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2019 DIGILAW 111 (KAR)

RAMCHANDRA v. STATE OF KARNATAKA

2019-01-09

H.P.SANDESH

body2019
JUDGMENT H.P. SANDESH, J. 1. Heard the petitioner's counsel and also the learned HCGP for the respondent. 2. The factual matrix of the case is that the police have registered a case based on the complaint filed by one Smt.Gouramma in crime No.183/2016 for the offences punishable under Sections 354(D), 506, 34, 504, 307 and 420 of IPC. The allegation made in the complaint is that on 09.12.2016 at about 3.15 p.m. the accused came along with his wife into the house of complainant and started abusing her in filthy language with dire consequences saying to eliminate her to gain the house property. It if further alleged that the accused persons used a cotton pillow and tried to kill her by pressing the same on her face and further alleged that when she started hue and cry, the persons who heard the hue and cry came into the house along with her son-in-law and thereafter the accused fled from the house. 3. The police after the investigation have filed charge sheet only for the offences punishable under Sections 504 and 506 of IPC and given up other offences under Sections 354(D), 307 and 420 read with Section 34 of IPC. The complainant has been examined before the Court below as PW.1 and further examination has been deferred at the request and in the meanwhile the prosecution has filed an application under Section 323 of Cr.P.C. requesting the Court for committal of the case to the Sessions Court as the accused has committed an offence under Section 307 of IPC. The Court below by giving an opportunity to file objection to the application, heard the application and allowed the application under Section 323 of Cr.P.C. Being aggrieved by the order impugned, the petitioner has filed this petition invoking Section 482 of Cr.P.C. 4. The counsel appearing for the petitioner in his argument has reiterated the grounds urged in the petition contending that the Court below has committed an error and not followed the procedure which contemplated under Section 202(2) of Cr.P.C. Moreover, only in order to overcome with the will executed by the husband of the complainant, a false and frivolous complaint is lodged. The Court below has partially recorded the evidence of CW.1 and deferred the same for further examination of CW.1 and the Court ought to have recorded the examination of all the witnesses of CW.1 for the purpose of committing the case to the Court of Sessions. Hence, the Court below has committed an error in committing the matter to the Sessions Court by taking cognizance for the offence under Section 307 of IPC. In support of his contention, he has relied upon judgments reported in the case of L.N.Pareira and Others Vs. Ramesh Mahadev Gaikwad and Another, (1989) 3 BCR 659 (Bombay High Court) and in the case of Rajarathnam Vs. Anantha Narayanan and Others, (1978) CriLJ 1856 (Madras High Court). 5. Per contra, the learned HCGP in his argument contends that the Court below while considering the application under Section 323 of Cr.P.C. considered the evidence of PW.1 who has specifically deposed that an attempt is made to take away the life of the complainant by using the pillow and pressed the same on her face and also considered Section 307 of IPC and considering the statement of PW.1, the Court came to the conclusion that the complainant has made out a case to invoke Section 307 of IPC and hence allowed the application taking cognizance for the offence under Section 307 of IPC and hence this Court cannot invoke Section 482 of Cr.P.C. 6. Having heard the arguments of the petitioner's counsel and also the learned HCGP, this Court has to examine whether this Court can exercise powers under Section 482 of Cr.P.C. 7. On perusal of the factual aspects of the case, at the first instance the police have registered the case for the offences under Sections 354(D), 506, 34, 504, 307 and 420 of IPC based on the complaint and subsequently investigated the matter and filed the charge sheet and while filing the charge sheet, the same is filed only for the offences under Sections 504 and 506 of IPC and given up other offences. 8. 8. The counsel has brought to my notice para 6 of the judgment in the case of Rajarathnam (supra), wherein the Madras High Court has held that after referring to the scope and object of Section 208 of Cr.P.C., the learned Judge has observed that a reading of the proviso to Clause (2) of Section 202 together with Section 208(1) would clearly shows that on a complaint before the Magistrate where it appears that the offence is exclusively triable by the Court of Session, the statements of all the witnesses produced by the complainant must be recorded and the copies of such statements of all the witnesses who recorded shall be furnished to the accused free of cost and similarly a copy of any statement recorded under Section 200 of he Code by the Magistrate, shall also be furnished to the accused; and these provisions are mandatory. The counsel also brought to my notice para Nos.5, 6 and 7 of the judgment in the case of L.N.Pareira (supra) regarding invoking of Section 323. In para No.7 of the said judgment, it is observed by the Bombay High Court that it could be an enquiry or it could be a trial. If at any stage, it appears to the learned Magistrate that the case has to be sent to the Court of Sessions, Section 323 of the Code of Criminal Procedure enables him to do so. But under Section 202(2) Proviso, there is no question of the accused appearing before the learned Magistrate. In other words, it is like a police enquiry where statements of witnesses are recorded by the police. When the case is before the learned Magistrate, it is the Magistrate who records the statements of witnesses and he can insist upon the complainant examining his all witnesses so that he will have all the material for the purpose of committing the same to the Court of Sessions. There is no question of crossexamination of all these witnesses. But once the accused is summoned before the learned Magistrate after he takes cognizance of any offence there is no question of his going back to hold an enquiry under Section 202(2) Proviso, which is a stage before he takes cognizance of any offence i.e. at the pre-registry level. There is no question of crossexamination of all these witnesses. But once the accused is summoned before the learned Magistrate after he takes cognizance of any offence there is no question of his going back to hold an enquiry under Section 202(2) Proviso, which is a stage before he takes cognizance of any offence i.e. at the pre-registry level. It is further observed that technically speaking, at that stage there is no question of the accused crossexamining any of the witnesses, for the simple reason that he is just not there at all. But however, for the present case, Mr.Ponda submitted that he will have no objection if the witnesses presented by him are crossexamined on behalf of the accused. But, I think that concession has no foundation in law and procedure. The Court also further observed that the main question was whether for the purpose of committing the case to the Court of Sessions on a private complaint, the complainant is bound to examine all the witnesses and if at all the witnesses are not examined such committal was improper, but the observation contemplated under Section 202(2) Proviso comes into play, if only the Magistrate postpones the issue of process could not have been lightly brushed aside. 9. On perusal of the impugned order which has been questioned before this Court, the Magistrate has entertained the application under Section 323 of Cr.P.C. since the complainant who has been examined before the Court as PW.1 specifically reiterated the averments made in the complaint that an attempt is made to take away her life using the pillow and pressed the same on her face. On perusal of the complaint which annexed as Annexure-A along with this petition, the very same averments made in the complaint the PW.1 has reiterated the same in her evidence when she was examined before the Court below and when she reiterated the same in the evidence before the Court below also, an application is filed under Section 323 of Cr.P.C. The same is considered on merits after giving an opportunity to the petitioner herein. Having considered the contents of the complaint and also the evidence which has been given by PW.1, the Court below entertained the application filed under Section 323 of Cr.P.C. and has taken the cognizance in respect of offence under Section 307 of IPC and hence ordered to send the records to the Sessions Court and also given an opportunity to the petitioner to furnish the surety and fixed the date 04.01.2019. 10. For having considered the arguments of the petitioner's counsel and on perusal of the complaint which is annexed along with this petition, I do not find any force in the contention of the petitioner's counsel with regard to invoking Section 202(2) and also Section 208 of Cr.P.C. and if any private complaint is filed before the Magistrate, then the Magistrate has to invoke provisions of Section 202(2) of Cr.P.C. and examine all the witnesses which the complainant claims in support of her case and considering the same only the Court has to take the cognizance, but in the case on hand, the cognizance is taken based on the police report and while registering the case, Section 307 of IPC was invoked and subsequently the police during the course of investigation recorded the statement of witnesses and left out the penal provisions of Section 307 of IPC and filed the charge sheet. On perusal of the complaint and also the statement of PW.1, who has been examined before the Court below, the trial Court found that an attempt is made to take away the life of the complainant and based on the complaint as well as her statement, the trial Court has proceeded to allow the application filed under Section 323 of Cr.P.C. The contention of the petitioner's counsel that all the witnesses ought to have been examined before the Court below cannot be accepted and there is no such law to examine all the witnesses to take cognizance for the offences alleged against the petitioner and while taking the cognizance based on police report, there is no law to examine all the witnesses, only to consider the material on record that too in a particular case considering the contents of the complaint as well as the evidence of PW.1, who deposed before the Court below inconsonance with the contents of the complaint and hence not committed an error and the submission of the counsel cannot be accepted and the judgments are not applicable to the case on hand since the cognizance is taken on the police report and not on the private complaint and while taking the cognizance on police report no need to examine all the witnesses as contended by the petitioner's counsel. Hence, I do not find any material irregularity in allowing the application under Section 323 of Cr.P.C. by the Court below. 11. In view of the discussions made above, I proceed to pass the following: ORDER The petition is dismissed.