IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.9696 OF 2017 Between:
Suresh Naika, S/o. Laxmana Naika, Aged about 37 years, Occ: Petty Business, R/o Karehalli Hatti, Arasikere Taluk, Hassan District-573 103. …Petitioner (By Sri. Umesh.R.B, Adv., on behalf of Sri. R.B.Deshpande, Adv.,) And:
1. The State of Karnataka by Arasikere Rural Police Station, Arasikere Taluka, Hassan District-573 103.
(Represented by State Public Prosecutor, High Court Buildings, Bengaluru-560 001) 2. Smt. Shashibai, W/o. Manjanaika, Aged about 30 years, Occ: House Wife, R/o Karehalli Hatti, Arasikere Taluk, Hassan District-573 103. ... Respondents (By Sri. S.Chandrashekaraiah, HCGP) This Criminal Petition is filed under Section 482 of Cr.P.C praying to quash the impugned order dated 12.08.2017 passed by the Senior Civil Judge and JMFC, Arasikere in C.C.No.94/2016 allowing the application filed by the prosecution under Section 323 of Cr.P.C.
This Petition coming on for admission, this day, the Court made the following:
ORDER Though matter is listed for admission, by consent of learned advocates appearing for the parties, it is taken up for final disposal.
2. Heard.
3. Petitioner has been arraigned as accused in Crime No.189/2012 (C.C.No.94/2016) for the offence punishable under Sections. 497, 292,384 and 506 of IPC, before the trial court. During the course of trial, an application under Section 323 of Cr.P.C., came to be filed by the prosecution for committal of the case to Sessions Court contending that Section 376 of IPC is attracted by very heavily relying on the evidence of C.W.1 Smt. Shashibai.
4. It is not in dispute that on the basis of a complaint lodged by C.W.1 on 25/10/2012 which came to be registered in Crime No.189/2012 by Rural police, Arasikere, for the offence punishable under Sections. 497,292, 384 and 506 of IPC, investigation was taken up. Subsequently on completion of investigation, charge sheet came to be filed for the said offences and complainant was examined on behalf of prosecution as P.W.1. In her examination-in-chief, she has stated that one year prior to the date of lodging of complaint after having finished her lunch, she was grazing the cattle and accused who was from same village where she came from had spoken to her, induced her to have sexual intercourse with her and being well aware of the fact that she is wife of another person accused had sexual intercourse with her. She has also deposed that such acts were recorded in the mobile phone by accused and he was blackmailing her with a demand for money under threat that photos which has been captured on mobile would be shown to others. In her examination-in-chief, she has further deposed that accused person came to the spot, when she was grazing sheep and offered her plantain/banana and believing him she ate the fruit and was not aware and conscious of what was happening, as she had lost her conscious and at that point of time, accused had sexually assaulted her and recorded the said act in his mobile phone. It is because of said evidence having been brought on record by the prosecution through P.W.1 (C.W.1) which necessitated the prosecution to file an application under Section 323 of the Cr.P.C. for committal of the case to Sessions Court contending that the said act of the accused attracted Section 376 of IPC.
5. Learned Trial Judge has allowed the application on the ground that during the course of trial if it appears that accused seems to have committed said offence, he can commit the case even after filing of the charge sheet and it would not curtail the power of the Magistrate to pass such order in exercise of powers vested under Section 323 of the Cr.P.C. There cannot be any dispute with regard to said proposition at all. However, improvisation of the case by the prosecution, that too on the strength of a statement made before the Court which is not corroborated or supported by any iota of material and yet such power being exercised under Section 323 of the Cr.P.C., for passing an order of committal on the premise that offence alleged by the complainant would attract same would arise in the instant case.
6. As could be seen from the records, complaint has been filed one year after the alleged incident. There was not even a whisper of offering banana fruit by the petitioner/accused to the complainant and neither in her further statement recorded by the prosecution she has made any such statement nor such plea was raised by the prosecutorix namely, the victim lady, C.W.1 at any point of time. A stray statement made in the examination-in-chief by C.W.1 itself cannot be a ground to arrive at a conclusion that ingredients of Section 376 of IPC are attracted and as such, order of committal was not required to be passed. However, according to the investigating officer as well as charge sheet material, the offence alleged against the petitioner does not attract Section 376 of IPC and other provisions has been rightly not invoked. Hence, allowing the application by the learned Magistrate cannot stand the test of law.
7. Hence, I proceed to pass the following;
ORDER i) Criminal Petition is allowed.
ii) Order dated 12/08/2017 passed by Senior Civil Judge and JMFC, Arasikere in C.C.No.94/2016 allowing the application filed by the prosecution under Section 323 of Cr.P.C., is hereby set aside and said application stands dismissed.
SD/- JUDGE Msu