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2009 DIGILAW 658 (KAR)

Basawwa v. Ningappa

2009-08-21

H.G.RAMESH

body2009
ORDER Huluvadi G. Ramesh, J : This petition is filed against the order passed by the JMFC, Gokak in C.C.No. 724/2004 for the offence punishable U/S 141, 142, 143, 147, 323, 441, 504, 506 r/w Section 149 of IPC and taking cognizance and issuing process. 2. Respondent No.1 is said to have filed a complaint before the learned Magistrate on 29.10.2001 for the offences punishable U/s 200 of Cr.P.C. stating that the respondent No.1 and petitioner No.1 are husband and wife and that their marriage had taken place about 20 years back the laughter by name Nirmala was born to them on 29.11.1982 out of the wedlock. Petitioner No.2 is the brother of 1 petitioner. Petitioner No.3 is the "life of 2nd petitioner. Petitioner No.4 is brother of the 1st petitioner and petitioner No.5 is the wife of 4th petitioner. Petitioners 6 to 8 are the sons of petitioner No.4 and 5. Petitioner No.9 is son of 1st petitioner's brother and petitioner No. 10 is the mother of petitioner No.9. Petitioner No.11 is son of the maternal uncle of petitioner No.1. Except petitioner No.11 the remaining petitioners are permanently residing at Urbinhatti. According to the complainant, a quarrel arose between petitioner No.1 about one year prior to the filing of the complaint regarding the performance of the marriage of Nil' mala the daughter of petitioner No.1 and respondent No.1 as respondent No.1 was not willing to give his daughter Nirmala in marriage stating that she was still minor. However, after the quarrel petitioner No.1 and her daughter Nirmala went to the paternal house of petitioner No.1 without informing to the respondent-complainant. On 11.08.2000 petitioner No.1 at the instance of her brother and relatives performed the marriage of Nirmala with petitioner No.6 before the SubRegistrar, Gokak. Complainant is said to have lodged a complaint before Ankalgi police station. Since no action was taken, he filed a private complaint alleging that on 27.10.2001 all the petitioners forming themselves into unlawful assembly assaulted him with hands as he had objected to marriage of Nil' mala with petitioner No.6 and that petitioner No.1 instigated brothers to assault this complainant and as such brothers of petitioner No.1 assaulted the complainant and abused them in a filthy language and he was warned with dire consequences. On the basis of the private complaint after recording the evidence, the Magistrate taking cognizance issued process on 30.06.2004 as against which the revision was also filed before the Principal Sessions Judge, Belgaum, who had dismissed the said revision. Hence, this petition is filed U/S 482 seeking for quashing of the said order. 3. Heard. 4. It is the argument of the learned Counsel for the petitioners that there is no prima facie case made out by respondent No.1 against. the petitioners for issuance of process. The contents of the complaint was not properly scrutinised. Now the averments in the complaint do not discloses the time and place of the incident and that the complaint is filed after one year of the alleged incident and cognizance was taken belatedly. Accordingly has sought for quashing the proceedings. 5. Learned Counsel for the respondent has vehemently contended that even the petitioners have filed the revision petition before the Sessions Judge, who in turn has dismissed the revision prima facie holding that case is made against the petitioners and has sought for dismissal of the petition. 6. What has been noticed is that the alleged incident is said to have taken place on 27.10.2001. The complainant has filed a complaint before the police. What has been noticed is that all the petitioners have assaulted respondent No.1 from the hands. It is seen from the records that the brothers of petitioner No.1 assaulted the complainant with sticks. No material is produced to show that he has sl1stainC'd injuries. Further more no such medical certificate is produced long with the complaint before the learned Magistrate to show the nature of the injuries, it is ascertained that the marriage has taken place before the Sub-Registrar by way of registration. The marriage has been celebrated making a false representation. So far as the incident is concerned, the complainant and the petitioner No.1 are the husband and wife and therefore question of trespassing would not arise. Section 95 of the IPC provides that nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm if that harm is so slight that no person of ordinary sense and temper would complain of such harm. 7. The complainant has approached the police and gave complaint. 7. The complainant has approached the police and gave complaint. The police did not take any action and he filed a private complaint after one month. Even the provisions of Section 323 may not be made applicable for the slight harm caused. In the circumstances taking of cognizance and issuing of process when the complaint is filed in connection with the marriage of his daughter that too when the husband and wife have quarreled and some of the relatives are also involved and that would not be treated as offence against the public justice. In the circumstances, no such ingredients were made. The learned .Magistrate ought not to have taken cognizance by setting motion and to hold a full fledged trial which definitely amounts to abuse of process of Court. In the circumstances, the impugned order of taking cognizance and issue of process against the petitioners is quashed and the proceedings before the J.MFC, is dropped. 8. Criminal petition is allowed accordingly. 9. Send back the records.