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Karnataka High Court · body

2020 DIGILAW 96 (KAR)

Divakara K. v. State Of Karnataka And Another

2020-01-10

B.A.PATIL

body2020
JUDGMENT 1. This petition has been filed by petitioner/accused No.5 under Section 482 of Cr.P.C. praying to quash the proceedings in C.C. No.1374/2019 in so far as petitioner/accused No.5 is concerned on the file of the Principal Civil Judge & JMFC, Belthangady for the offences punishable under Sections 143, 147, 148, 447, 504, 354, 324, 323, 427 read with Section 149 of IPC. 2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent No.1. Though notice is served to respondent No.2 complainant, there is no representation. 3. The gist of the complaint is that on 14.03.2018 at about 10.20 p.m., accused persons including accused No.5 trespassed and removed the fencing. When the complainant went and asked, there is a dispute in respect of the said fencing. Accused persons abused with filthy language, have torn her nighty and assaulted with club and when she made a hue and cry at that time, Vijaya Gowda and Shivayya Gowda came and the accused persons assaulted them with club, hands and kicked and they also destroyed the fence and the pipeline to the extent of Rs.3,000/- and they have used the Alto car bearing Regn. No.KA- 05-MF-8345. On the basis of the complaint, a case has been registered. 4. It is the submission of the learned counsel for the petitioner that the petitioner/accused No.5 is working in Dubai as a Senior Manager for Ashok Leyland till 26.04.2018 and now he is working at UD Trucks as a Senior Quality Engineer. It is his further submission that the petitioner came to India on 01.03.2018 because of ill-health of his mother and left the country on 11.03.2018 to Dubai, for which, he has also produced the tickets. It is his further submission that on 14.03.2018, he was not in India as such, the registration of the complaint and the filing of the charge sheet is nothing but it is an abuse of process of law. On these grounds, he prayed to allow the petition and quash the proceedings as against the petitioner/accused No.5. 5. Per contra, learned High Court Government Pleader fairly submitted that the Investigating Officer has filed the affidavit to the effect that as on the date of alleged incident, the petitioner/accused No.5 was not present at the place of alleged incident and he was not present in India, a suitable order may be passed. 5. Per contra, learned High Court Government Pleader fairly submitted that the Investigating Officer has filed the affidavit to the effect that as on the date of alleged incident, the petitioner/accused No.5 was not present at the place of alleged incident and he was not present in India, a suitable order may be passed. 6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for both the parties and perused the records. 7. This Court by order dated 06.12.2019, had directed the Investigating Officer to file an affidavit with regard to the Authenticity of the contents of Annexures F and G series. In pursuance of the said order, Sri. Ramaiah Hedge S/o. Ginnappa Hegde, Assistant Sub- Inspector of Police, Belthangady Taluk, Dakshina Kannada, Mangaluru has filed an affidavit dated 07.12.2019. In the said affidavit, he sworn about the filing of charge sheet against the petitioner/accused No.5 in respect of Crime No.71/2018 though he was not present in India at the time of alleged incident. It is further deposed that during the course of investigation, the statement of witnesses have been recorded including the statement of family members of the complainant. In their statement, they have stated the name of petitioner/accused No.5, who is none other than the brother of Smt. Veena, who assaulted to one Shivayya, who is father-in-law of the complainant with a stick. On the basis of the statement, he has filed the charge sheet. Subsequently, he made efforts, in spite of notice being issued to the petitioner, the petitioner did not informed that he was not present at the time of alleged incident. No information was given during the course of investigation and no documents have been produced to show that he was not in India and he was residing at Abu-dhabi. The said affidavit has been taken on record. When it is the specific contention of the petitioner/accused No.5 that as on the date of alleged incident, the petitioner/accused No.5 was not present in India and he was in abu-dhabi, the same been supported and substantiated with the affidavit of the Investigating Officer, under such circumstances, I am of the considered opinion that the initiation of proceedings as against petitioner/accused No.5, it is nothing but an abuse of process of law. I am conscious of the fact that without proper investigation, a charge sheet has been filed. I am conscious of the fact that without proper investigation, a charge sheet has been filed. In the affidavit filed by the Investigating Officer, he himself contended that the notice has been issued and petitioner/accused No.5 but he did not appear and no documents have been produced to show that he was not in India. In the statement of witnesses, they have stated about the presence of the petitioner/accused No.5 and the assault said to have been committed. In that light, he has filed the charge sheet. Though the learned counsel for the petitioner prayed to award compensation/damage for having wrongly erred him as accused No.5, but on going through the records and affidavit filed by the Investigating Officer, it appears that it is a bonafide mistake, which has been caused and no personal vengeance are there so as to falsely implicate the petitioner/accused No.5 in the crime and to file a charge sheet. In the absence of any such material, I am of the considered opinion that it is not a fit case so as to award any compensation or cost. 8. Taking into consideration of the above said facts and circumstances of the case petitioner/accused No.5 has made out a case to exercise the power under Section 482 of Cr.P.C. to quash the proceedings. 9. In that light, petition is allowed and the proceedings initiated in C.C. No.1374/2019 in respect of petitioner/accused No.5 is concerned, pending on the file of the Principal Civil Judge and JMFC, Belthangady for the offences punishable under Sections 143, 147, 148, 447, 504, 354, 324, 323, 427 read with Section 149 of IPC are hereby quashed.