IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 8TH DAY OF DECEMBER, 2017 :BEFORE:
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA CRL.R.P. Nos.1068/2017 & 1156/2017 IN CRL.RP NO.1068/2017 BETWEEN:
1. SHAMABANU IMTIYAZ AHMED JAMBAGI, W/O IMTIYAZ AHMED JAMBAGI, AGE 30 YEARS, OCC: HOUSEHOLD, R/AT H.NO. 1508, ANMOL, C-4TH CROSS, SANJEEVININAGAR, SK LAYOUT, 2ND STAGE, DAVANAGERE 577 005 2. IMTIYAZ AHMED JAMBAGI, S/O. MOULASAB JAMBAGI, OCC: PVT SERVICE, 1ST MAIN, 4TH CROSS, PRASHANTHNAGAR, HARIHAR 577 601 3. ALI SAB NADAF, S/O. HAJARESAB, AGE 48 YEARS, OCC: EX. SERVICEMAN, R/AT D.NO. 4000/1-C5, 2ND MAIN, 13TH CROSS, VINOBANAGAR, DAVANAGERE 577 006 … PETITIONERS (BY SRI. C. H. JADAHAV., SR. COUNSEL FOR SMT. RASHMI JADHAV, ADV.) AND:
STATE OF KARNATAKA, BY HIGH GROUNDS POLICE STATION, REP. BY SPECIAL PROSECUTOR, HIGH COURT BUILDING, BENGALURU 560 001 ... RESPONDENT (BY SRI. NASRULLA KHAN, HCGP) THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 28.08.2017 PASSED BY THE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN S.C.NO.472/2015 AND CONSEQUENTLY DISCHARGE THE PETITIONERS.
IN CRL.RP NO. 1156/2017 BETWEEN:
1. SHAMMEMRAJ M. NADAF, S/O MOHINUDDIN JAMLSAB NADAF, AGED ABOUT 31 YEARS, OCC:TCS EMPLOYEE, NO.1508, C ‘4’ CROSS, SANJEEV NAGAR, S.K.COLONY, 2ND STAGE, DAVANAGERE – 577 001 2. MOHINUDDIN JAMALSAB NADAF, S/O LATE JAMALASAB NADAF, AGED ABOUT 67 YEARS, OCC:RETD. INSPECTOR OF POLICE, NO.1508, C ‘4’ CROSS, SANJEEV NAGAR, S.K.COLONY, 2ND STAGE, DAVANAGERE – 577 001 3. SMT.SHAHAJAD BEGUM M. NADAF, W/O MOHINUDDING JAMALSAB NADAF, OCC:HOUSEWIFE, NO.1508, C ‘4’ CROSS, SANJEEV NAGAR, S.K.COLONY, 2ND STAGE, DAVANAGERE – 577 001 … PETITIONERS (BY SRI. C. H. JADAHAV., SR. COUNSEL FOR SMT. RASHMI JADHAV, ADV.) AND:
STATE OF KARNATAKA, BY HIGH GROUNDS POLICE STATION, REP. BY SPECIAL PROSECUTOR, HIGH COURT BUILDING, BENGALURU 560 001 ... RESPONDENT (BY SRI. NASRULLA KHAN, HCGP) THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 CR.P.C PRAYING TO SETTING ASIDE THE ORDER DATED 28.08.2017 PASSED BY THE LEARNED PRINCIPAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU CITY IN S.C.NO.472/2015 AND CONSEQUENTLY DISCHARGE THE PETITIONERS.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners in Crl.R.P. No.1068/2017 are Accused Nos. 4 to 6 and the petitioners in Crl.R.P. No.1156/2017 are Accused Nos. 1 to 3 in SC No.472/2015 pending on the file of the Principal City Civil and Sessions Judge at Bengaluru City, 2. The above said two revision petitions are arising out of a common order dated 28.08.2017 in SC No.472/2015 passed by the trial Court, on the application filed by the accused persons under Section 227 of Cr.P.C.
3. The records disclose that, the learned Sessions Judge has rejected the application in SC No.472/2015 under Section 227 of Cr.PC.. The respondent-Police have laid the charge sheet against as many as six accused persons in C.C. No.34321/2014 for the offences punishable under Sections 376, 498-A, 420, 504, 506, 201, 120(B) of IPC and after committal, the case has been registered before the Principal City Civil and Sessions Judge, Bengaluru, in SC No.472/2015.
4. Accused Nos. 1 to 6, who are the petitioners in the above said two criminal petitions have filed an application under Section 227 of Cr.PC. for their discharge from the above said offences. The application contains various grounds urged by the petitioners. The said application was contested by the State by filing objections countering the grounds made there in the application. The trial Court has dismissed the said application even without whispering as to what are the prima facie materials available on record. The order which is in the manuscript of the learned Sessions Judge is also not readable in nature. In various decisions of this Court it is made amply clear that, if the handwriting of the Judicial Officer is not properly understandable, then the order should be got typed and thereafter it should be pronounced. In this particular case, as could be seen, the order passed by the learned Sessions Judge is not even readable and more over with great difficulty, this court has read the order of the trial Court, which is bereft of any reasons, as the learned Sessions Judge has not even spelt out as to what are the materials he has perused; what are the contents of the materials and as to how and why the learned Sessions Judge has come to the conclusion that there are grounds to proceed against the accused persons. In this regard, it is worth to reproduce the provision of Section 227 of Cr.P.C., which reads as under:-
227. Discharge.- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
5. In view of the above provision, it is incumbent upon the learned Judge to find-out whether there are any sufficient grounds to proceed against the accused. The Court has to say as to what are all the materials available and examined by the court and what are the submissions made by the parties and what material is available for consideration of the trial Court. Therefore, it is not and idle formality to pass order mechanically under Section 227 of Cr.P.C. and the Court has to apply its Judicious mind. The object of Section 227 is to see that, if the accused is innocent and no grounds are available to proceed against him, he should not be made to suffer an ordeal of long trial before the court. If no materials are available, instead of wasting time, the matter should be nipped at the bud and the court should bear-in-mind that it is an important stage to consider all the materials on record and thereafter to pass appropriate orders.
6. At this stage it is worth to refer a decision of the Hon’ble Apex Court reported in AIR 2010 SC 663 between P. Vijayan Vs. State of Kerala, wherein it has been observed thus:
“If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words ‘not sufficient’ ground for proceeding against the accused clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution ”
that,-
7. In the said decision Further, it is observed “……. Sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court, which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him…….”
8. While dealing with the application under Section 227 of Cr.P.C. for discharge, the trial Court has to mainly concentrate and ascertain whether the circumstances of the case creates any strong suspicion or only there are mere suspicion and then to pass appropriate orders.
9. None of these principles narrated in the above said decision (cited supra), have been followed by the trial Court while passing the order impugned in these revision petitions. Such an attitude has to be deprecated. Therefore, I am of the view that the said order requires to be set aside and the matter requires to be remitted to the trial Court for reconsideration of the application filed by Accused Nos. 1 to 6. In the circumstances, I pass the following:
ORDER The petitions are allowed. The order dated 28.08.2017 passed by the learned Principal City Civil and Sessions Judge, Bengaluru City, in SC No. 472/2015 is hereby set aside. The applications filed by the petitioners/accused seeking discharge, are restored on to the file of the learned Principal City Civil and Sessions Judge, Bengaluru City, for reconsideration of the same in the light of the observation made in the body of this order and to pass appropriate order.
KGR* Sd/-
JUDGE