IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.2666/2019 BETWEEN:
ROLLY CARIAPPA @ ROLLY CARIAPPA AGED ABOUT 41 LYEARS S/O A.N. RAJU RESIDING AT NO.15, 6TH MAIN 6TH CROSS, POSTAL COLONY SANJAY NAGAR BENGALURU - 560 094.
(BY SRI. M.T. NANAIAH., SR. COUNSEL A/W SRI. PRABHUGOUD TUMBIGI., ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY MADIKERI TOWN POLICE STATION MADIKERI, REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT COMPLEX BENGALURU - 560 001.
2. NISHA KUMAR P.N D/O P.K. NANAIAH AGED ABOUT 34 YEARS W/O ROLLY CARIAPPA R/O RAJARAJESHWARI NILAYA BLOCK NO.21, DECHUR POST MADIKERI.
ALSO TO BE SERVED AT JSW STEEL LTD., NO.607 6TH FLOOR, EAST WING ... PETITIONER RAHEJA TOWERS, M.G. ROAD BENGALURU - 560 001.
... RESPONDENTS (BY SRI. S. RACHAIAH., HCGP FOR R-1;
SRI. N. JAGADISH BELIGE., ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.26/2019 REGISTERED BY MADIKERI TOWN POLICE/RESPONDENT NO.1 FOR THE OFFENCE P/U/S.506, 504, 323, 326 AND 307 OF IPC, NOW THE CASE IS PENDING ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSION JUDGE, MADIKERI, KODAGU.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner who is the sole accused in S.C.No.26/2019 registered for the offences punishable under Section 506, 504, 323, 326 and 307 of IPC by Madikeri Town Police Station pending on the file of Principal District and Sessions Judge, Madikeri, Kodagu, is before this Court for quashing of said proceedings.
2. Marriage between petitioner and second respondent came to be solemnised on 22.12.2011 at Kodava Samaja at Bangalore and subsequently registered in the Office of Registrar of Marriages, Ganganagar, Bangalore. Due to mental incompatibility between them, they are said to be residing separately from 20.03.2017 and marriage having been consummated, second respondent gave birth to a female child and it is said to be in the custody of second respondent. In the meanwhile, petitioner is said to have visited his father-in-law at Madikeri, Coorg, on 01.02.2018 and at that point of time under the pretext of enquiring about the health of informant - Sri.P.K.Nanaiah, petitioner assaulted him by hand and also smashed his head to the teapoy resulting in said Sri.P.K.Nanaiah suffering injuries on his face. As such jurisdictional police have registered the complaint in Crime No.19/2018 for the aforesaid offences and after completion of investigation charge sheet has to been filed.
3. Subsequently committal order has been passed and matter is now pending before the Principal District and Sessions Judge, Madikeri, Kodagu in S.C.No.26/2019. In the meanwhile, petitioner herein filed a petition under Section 13(1)(i-a) of Hindu Marriage Act, 1955, for dissolution of marriage, which came to be referred to mediation wherein settlement was arrived at between parties in M.C.No.1341/2018 and same was accepted by learned Judge of the Family Court resulting in decree of divorce being passed by order dated 23.03.2019.
4. In this background, parties have appeared before this Court and have filed a joint memo narrating these facts and also the fact that informant namely, father of second respondent having expired on 26.05.2018 due to age related ailments. In this background, second respondent who is none other than daughter of informant has signed the joint memo and it is stated by her thereunder that she does not intend to prosecute the complaint lodged by her father against her former husband namely, petitioner herein and she intends to withdraw the same or in other words she would have no objection for proceedings pending against petitioner being quashed. However, she has submitted that her only apprehension is that she should not be disturbed by the petitioner at any point of time or her daughter being disturbed except petitioner having visitation rights to the child. In fact, under the memorandum of agreement entered into between parties in M.C.No.1341/2018, it has been agreed between parties that custody of minor child would be with second respondent herein and as such apprehension expressed by second respondent would stand allied by the terms agreed to between parties. To establish the identity of the parties present before Court, photocopies of identity cards issued by statutory authorities is also produced along with joint memo.
5. At this juncture, Sri.S.Rachaiah learned HCGP appearing for respondent-State would submit that since prosecution has invoked Section 307 of IPC, same would not be a compoundable offence and submits that this Court should refrain itself from exercising the jurisdiction in quashing the proceedings. In support of his submission he has relied upon the judgment of Apex Court in the case of THE STATE OF MADHYA PRADESH vs. LAXMI NARAYAN AND OTHERS in Crl.A.No.349/2019 disposed of on 05.03.2019.
6. Having regard to said contention of HCGP and the fact that prosecution has invoked Section 307 of IPC and also keeping in mind the principles laid down by Hon’ble Apex Court in the matter of GIAN SINGH vs. STATE OF PUNJAB AND ANOTHER reported in (2012) 10 SC 303 it requires to be noticed that an offence under Section 307 IPC is non compoundable, which dispute is not a private dispute between two parties. Section 307 of IPC would fall in the category of heinous and serious offence and therefore are to be generally treated as crime against society and not against the individual alone. Hon’ble Apex Court in LAXMI NARAYAN’s case after having referred to earlier judgments namely, KALYAN SINGH, DHRUV GURJAR and NARINDER SINGH has held:
“10. Now so far as the decision of this Court in the case of Narinder Singh (supra) is concerned, this Court in paragraph 29.6 admitted that the offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, this Court further observed that the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed. Its further corroboration with the medial evidence or other evidence is to be seen, which will be possible during the trial only. Hence, the decision of this case in the case of Narinder Singh (supa) shall be of no assistance to the accused in the present case.”
7. In the light of above dicta of Hon’ble Apex Court the facts obtained in each case will have to be evaluated independently namely, this Court would not rest its decision merely on the ground that there is a mention of Section 307 of IPC in the FIR or in the charge sheet or contention is raised by the learned Prosecutor. If the ingredients of Section 307 IPC are not to be found in the complaint or from the charge sheet material or in other words, if the uncontroverted charge sheet material would not lead to conviction of accused for said offence and even in such circumstances prosecution cannot be heard to contend that on account of Section 307 IPC having been invoked proceedings should not be quashed.
8. In this background, when allegations made in the complaint as well as charge sheet material on hand is perused it would only indicate that petitioner herein is alleged to have used his fist to assault on the face of deceased informant and he has also smashed informant’s head to the teepoy, which was located in the room where petitioner and deceased informant was sitting. Thus, by no stretch of imagination ingredients of Section 307 of IPC would be attracted to the facts and circumstances of the case. Even if accepted that charge sheet material or allegations made in the complaint were to remain unrebutted, it would not lead to conviction of accused for the alleged offence under Section 307 IPC.
9. Hence, keeping afroestated principles in mind and also statement made by the complainant and the fact that informant having expired his daughter having submitted that out of her own free will without any force, threat or coercion she has affixed her signature to the joint memo, this Court in order to ascertain the intention of informant’s daughter to withdraw allegations made by her father against petitioner requested Smt. Vijaya, learned Member of this Bar who was present before Court to interact with 2nd respondent as to her willingness to withdraw the complaint lodged by her deceased father and as suggested, Smt. Vijaya learned Member of the Bar interacted with the daughter of the complainant i.e., second respondent, who is cited as a witness by the prosecution (C.W.5) and having been informed that 2nd respondent having expressed her willingness voluntarily to withdraw the complaint lodged by her father particularly in the background of entire matrimonial dispute with petitioner having been resolved, this Court is of the view that there is no impediment to accept the said joint memo.
Hence I proceed to pass the following:
ORDER (i) Criminal petition is allowed.
(ii) Proceedings pending against petitioner in S.C.No.26/2019 registered for the offences punishable under Section 506, 504, 323, 326 and 307 of IPC by Madikeri Town Police Station pending on the file of Principal District and Sessions Judge, Madikeri, Kodagu, is quashed and petitioner is acquitted of the aforesaid offence.
This Court places on record the services rendered by Smt.Vijaya and direct the Karnataka State Legal Services Authority to pay a sum of `2,500/- as professional fee to her by issuing cheque forthwith.
SD/-
JUDGE DR