IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.1175 OF 2015 BETWEEN:
1. SAYEED ZAFRULLA S/O. SYED AHMED PEERJADE AGED ABOUT 51 YEARS R/O. ROSE GARDEN JALI ROAD, BHATKAL KARWAR DISTRICT-581 320.
2. NASIR HUSAIN JUSHIDDI S/O. MOHAMMED JAFAR JUSHIDDI AGED ABOUT 39 YEARS R/O. NO.73, “KARURI MANZIL” SIDDIQUI ROAD, BHATKAL KARWAR DISTRICT-581 320.
3. MOHAMMED MAKEEN S/O. UMMAR SAHEB MOHATHESHAM AGED ABOUT 49 YEARS R/O. SULTHAN ROAD, BHATKAL KARWAR DISTRICT-581 320.
4. RAMAKRISHNA S/O. MAHADEVA NAYAK AGED ABOUT 39 YEARS N.H.NO.17, VENKATAPURA BHATKAL KARWAR DISTRICT-581 320.
5. MAHADEVA NAYAK (M.L.NAYAK) AGED ABOUT 63 YEARS OCC: RETIRED TELECOM ENGINEER N.H. NO.17, VENKATAPURA BHATKAL KARWAR DISTRICT-581 320.
(BY SRI: R.B. DESHPANDE, ADVOCATE) AND:
IBRAHIM S/O. KODI MOHAMMED AGED ABOUT 62 YEARS OCC: BUSINESSMAN R/O. TIP TOP MANSON JANNATH NAGAR, 1ST CROSS SAGARA-577 401.
…PETITIONERS …RESPONDENT (BY SMT. GAYATHRI BHAT H., ADVOCATE FOR SRI P.P. HEGDE, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.679/2014 PENDING ON THE FILE OF PRL.C.J. AND J.M.F.C., SAGAR.
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING :
O R D E R Petitioners have sought to quash the proceedings initiated in C.C.No.679/2014 for the offence punishable under Section 500 read with 149 of IPC.
2. The facts leading to the prosecution of the petitioners are as follows:
The complainant sent a legal notice to the petitioners. In the reply sent by the counsel for the petitioners, it was stated that ‘My clients reasonably suspect that the father of your clients No.1, 2 and 4 viz., Tiptop Ibrahim is the main criminal brain to send such frivolous notice under reply, to my clients‘. According to the complainant, the said statement amounts to defamation and therefore, the complainant sought criminal action against the petitioners herein for the alleged offence under Section 500 Indian Penal Code.
3. Learned counsel for respondent has raised two fold contentions. Firstly, the allegations made in the private complaint, even if accepted in its entirety, do not make out the ingredients of Section 500 Indian Penal Code. Secondly, part of sworn statement of the complainant was recorded through an Advocate opposed to Section 200 Cr.P.C.
4. Placing reliance on the decision of the Division Bench of this Court in the case of NAGANAGOUDA VEERANAGOUDA PATIL & ANOTHER vs. MALATESH H.KULKARNI & OTHERS (ILR 1997 KAR 2091), learned counsel has emphasized that instead of recording the sworn statement of the complainant as per Section 200 of Cr.P.C., the learned Magistrate directed the complainant to adduce his chief examination through his counsel as is evident from the deposition sheet. The said procedure is held to be an irregularity by the Division Bench of this court in the aforesaid case.
In view of the above facts and circumstances, the petition deserves to be allowed. Accordingly, the petition is allowed. The impugned order dated 02.12.2014 directing summons to the petitioners is quashed. The matter is remitted to the learned Magistrate to consider the complaint afresh in accordance with law. All the contentions urged by the parties are left open.
Sd/- JUDGE *AKC/mn/-