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Karnataka High Court · body

2015 DIGILAW 579 (KAR)

RAMACHANDRA AITHAL v. THE STATE OF KARNATAKA

2015-06-05

A.N.VENUGOPALA GOWDA

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ORDER : This petition was filed under S.482 of Code of Criminal Procedure, 1973 (‘the Code’ for short), to quash the charge sheet in Crime No.12/2010 of Hebri Police Station, Udupi District and also the entire proceedings against the petitioner/accused No.7, in S.C.No.18/2011, pending on the file of the Sessions Judge, Udupi. 2. The petitioner is a medical practitioner. He runs a maternity and general hospital called Sri Raghavendra Maternity and General Hospital at Hebri Town, Karkala Taluk, Udupi District. The said hospital is attached to the residence of the petitioner. 3. On 06.01.2010, Dr.Suresh Prabhu/Accused No.1, brought his wife Bhageerathi, in his Maruti Omni car, at about 9.30 p.m., and the petitioner came out of his residence and Bhageerathi was shifted to a stretcher, on Dr. Suresh Prabhu informing that she had snake bite. The petitioner, on examination of Bhageerathi, through a torch, outside of the house and hospital, found that Bhageerathi was brought dead. At the insistence of Dr. Suresh Prabhu, the petitioner arranged his ambulance to shift body of Bhageerathi to District Hospital, Udupi. The Doctor at District Hospital, Udupi, at about 10.30 p.m., declared Bhageerathi as having been brought dead and the body was shifted to mortuary at 11.30 p.m. 4. Dr.Suresh Prabhu, returned in the same ambulance at 1.30 a.m., on 07.01.2010 and lodged a report with the Hebri Police Station, to the effect that his wife Bhageerathi died due to snake bite and the body was kept in the mortuary at Ajjarkad, Udupi and requested the Police to investigate the case and release the dead body, to perform funeral rites / obsequies ceremonies. Hebri Police registered a case in UDR No.1/2010, under S. 174 of the Code and sent the dead body for postmortem. 5. Hebri Police addressed a letter to the petitioner on 08.01.2010, to furnish the details of the treatment given to Bhageerathi. Hebri Police registered a case in UDR No.1/2010, under S. 174 of the Code and sent the dead body for postmortem. 5. Hebri Police addressed a letter to the petitioner on 08.01.2010, to furnish the details of the treatment given to Bhageerathi. On 09.01.2010, petitioner informed the Police that Bhageerathi was brought to his hospital by her husband Dr.Suresh Prabhu in his Maruti Omni car, at about 9.30 p.m., on 06.01.2010 for treatment of suspected poisonous snake bite, about half an hour before, at Hilakunji, Belanje Village and on examination, “her peripheral pulses were not felt, BP was not recordable, heart sounds were not heard, respiratory movements were not seen, pupils were dilated and fixed and not responding to light rays” and hence, as per the request of her husband, sent the body in an ambulance to the District Hospital, Udupi. 6. A representation dated 20.01.2010 having been submitted by a brother of deceased Bhageerathi, to the Hon’ble Chief Minister, Government of Karnataka, seeking to investigate the death of Bhageerathi, by alleging foul play by her husband Dr. Suresh Prabhu and a direction having been issued to conduct investigation, the respondent registered a case on 11.03.2010, in Crime No.12/2010 against Dr.Suresh Prabhu, for the offences punishable under Ss.302, 201 and 177 IPC. 7. Investigating Officer having recorded the statement of the Police SubInspector, Hebri on 10.05.2010, wherein, he stated that on registering UDR No.1/2010, during investigation, he sought information from the petitioner about the treatment given to the deceased and on receipt of a reply, during the course of investigation by the respondent, the petitioner informed on 13.05.2010, about Suresh Prabhu being a doctor and having attended his clinic on two occasions during 1999 and 2002 and also stated that he was not aware about the law, that the death has to be intimated, though the patient was not admitted. 8. Petitioner was arrested on 18.05.2010 for the offences punishable under Ss.176, 177, 201 and 202 IPC. After completion of the investigation, charge sheet having been filed on 08.06.2010 and the case having been committed, is pending in S.C.No.18/2011 on the file of Sessions Court, Udupi. 9. Sri Rameshchandra, learned advocate, contended that uncontroverted allegations made in the FIR and the evidence collected in support of the same by the respondent does not disclose commission of any offence and make out a case against the petitioner. 9. Sri Rameshchandra, learned advocate, contended that uncontroverted allegations made in the FIR and the evidence collected in support of the same by the respondent does not disclose commission of any offence and make out a case against the petitioner. He submitted that the continuance of the impugned proceeding against the petitioner and directing him to face trial being an empty formality or futile exercise, resulting in waste of public time and money and being an abuse of process of law is liable to be quashed. He submitted that the ingredients of Ss.176, 177, 201 and 202 IPC having not been made out, prosecution of the petitioner would amount to abuse of process of law. Learned counsel submitted that the petitioner had no reason to believe that Dr. Suresh Prabhu, brought his wife Bhageerathi by murdering her, as he was informed, that she had a snake bite. He submitted that the petitioner without treating Bhageerathi, having noticed that she had been brought dead, without any loss of time and at the request of Dr.Suresh Prabhu, immediately sent the body of Bhageerathi to Government Hospital, Udupi, wherein, she was declared as brought dead and the body was shifted to mortuary. Learned advocate submitted that the police having been informed of the facts by Dr. Suresh Prabhu at 1.30 a.m., on 07.01.2010, prosecution of the petitioner would amount to abuse of process of law. Learned counsel contended that the petitioner has been maliciously shown as accused No.7, despite there being no material of whatsoever nature appearing in the prosecution record. 10. Sri B. Visweswaraiah, learned HCGP, on the other hand contended that the petitioner, despite having reason to believe that an offence was committed, since death of Bhageerathi was homicidal, having intentionally omitted to give information respecting commission of an offence, was chargesheeted for the offences punishable under Ss.176, 177, 201 and 202 IPC. Learned HCGP submitted that in view of the material collected during investigation by the prosecution and submitted along with the charge sheet to the Court i.e., of CW Nos.6, 29 and 30, the petitioner should face trial. Learned HCGP submitted that in the facts and circumstances of the case, inherent power under S.482 of the Code cannot be exercised to quash the pending case against the petitioner. 11. Perused the statements of the witnesses named in the chargesheet. Learned HCGP submitted that in the facts and circumstances of the case, inherent power under S.482 of the Code cannot be exercised to quash the pending case against the petitioner. 11. Perused the statements of the witnesses named in the chargesheet. The three witnesses cited against the petitioner are (i) CW6: Mr. Umesh Devadiga, driver of ambulance of Raghavendra Maternity and General Hospital, (ii) CW29: Mr. Jagadish and (iii) CW30: Dr. M. Sundar. Mr. Umesh Devadiga (CW6) has stated that on 06.01.2010, he was the driver of the ambulance of Raghavendra Maternity and General Hospital and shifted Bhageerathi to District Hospital, Udupi along with Dr. Suresh Prabhu and that the doctor at the District Hospital declared her ‘brought dead’ at about 10.30 p.m. CWs.29 and 30 are only mahajar witnesses. 12. Perused the record and considered the rival contentions. Point for consideration is, whether the prosecution has produced any material along with the charge sheet filed, showing intentional omission on the part of the petitioner/accused No.7, to give information of the offence alleged as against the other accused persons? 13. S.176 IPC provides that whoever is legally bound to give any information or notice to any public servant, intentionally omits to give such notice or information, then, he is liable for punishment. The two ingredients of the offence are (i) intentional omission to give information to a public servant, and (ii) that the accused was legally bound to give such information to a public servant. As far as the first ingredient is concerned, the statement of the prosecution witness – CW6, does not disclose that the petitioner intentionally omitted to inform the police. Thus, the important ingredient of the offence under S.176 IPC cannot be found in the statement of the said witness. Hence, there is no question of improving on the same by CW6 i.e., during the course of trial. 14. While considering a case alleged under S.176 of IPC, the Court has to keep in view S.39 IPC. The offence in respect of which the petitioner has been sought to be prosecuted is, ‘he having intentionally omitted to give information respecting the offence which he is legally bound to give’. There is not even an iota of material accompanying the charge sheet showing that the petitioner knew or had reason to believe that the accused No.1 had committed any offence much less the offences under Ss. There is not even an iota of material accompanying the charge sheet showing that the petitioner knew or had reason to believe that the accused No.1 had committed any offence much less the offences under Ss. 302, 201, 177, 120B, 176, 202 read with S.34 IPC, as has been alleged against the accused Nos.1 to 6. The respondent has not produced any material which shows that the petitioner knew or had reason to believe that Bhageerathi, wife of accused No.1, having been murdered or she having suffered a homicidal death. 15. S.201 IPC, when read, shows that the first part contains the postulates for constituting the offence and the remaining three parts describe three different tires of punishments depending upon the degree of the offence in each situation. The ingredients of an offence under S.201 IPC are: (i) that an offence has been committed; (ii) that accused knew or had reason to believe the commission of such an offence; (iii) that, with such know ledge or belief ,he– (a) caused any evidence of the commission of that offence to disappear or (b) gave any information relating to that offence which he then knew or believed to be false; (iv)that he did so as aforesaid with the intention of screening the offender from legal punishment. The section punishes a person, who, knowing that any offence has been committed, destroys the evidence of that offence or gives false information, in order to screen the offender from legal punishment. The provision has been designed to penalise “attempts to frustrate the course of justice”. 16. In ARBIND SINGH Vs. STATE OF BIHAR,(1995) (SUPP.4) SCC 416,Apex Court has held, that unless the accused had the mens rea in the sense that he knew that the death of the deceased was not a natural one and he knowingly became privy to the destruction of evidence, conviction under S.201 IPC cannot be based. 17. To prosecute a person under S.202 IPC, it is necessary for the prosecution to show from the record accompanying the charge sheet that, (i) the petitioner had knowledge or reason to believe that some offence had been committed, (ii) the petitioner had intentionally omitted to give information respecting that offence and (iii) the petitioner was legally bound to give that information. 18. 18. Bhageerathi having been brought dead at 09.30 p.m., on 06.01.2010, near the hospital of petitioner, which is attached to his residence, without any treatment, was shifted to the District Hospital, Udupi at 10.30 p.m. It is not the case of the prosecution that the Doctor or any other person of the District Hospital, Udupi believing that an offence as having been committed, gave the information to the police. The dead body having been shifted to the mortuary at 11.30 p.m., on 06.01.2010, husband of the deceased lodged a report with the Hebri Police Station at 1.30 a.m., on 07.01.2010. In response to the letter addressed by the Hebri Police on 08.01.2010, in UDR No.1/2010, the petitioner, on 09.01.2010, has furnished information which was within his knowledge. It is not the case of the prosecution that the information given by the petitioner on 09.01.2010 was false, thereby, attracting the penal provision as per S.176 IPC. 19. In view of the aforesaid prosecution materials, it cannot be alleged that the petitioner despite knowing or having reason to believe that an offence has been committed, intentionally omitted to give such notice or furnish such information to the police, nor gave any false information in order to cause any evidence to disappear, with the intention of screening the offender/s – A1 to A6, from the legal punishment. 20. The ingredients of the offences in respect to which the petitioner has been sought to be prosecuted having not been made out, prosecution of the petitioner would amount to abuse of process of law. The allegations made against the petitioner, even if they are taken at their face value and accepted in their entirety, do not constitute any offence or make out a case against the petitioner for the offences under Ss.176, 177, 201 and 202 IPC. The case of the prosecution against the petitioner is absurd and inherently improbable and there being no ground to proceed against the petitioner, a case to exercise power under S.482 of the Code is made out. In the result, the petition is allowed and the proceedings against the accused No.7, in S.C.No.18/2011, pending on the file of the Sessions Judge, Udupi is quashed. In the result, the petition is allowed and the proceedings against the accused No.7, in S.C.No.18/2011, pending on the file of the Sessions Judge, Udupi is quashed. Learned Sessions Judge shall conduct the Trial as against other accused and decide the case with utmost expedition as the delay not only renders justice ineffective but also illfounded, as it leads to erosion of evidence as well.