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Karnataka High Court · body

2007 DIGILAW 651 (KAR)

U. VALI BASHA v. MOHD. BASHU

2007-10-05

K.RAMANNA

body2007
ORDER K. Ramanna, J. 1. Though the matter is listed for admission by consent of learned Counsel for the petitioner and Respondent No.1 who is party in person and also Advocate for Respondent No. 2, it is taken up for final hearing and disposed of. 2. This petition is filed under Section 482 Cr.P.C. to set aside or quash the order dated 12/3/2007 passed by the Prl. Civil Judge (Jr.Dn.) J.M.F.C, Hospet in P.C. No. 10/07 and the order dated 11/4/2007 passed by the Prl. Sessions Judge, Bellary in Crl.R.P. No. 71/2007 and to direct the trial Court to proceed against the respondent by accepting the a sworn statement of the petitioner and his witnesses. 3. The case of the petitioner is that on 11/8/2003 at about 5.30 p.m. in front of Girls Junior college, Hospet, the respondent herein wrongly restrained this petitioner, abused aim in filthy language and threatened him with dire consequences and also threatened him that they would finish him, if he failed to withdraw his vakalath in C.C. No. 774/2000. Further case of the petitioner is that after the incident he rushed to the police station along with his witnesses to lodge a complaint. They did not receive the same, therefore the petitioner filed a private complaint 258/03 before the J.M.F.C. Hoapet. The J.M.F.C., Hospet accepted the affidavit evidence of the petitioner and his witnesses, leaned process against the respondents by registering a case in C.C. No. 3037/00. During the pendency of this case the District and Sessions Judge, Bellary, transferred the said case to J.M.F.C. H.B. Halli and renumbered as C.C. No. 143/04, thereafter on 24/12/2004 the said case was dismissed for default, therefore, he filed 2nd complaint on 19.2.2005 in PC No. 7/05 on the file of the JMFC H.B. Halli and on 6/1/2005 sworn affidavit of the petitioner and his witnesses in the form of examination-in-chief have been filed and the matter was posted for orders. In the meanwhile, the petitioner has filed an application for transfer of the case and counter case. Accordingly, the Principal Sessions Judge transferred both the cases to Prl. Civil Judge (Jr. Dn.) & J.M.F.C. Hospet and renumbered as P.C. 1/07. After hearing the arguments of both the parties the J.H.F.C. Hospet, passed the order on 12/3/2007 and listed the matter for recording the sworn statement of the petitioner-complainant and his witnesses. Accordingly, the Principal Sessions Judge transferred both the cases to Prl. Civil Judge (Jr. Dn.) & J.M.F.C. Hospet and renumbered as P.C. 1/07. After hearing the arguments of both the parties the J.H.F.C. Hospet, passed the order on 12/3/2007 and listed the matter for recording the sworn statement of the petitioner-complainant and his witnesses. The said Court has not accepted the affidavit filed by the petitioner-complainant and his witnesses. The said order was challenged by the petitioner in Cr.R.P. 71/07 before the Prl. Sessions Judge, Bellary. The learned Sessions Judge dismissed the revision petition and confirmed the order passed by the learned trial Judge. Therefore, he has come up with this petition under Section 482 of Cr.P.C. that there is abuse of process of law in not accepting the evidence affidavit of the petitioner-complainant and his witnesses in the form of sworn statement to proceed against the respondents. Hence, this petition. 4. Heard the arguments of Sri learned Counsel for the petitioner, Respondent No. 1 who is in person and advocate for Respondent No. 2. 5. It is contended by the learned Counsel for the petitioner that though the Court below held that 2nd complaint is maintainable, it did not accept the evidence affidavit of the petitioner-complainant and his witnesses in the form of sworn statement therefore, the Court below has failed to considered the affidavit and proceed against the respondent. It is argued that when sworn statement of the party is made before competent public officer then such sworn statement can be taken as evidence to take cognizance of the case when the private complaint is filed and under Sections 4 and 5 of Evidence Act the Court should presume the existence of certain facts. It is further argued that under Section 200 Cr.P.C. before taking cognizance the Court is expected to make enquiry to find a prima facie case but it is not a trial. It is further argued that Under Section 200 Cr.P.C. and also under Sections.4 and 5 of the Evidence Act the Court can accept the evidence affidavit of the petitioner-complainant and his witnesses to find out the prima, facie case and issue process to the accused persons. Therefore, the impugned order under challenge passed by the trial Court in not accepting the evidence affidavit of petitioner and his witnesses is incorrect and Illegal. Therefore, the impugned order under challenge passed by the trial Court in not accepting the evidence affidavit of petitioner and his witnesses is incorrect and Illegal. Hence, the order under challenge is liable to be set aside and direct the Court below to accept the sworn statement produced in the form of evidence by the petitioner-complainant and his witnesses. In this behalf the learned Counsel for the petitioner relied on a decision rendered by this Court in the case of Smt. Channakka and Ors. v. Mahantappa reported in 2006 Cri.L.J. 1560, wherein this Court has held that: “Evidence Act (1 of 1872), Section 3 - Criminal P.C. (2 of 1974), Section 125 - petition claiming maintenance - evidence on record not considered in proper perspective by Family Court - Rejection of “affidavit evidence” simply on grounds that it does not fit into term “evidence” as defined.” He has also relied on another decision of the Hon’ble Apex Court in the case of Dr. S.S. Khanna v. Chief Secretary, Patna and Anr. reported in AIR 1983 SC 595 , wherein the Apex Court has held that: “An inquiry under Section 202 is not in the nature of a trial for there can be in law only one trial in respect of any offence and that a trial can commence only after process is issued to the accused.” A person against whom a complaint is filed does not become an accused until it is decided to issue process against him. Therefore, that the respondent Nos. 1 and 2 are not entitled to participate in the inquiry proceedings before receipt of summons. The object of inquiry under Sections 202 Cr.P.C. is the ascertainment of the fact whether the complaint discloses the prima facie case calling for issue of process etc. Therefore, it is submitted that the Court below has not properly interpreted the provisions of Section 202 of Cr.P.C. Section 3 of Evidence Act and also provisions of Section 51 of Indian Penal Code in not accepting the affidavit of petitioner and his witnesses in the form of evidence. Hence, the said order passed by the Court below is abuse of process of law and miscarriage of justice in directing the Court to post the case for recording the sworn statement of the petitioner-complainant and his witnesses. 6. Hence, the said order passed by the Court below is abuse of process of law and miscarriage of justice in directing the Court to post the case for recording the sworn statement of the petitioner-complainant and his witnesses. 6. On the other hand, learned Counsel for Respondent No. 2 argued that earlier complaint came to be dismissed for non-prosecution. On the same set of facts he has filed second complaint and without entering the witness box the petitioner-complainant has produced the affidavit in the form of evidence and his witnesses, which is not at all maintainable. The Court below has not accepted the evidence filed in the form of affidavit. Therefore, the present petition filed by the petitioner is only abuse of process of law. The Courts below have elaborately discussed why they have not accepted the evidence in the form of affidavit to find out the prima facie case. There is no process of law to entertain this petition and the petition deserves to be dismissed. It is further argued that the Court below has not dismissed the complaint but only it has not accepted the sworn statement of the petitioner-complainant and his witnesses. It is argued that the petitioner has hesitated to enter the witness box to make statement and also examine the witnesses to find out the prima facie case to issue process by the trial court, therefore, the present petition is liable to be rejected. 7. I have carefully examined the materials placed on record. The admitted facts are that the petitioner initially filed a complaint on the file of the J.M.F.C. Hospet against Respondent Nos. 1 and 2, after taking on record the affidavit filed by the petitioner-complainant as well as witnesses, it issued process to respondent. In the meanwhile the matter was transferred to the J.M.F.C. H.B. Halli. In the meanwhile, both this case and counter cases were clubbed and posted the matter before J.M.F.C. Hospet. Accordingly, it is numbered as P.C. No. 1/07. Accordingly, the J.M.F.C. Hospet after hearing the arguments of both the parties passed orders posting the matter for recording the evidence in the form of statement on oath to find out the prima facie case. A detailed order came to be passed, which is under challenge. 8. Accordingly, it is numbered as P.C. No. 1/07. Accordingly, the J.M.F.C. Hospet after hearing the arguments of both the parties passed orders posting the matter for recording the evidence in the form of statement on oath to find out the prima facie case. A detailed order came to be passed, which is under challenge. 8. In order to appreciate the contention of the learned Counsel for the petitioner it is just and proper to go through Section 51 of the Indian Penal Code. “Oath”:- The word “Oath” includes a solemn affirmation substituted by law for an oath, and any declaration required or authorised by law to be made before a public servant or to be used for the purpose of proof, whether in a court of Justice, or not.” In ray considered view Section 51 of Indian Penal Code is not at all applicable to this case on hand. Section 200 of Cr.P.C. specifically says that Magistrate taking cognizance of the offence on a complaint shall examine upon oath the complainant and the witnesses, if any and the substance of such examination shall he reduced to writing and shall he signed by the complainant and the witnesses, and also by the Magistrate. 9. But in the instant case the petitioner-complainant and his witnesses filed evidence in the form of affidavit. But there is a duty cast upon the Magistrate to record the sworn statement of the complainant and his witnesses and take their signature. Therefore, the provision of Section 51 of IPC is not at all applicable to the facts of the case on hand. The learned Sessions Judge in Crl.R.P. 71/07 has elaborately discussed about the non-applicability of Section 51 and the ratio laid down by this Court in the case of Smt. Channakka and Ors. v. Mahantappa reported in 2006 Crl.L.J. 1560. In that case the wife and children of the respondent-Mahantappa filed a petition under Section 125 of Cr.P.C. that the Magistrate is required to follow summary proceedings, therefore the affidavit filed by the petitioners in that case in the form of evidence has been received. In the instance case, the case has been registered against the petitioner who has filed a private complaint against Respondents 1 and 2 for the offence punishable under Sections 341, 323, 504, 506 read with Section 34 Indian Penal Code. In the instance case, the case has been registered against the petitioner who has filed a private complaint against Respondents 1 and 2 for the offence punishable under Sections 341, 323, 504, 506 read with Section 34 Indian Penal Code. Though the offence under Sections 341 and 323 is bailable but Sections 504 and 506 is non-bailable offence, therefore, strict rules of procedural law should be followed by the Magistrate. In case of Sadha Devi v. M.P. Narayanan reported in AIR 1988 SC 1381 , it is held that affidavits are not included in the definition of evidence in Section 3 of the Evidence Act and can be used, only if the Court permits it to be so used for sufficient reasons. Therefore, the learned Sessions Judge as well as trial Court were right in not accepting the affidavit in the form of evidence. Therefore, viewed from any angle I do not find any abuse of process of law or miscarriage of justice in not accepting the affidavit of the petitioner-complainant and his witnesses and posting the matter for recording the sworn statement of petitioner and his witnesses to find out the prima facie case. Therefore, this petition is dismissed.