IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28th DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.5703 OF 2016 BETWEEN:
Sri R Shravan Kumar Shetty Aged 32 years S/o K.Raghunath Shetty R/a ‘Shreyanka Nilaya’ Adumaroli, Kulshekar Post Mangaluru-570 005 …Petitioner (By Sri.P.P.Hegde, Advocate) AND:
Sri K Raghunath Shetty Aged 65 years S/o Late Thyamapanna Shetty R/a ‘Shreyanka Nilaya, Adumaroli, Kulshekar Post Mangaluru-570 005 ...Respondent (By Sri.M.K.Venkataramana, Adv) This Criminal petition is filed under Section 482 of Cr.P.C. praying to this Hon’ble Court may be pleased to quash the complaint dated: 01.04.2016 filed by the Respondent in P.C.No.36/2016 on the file of JMFC (III Court), Mangalore, D.K., in P.C.No.36/2016 (Now registered as C.C.No.1191/2016) directing to register Criminal case against the petitioner for the offences P/U/S 323, 341, 504, 506 of IPC and issuance of summons to he accused/petitioner. Herein and all further proceedings in the said case and etc.
This Criminal petition coming on for admission, this day, the Court made the following:
O R D E R Parties to these proceedings are son and father. Their relationship appears to have been strained on account of the domestic dispute between the respondent and his wife. In that context, the respondent/complainant lodged a private complaint before the learned Magistrate, Mangalore, under Section 200 of Cr.P.C. seeking action against the petitioner/son for the offences punishable under Sections 323, 341, 504 and 506 of IPC.
2. In the complaint, it was alleged that on 31.12.2015 at about 9.30 a.m., when the complainant was getting ready to go to the temple, the petitioner herein addressed him in a filthy language and told him not to use his car and abused him and also assaulted him and hit his head against the wall and kicked him with legs and assaulted him on his cheek and other parts of the body and also threatened that he will not leave him alive.
3. The sworn statement of the complainant was recorded and by the impugned order dated 15.04.2016, the learned Magistrate took cognizance of the aforesaid offences and issued summons to the petitioner to answer the charges for the offences punishable under Sections 323, 341, 504 and 506 of IPC.
4. Learned counsel for the petitioner submitted that the allegations made against the petitioner have to be understood in the context of strained relationship between the complainant and his wife. At the instance of the wife of the respondent, a protection order was passed against the complainant and he was restrained from committing any domestic violence and was also restrained from alienating the house and immovable properties. Since the respondent was not in good terms with his wife, the criminal proceedings have been initiated against the petitioner out of spite and vengeance as he was in good terms with his mother.
He further submitted that the allegations made against the petitioner do not disclose the commission of the offences punishable under Sections 323, 341, 504 and 506 of IPC. The learned Magistrate without appreciating the materials on record, has mechanically ordered summons to the petitioner. 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. As a result, the matter is liable to be remanded to the learned Magistrate to record the sworn statement of the complainant in accordance with the procedure contemplated under the Code.
5. Learned counsel for the respondent however has argued in support of the impugned order and would submit that the materials on record clearly make out the offences alleged against the petitioner and therefore, there is no reason to interfere with the impugned order.
6. Considered the submissions made by the learned counsels appearing for the parties and perused the materials available on record.
7. A reading of the complaint disclose that the petitioner was residing in Bangalore and occasionally he used to visit the house of the complainant. The circumstances narrated in the complaint indicate that on the date of the alleged incident, he had visited the house of the complainant. There is nothing in the entire complaint or in the statement of the complainant to suggest that the petitioner was restrained from entering the said house. In the said circumstances, his entry into the house does not become unlawful. Further, the complainant has nowhere stated in the complaint or in his statement that the petitioner herein had confined him into his house. In the absence of any such averment, it was not proper on the learned Magistrate to take cognizance of the offence under Section 341 of IPC. Therefore, the order of taking cognizance for the offence under Section 341 of IPC is liable to be set aside in limine.
8. Insofar as the charges under Sections 324, 504 and 506 are concerned, reading of the complaint would indicate that on the date of the alleged incident, the petitioner herein is alleged to have asked the complainant not to use the car and assaulted him and also kicked and punched him on his cheek and other parties of the body. There is inconsistency in the nature of the injuries alleged to have been suffered by the petitioner as narrated in the complaint and in the wound certificate. Though it is stated that during the occurrence, the petitioner herein hit the head of the complainant against the wall and also kicked him and punched on his face, the injuries suffered by the complainant as described in the would certificate are as follows:-
(i) small abrasion over vertex measuring 0.5 x 0.5 cms.
(ii) Pain over neck and cheek.
Therefore, it is evident that the complainant has given an exaggerated version of the entire event with a view to bolster up the charges against the petitioner. The facts brought on record do not make out any ingredients of the offences punishable under Sections 504 and 506 of IPC either.
9. The materials on record indicate that the wife of the petitioner is also a resident of the very same house. The complaint is silent with regard to her presence in the house at the time of occurrence which again indicate that except the self statement of the complainant, no other material is available to support the allegations made against the petitioner.
10. Therefore, taking into consideration all these facts and circumstances, in my view, the learned Magistrate could have taken cognizance only for the offence punishable under Section 323 of IPC and not for any other offences. Therefore, the impugned order taking cognizance of the offences punishable under Sections 341, 504 and 506 of IPC being contrary to the materials on record cannot be sustained.
11. Another defect staring on the face of the record is that the learned Magistrate has administered oath to the complainant and recorded his examination-in-chief through his counsel. A reading of the said statement would indicate that the said evidence has been conducted by the Advocate and it is not the sworn statement of the complainant as contemplated under Section 200 of Cr.P.C. In this regard, the Division Bench of this Court in the aforesaid case (supra) has held that such a procedure has no legal sanction and is a curable irregularity. Hence, the order of the learned Magistrate taking cognizance based on the said statement of the complainant cannot be allowed to stand.
11. Consequently, the petition is allowed. The impugned order dated 15.04.2016 passed by the JMFC (III) Court, Mangalore, in P.C.R.No.36/2016 (C.C.No.1191/2016) is hereby quashed. The matter is remanded back to the learned Magistrate to proceed from the stage of recording the sworn statement of the complainant and thereafter, proceed in accordance with law. It is made clear that cognizance of the offence has to be taken only for the offence punishable under Section 323 of IPC.
Srl.
Sd/- JUDGE