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2009 DIGILAW 838 (KAR)

V. K. Sreenivasamurthy v. State of Karnataka

2009-11-10

ARALI NAGARAJ

body2009
ORDER Arali Nagaraj, J: The present petition under Section 482 of Cr. PC is filed by the petitioners No.1 to 7, who are respectively Nos.1 to 7 in PCR No. 11/2001 (CC No. 194/2005) on the file of he learned Principal Civil Judge (Junior Division) and Judicial Magistrate First Class, Malur (hereinafter referred to as 'Trial Court' for short). The petitioners have sought for quashing of the order dated 6.7.2005 (Annexure-A) passed in the said case issuing process against them for the offences under Sections 302, 306 and 506 read with Section 149 of IPC on the complaint of respondent No.2 herein. 2. Stated in brief the facts leading to the present petition are as under: (a) The 2nd respondent complainant filed her complaint in PCR No.11/2001 on the file of the learned JMFC, Malur against the petitioners No.1 to 7 herein, alleging that they committed the offences under Sections 302, 306 and 506 read with Section 149 of IPC. Learned Magistrate referred the said complaint to the police concerned. The police submitted 'B' report. Learned Magistrate, by his order dated 30.7.2002 accepted the 'B' report. b) Thereafter, on 14.8.2002, the complainant it filed an application before the Learned Magistrate seeking reca1ling of the order dated 30.7.2002 passed in the said case accepting the 'B' report. The said application was allowed and the said order dated 30.7.2002 came to be recal1ed on 14.8.2002. Then, the complainant filed his objections to the 'B' report. On 30.9.2002 sworn statement of the complainant came to be recorded. On 18.10.2002 statements of two witnesses for the complainant were recorded. Then on 4.2.2003, the learned Magistrate passed an order directing the CPI, Malur to reinvestigate the case and submit his final report. (b) The said order was challenged by the petitioners - accused in Cr.RP No.3112003. The said revision petition was allowed by the Sessions Court, by order dated 17.1.2004 allowed the revision and remitted he matter to the Trial Court. Thereafter, the complainant got examined for her two more witnesses. Learned Magistrate, by his impugned order dated 6.7.2005, directed to issue of process against the petitioners No.1 to 7. The correctness of this order issuing process is challenged by the accused - petitioners in this petition. During the pendency of this petition, the petitioner No.7 died. Therefore, the case against him has been abated. 3. Learned Magistrate, by his impugned order dated 6.7.2005, directed to issue of process against the petitioners No.1 to 7. The correctness of this order issuing process is challenged by the accused - petitioners in this petition. During the pendency of this petition, the petitioner No.7 died. Therefore, the case against him has been abated. 3. Sri K Manjunath, the learned Counsel for the petitioners No.1 to 6 strongly contended that the learned Magistrate committed serious error in issuing process against these petitioners for the said offences, inasmuch as the averments in the complaint, the sworn statements of the complainant and her witnesses do not constitute the ingredients of any of the offences under Sections 302, 306 and 506 read with Section 149 of IPC and therefore the impugned order issuing process against these petitioners for the said offences deserves to be set aside and all further proceedings in the said case deserve to be quashed. 4. Per contra, Sri R Shariff, the learned Counsel for the 2nd respondent complainant strongly contended that the averments in the complaint and also the sworn statements of complainant and her witnesses viz. CWs.2 to 7 prima facie establish that the petitioners/accused committed the said offences and therefore the impugned order does not call for any interference in this petition. 5. Learned Counsel for the petitioners has produced the following decisions in support of his contentions: (a) 1977 SCC (Cri) 132: (Dr. Sharda Prasad Sinha Vs. State of Bihar) (b) ILR 1998 Kar. 2296: (M/s.Shrel International Finance Ltd. Vs. Mr. M G Narayana) (c) ILR 2005 Kar. 960: (S.P. Bobati and Others Vs. Mahadev Virupaxappa Latti) (d) ILR 1999 Kar. 835: (Smt. Hemalatha Ramesh Vs. Sri H N Muddu Krishna) (e) ILR 1998 Kar. 3599: (Pepsi Foods Ltd. and Another. Vs. Special Judicial magistrate and Others.) 6. Learned Counsel for the 2nd respondent has produced the following decisions in support of his contentions as under: 1. ILR 2003 Kar. 1: (Anthony D'Souza and Others Vs. State of Karnataka) ii. 2005(3) KCCR 1569 : (Bhaskar Rao and Another Vs. L. Kamalamma and Others) iii. AIR 1989 SC 378 : (Wazir Chand and Another Vs. State of Haryana) IV. AIR 2002 SC 1998 : (Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh) v. 2005 Cri. L.J. 36: (Shiv Dan Ram Vs. State of Rajasthan) vi. 2007 Cri. L.J. 3073: (Kanriya Dangi Vs. L. Kamalamma and Others) iii. AIR 1989 SC 378 : (Wazir Chand and Another Vs. State of Haryana) IV. AIR 2002 SC 1998 : (Sanju alias Sanjay Singh Sengar Vs. State of Madhya Pradesh) v. 2005 Cri. L.J. 36: (Shiv Dan Ram Vs. State of Rajasthan) vi. 2007 Cri. L.J. 3073: (Kanriya Dangi Vs. State of Madhya Pradesh) vii. 2005 (4) Crimes 72: (Cyriac Vs. S.I of Police) viii. 2006 Cri. L.J. 4314 (K Ramakrishnappa Vs. State of Karnataka) ix. AIR 2002 SC 3164: (Bodh Raj alias Bodha and Others Vs. State of Jammu and Kashmir) 7. The 2nd respondent - complainant has made the following allegations in her said complaint against the petitioners - accused. (a) On 6.12.2000 the complainant's son viz., the deceased Manjunath was abused by the petitioners - accused saying that he committed theft of Rs. 20,000/- and at that time, the petitioners posed, him threat to his life. All the petitioners, forming themselves into, unlawful assembly, forcibly administered poison to the deceased. Immediately thereafter the deceased was taken to Venkateshwara Nursing Home at Malur, but he died as a result of poisoning. (b) Then the petitioners came to the complainant and told that they all together killed her son by administering poison to him. A that time, the petitioners - accused threaten the complainant that if she were to file any complaint as to the death of her son, they would not leave her life. 8. The complainant, who has got herself examined CW1, has stated in her evidence that on 6.12.2000 at about 2.00 p.m. one Srinivas, the son of her elder sister, came to her and informed that the deceased Manjunath was admitted in Venkateshwara Hospital at Malur as he had consumed poison. Immediately on coming to know of the same, she went to the said hospital and saw her deceased son Manjunath in the said hospital. She has further stated in her statement that when she enquired with him, he told her that since he was beaten by the accused alleging that he committed theft of Rs.20,000/- in the school, he consumed poison. This statement of CW 1 complainant is quite contrary to her averments made in the complaint that the accused came to her and told her that they had forcibly administered poison to the deceased. This statement of CW 1 complainant is quite contrary to her averments made in the complaint that the accused came to her and told her that they had forcibly administered poison to the deceased. This being so, the complainant has not made out against the petitioners a case for the offence under Section 302 of IPC. 9. CW2, K. Anjanappa has stated in his sworn statement that when he saw the deceased in the hospital, the deceased was not in a position to speak, but he came to know that the deceased had consumed poison. CW3 Srinivas has stated in his sworn statement that one H. Narayanappa and Shashi informed him that the deceased Manjunath had consumed poison in the premises of Vivekananda High School in Malur village and therefore he went to the said school and took the deceased with the help of his friend Shabbeer and got him admitted at Venkateshwara Nursing Home at Malur village and thereafter he informed the same to the complainant. 10. CW5 Smt. Saroja has stated in her sworn statement that on the date of incident, while she was going nearby the Vivekananda school, she heard accused No.1 abusing the deceased in the compound of the said school saying that he had committed theft ofRs.20,000/- and the deceased replying that he did not commit any theft. She has further deposed that she also heard accused No.1 saying the deceased that he should consume poison and, thereafter, she came to know that the deceased was admitted in the Venkateshwara Hospital as he had consumed poison. 11. CW6, K. Anjanappa' has stated in his sworn statement that at about 5.00 or 6.00 p.m. on that date, .he saw the deceased in the said hospital and at that time, the deceased was not in a position to speak. He has further stated therein that at that time Al Srinivasamurthy and A2 Shailesh Kumar came to the hospital and when he enquired with them, they informed that the deceased had committed theft of Rs.20,000/- in the school and therefore when they told the deceased that they would file complaint against the deceased in respect of the said theft, he consumed poison. 12. 12. CW7 Venkateshappa has stated in his sworn statement that at about 12.00 or 1.00 p.m. on the said date, while he was going nearby the said school, he heard cry from the premises of the school and he also heard the deceased Manjunath saying. He has further deposed that he heard the accused No. I questioning the deceased Manjunath as to where he had kept the money and that on seeing him (CW7) through the window, the said accused asked him to go away and therefore he left the said place. He has further stated that by about 5.00 or 6.00 p.m. he came to know that the deceased was admitted in Venkateshwara Hospital as he had consumed poison and the deceased died on the next day. 13. It is crystal-clear that the above statements of CWs.2 to 7, the witnesses examined for the complainant, do not disclose that the petitioners-accused forcibly administered poison to the deceased. The said statements also do not disclose that they threaten the' complainant Smt. Radhabai either on the said date of incident or at any time thereafter that they would kill her if she were to lodge complaint against them in respect of the death of her deceased son. Even if it is accepted that the accused threaten the deceased that they would file complaint against him for the alleged theft of Rs.20.000/- from the school and therefore he consumed poison and died consequently, that itself could not be sufficient to hold that the accused abetted the commission of suicide by the deceased. 14. It is the settled principle that the High Court, in exercise of its inherent power under Section 482 Cr.PC may quash a criminal proceeding if the allegations made in the complaint petition and the sworn statements of the complainant and his witnesses read together and taken at their face value do not disclose commission of a cognizable offence. Therefore, I am of the considered view that the averments in the complainant and sworn statements of the complainant and her witnesses respectively as CWs. 1 to 7 do not make out, against any of the petitioners No.1 to 6 any of the offences punishable under Sections 302, 306 and 506 read with Section 149 of IPC. Therefore, I am of the considered view that the averments in the complainant and sworn statements of the complainant and her witnesses respectively as CWs. 1 to 7 do not make out, against any of the petitioners No.1 to 6 any of the offences punishable under Sections 302, 306 and 506 read with Section 149 of IPC. This being so, I am of the further opinion that the learned Magistrate committed serious error in issuing process against petitioners No.1 to 6 for all the said offences. 15. Learned Advocates for both the sides have produced quite a number of decisions as listed supra in support of their respective contentions. I have gone through all the said decisions. Suffice it to say that having regard to the facts and circumstances of the case, as found from the averments in the complaint and the sworn statements of the complaint and her witnesses, as observed supra. I need not discuss in length each of the said decisions. For the reasons aforesaid, the present petition is hereby allowed. The impugned order dated 6.7.2005 passed by the learned Magistrate issuing process against petitioners No. I to 6 herein for the offences under Sections 302, 306 and 506 read with Section 149 of IPC is hereby quashed. No order as to cost.