IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.2945/2014 Between:
Sri H. Ramanna @ Ramanji S/o. Narayanappa Aged about 41 years R/at Nagamangala Hosahalli Village Jangamakote Hobli Sidlagatta Taluk Chikkaballapura District PIN – 562 101. … Petitioner (By Sri Srinatha B.V., Advocate for Sri M.R. Manjunatha Gowda, Advocate) And:
1. Smt. C.K. Vijayamma W/o. H.N. Ramanna Aged about 30 years 2. Kum. Kruthika D/o. H.N. Ramanna Aged about 10 years 2nd respondent being minor Represented by her natural guardian Cum mother C.K. Vijayamma Both are residing at Chokkandahalli Jangamakote Hobli Sidlagatta Taluk Chikkaballapura District PIN – 562 101. ...Respondents (By Sri Kalyan R, Advocate) This Criminal Petition is filed under Section 482 of Cr.P.C., praying to set aside the judgment and order dated 04.12.2010 passed by the Prl. C.J. and J.M.F.C., Sidlaghatta in Crl. Misc. No.39/2008 and order dated 28.03.2014 passed by the Adhoc District and S.J., FTC-II, Chintamani in Crl. R.P. No.5/2011.
This Criminal Petition coming on for Admission this day, the Court made the following:
O R D E R Heard learned counsel for the petitioner. Learned counsel for the respondents is absent. Perused the petition.
2. The only contention urged by the petitioner is that the trial Court has erred in accepting the affidavit evidence of the respondents in the proceedings under Section 125 of Cr.P.C.
3. In support of his submission, the learned counsel has placed reliance on the decision of this Court in the case of Smt.Aruna @ Suvarna and Another vs. Marilingappa reported in ILR 2009 KAR 3728, wherein this Court considered the question as to whether Section 126 of Cr.P.C permits evidence by way of affidavit or not. Referring to the said provision and Section 125 of Cr.P.C, it is held by this Court that all evidence in respect of Section 125 of Criminal Procedure Code proceedings shall have to be recorded in the manner prescribed for summons cases. The procedure that is prescribed for recording of evidence in summons case is to be found in Section 274 of the Criminal Procedure Code. The said Section reads as under;
“Section 274. Record in summons-cases and inquiries.-
(1) In all summons-cases tried before a Magistrate, in all inquiries under Sections 145 to 148 (both inclusive), and in all proceedings under Section 446 otherwise than in the course of a trial, the Magistrate shall, as the examination of each witness proceeds, make a memorandum of the substance of the evidence in the language of the Court:
Provided that if the Magistrate is unable to make such memorandum himself, he shall after recording the reason of his inability, cause such memorandum to be made in writing or from his dictation in Open Court.
(2) Such memorandum shall be signed by the Magistrate and shall form part of the record.”
4. In view of the above provision, it is held by this Court that the Criminal Procedure Code does not contemplate evidence by way of affidavit in respect of the proceedings under Section 125 of Cr.P.C. In view of this exposition of law, the impugned order is liable to be set-aside. Hence, the following;
ORDER The petition is allowed.
The impugned order dated 04.12.2010 passed in Crl.Misc.39/2008 on the file of the Principal Civil Judge and JMFC at Sidlaghatta and the subsequent order dated 28.03.2014 passed in Crl.Rev.Pet.No.5/2011 on the file of the Fast Track Court-II at Chintamani are set-aside.
The matter is remitted to the trial Court to record the evidence and to provide an opportunity to respondent No.1 to adduce her oral evidence in accordance with law and thereafter, proceed in the matter in accordance with law.
The parties are directed to appear before the learned Magistrate on 06.05.2019 without any further notice.
Office is directed to release the amount of Rs.10,000/- in Court deposit to respondent No.1 towards litigation expenses, by way of cheque, on proper identification.
Sd/-
JUDGE NBM