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2020 DIGILAW 1341 (KAR)

Maltesh v. Sunita

2020-07-06

ASHOK G.NIJAGANNAVAR

body2020
JUDGMENT Ashok G Nijagannavar, J. - The present petition is filed for quashing the order dated 18.05.2015 and also for quashing the entire proceedings in C.C.No.9/2015 on the file of Civil Judge and J.M.F.C., Hangal for the offence punishable under Sections 143, 147, 323, 324, 504, 506 R/W 149 of I.P.C. 2. Heard the learned counsel for the petitioners, respondent No.1 and the learned HCGP for the 2nd respondent-State. Perused the impugned order and the records. 3. The facts leading to the petition are that on the complaint filed by the injured victim Sunitha, the pol ice have registered the case. The allegations are that on 15.10.2013 morning at 7.00 a.m. the complainant's husband- Parameshappa and his brother-Guddappa were spraying water to their new house. At that time, the accused-petitioner No.1-Maltesh threw the cow dung to the wall of the newly constructed house. When the complainant's husband and her brother-in-law objected for the same, the petitioner-accused No.1 abused them and also assaulted with the stick. Thereafter all the accused persons gathered and assaulted the complainant's husband and her brother-in-law. Accused No.11 pulled her tali chain. 4. In pursuance of the said complaint, the pol ice have registered the case for the offence punishable under Sections 143, 147, 323, 324, 504, 506 R/W 149 of I.P.C. On completion of the investigation, the pol ice submitted the charge sheet. On perusal of the prosecution papers, the learned Magistrate has passed an order for taking cognizance and for registering the case and also for issuance of summons to accused. 5. The petitioners-accused Nos.1 to 12 being aggrieved by the impugned order dated 18.05.2015 for taking cognizance and initiating the proceedings by issuance of summons, have preferred the petition on the following grounds. a. The averments made in the complaint do not attract the ingredients of alleged offences. b. The initiation of criminal proceedings against the petitioners is an abuse of process of law. c. There are no prima facie materials against the petitioners for the offences alleged in the complaint. d. The alleged complaint is in the form of recourse to criminal process to put pressure on the petitioners for satisfaction of the claim of the respondent No.1. e. The respondent No.1 has lodged a complaint only after fil ing of complaint by petitioner No.1 against her in Crime No.139/2013. d. The alleged complaint is in the form of recourse to criminal process to put pressure on the petitioners for satisfaction of the claim of the respondent No.1. e. The respondent No.1 has lodged a complaint only after fil ing of complaint by petitioner No.1 against her in Crime No.139/2013. f. The allegations leveled against the petitioners does not prima facie constitute the offence committed. g. The trial Court has not properly analyzed and scrutinized the materials on record and has committed error in taking cognizance. There are no sufficient grounds to proceed against the petitioners for the said offences. h. The allegations made in the complaint are in the nature of civil proceedings. 6. Reiterating the aforesaid contentions made in the petition, the learned counsel submitted that there is no prima facie material to prove that the petitioners have committed the alleged offences. There is a delay in filing the complaint. According to the averments, the alleged offence was committed on 15.10.2013 whereas the complaint is registered on 17.10.2013. The medical certi ficate discloses that they have taken treatment on 15.10.2013, but the complaint is filed after two days i.e. on 17.10.2013. There is no proper explanation for delay caused in the complaint. There is no connecting l ink to show that the complainant and her family members sustained the injuries because of the incident of assault that happened on 15.10.2013. The criminal proceedings are initiated with the malafide intention to take revenge against the petitioners. 7. The learned HCGP submitted that the civil dispute between the parties cannot be a ground to quash the proceedings when there are specific allegations that the petitioners have assaulted the complainant, her husband and brother-in-law. Even though there is a delay in filing the complaint, the said ground alone cannot be the basis to disbelieve the prosecution case. The learned HCGP has relied on two decisions in support of his contention. 8. It is well settled that the power under Section 482 Cr.P.C. has to be exercised by the High Court, inter al ia, to prevent the abuse of process of any court or otherwise to secure ends of justice. The learned HCGP has relied on two decisions in support of his contention. 8. It is well settled that the power under Section 482 Cr.P.C. has to be exercised by the High Court, inter al ia, to prevent the abuse of process of any court or otherwise to secure ends of justice. Where the criminal proceedings are initiated based onillicit material collected on search and arrest which are per-se illegal and which not only conviction and sentence based on such materials but also the trial itself, the proceedings cannot be allowed to go on as it cannot but amount to abuse of process of the Court. 9. In a decision , State of Hariyana and others V/s Bhajanlal,1982 AIR SC 604 , the Hon'ble Apex Court has observed as under: 108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way ofillustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channel ised and inf lexible guidelines or rigid formulae and to give an exhaustive l ist of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by pol ice officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a pol ice officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is mal iciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 10. Having regard to the submission made by the learned counsel for the petitioners, learned counsel for respondent No.1 and learned HCGP, this Court has gone through the prosecution papers. It is pertinent to note that the complaint is filed on 17.10.2013, but whereas the incident of assault has taken place on 15.10.2013. Even though the complainant, her husband and brother-in-law have taken treatment in the hospital, they have not filed complaint on the same day. The question that arises for consideration is whether this circumstance alone can be a ground to quash the entire proceedings. Another ground stated by the learned counsel for the petitioners is that there was a civil dispute between the rival parties and in support of the said contention, he has produced the plaint copy in O.S.No.263/ 2012 on the file of Civil Judge and J.M.F.C., Hangal. 11. In a decision in the case of Mohd. Another ground stated by the learned counsel for the petitioners is that there was a civil dispute between the rival parties and in support of the said contention, he has produced the plaint copy in O.S.No.263/ 2012 on the file of Civil Judge and J.M.F.C., Hangal. 11. In a decision in the case of Mohd. Allauddin Khan V/s State of Bihar and others, (2019) 6 SCC 107 , the Hon'ble Supreme Court has observed that mere pendency of a civil suit is not a ground to quash the complaint. 12. The facts and circumstances involved in this case clearly indicate that on the date of alleged incident of assault i.e. on 15.10.2013, the complainant's husband and brother-in-law have gone to the hospital, but they have not filed complaint and even the Medical Officer has not clearly mentioned the history of assault. The allegations made in the complaint are mainly against the petitioner-accused No.1. There are no detai ls of overt-acts of assault done by the remaining accused. Under these circumstances, the initiation of proceedings against the petitioners-accused Nos.2 to 12 cannot be sustained in law, but there are specific allegations in a complaint against petitioneraccused No.1 regarding the assault committed by him and the injury certificate supports the said contention. Even though there is a delay in filing the complaint, the same cannot be the ground to disbel ieve the entire prosecution case. Admittedly, the petitioners and complainant are close relatives, on account of rivalry, the complainant might have given exaggerate version, but that alone cannot be the base for quashing the entire proceedings. 13. For the foregoing reasons, the petition is allowed in part. The proceedings in C.C.No.9/2015 against petitioners-accused Nos.2 to 12 for the offences punishable under Section 143, 147, 323, 324, 504, 506 read with Section 149 of I.P.C. is quashed. The criminal proceedings in C.C.No.9/2015 for the said offences shall continue before the trial Court against petitioner-accused No.1. The Judicial Magistrate is accordingly directed to proceed to conclude the trial on merits on the basis of evidence to be adduced by the parties. The trial shall be strictly in accordance with law uninf luenced by any observations made by this Court.