Prabhakar And Ors vs State Of Karnataka And Anr
2021 Latest Caselaw 5619 Kant

                           1




        IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

   DATED THIS THE 07TH DAY OF DECEMBER 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE H.P.SANDESH

       CRIMINAL PETITION No.200600/2021


BETWEEN:

1. PRABHAKAR S/O BHIMSHA
   PODHAR @ PANCHAL
   AGED ABOUT 60 YEARS,
   OCC: GOLDSMITH, R/O. H.NO. 3-6-42,
   WARD NO. 29, BHAGYANAGAR COLONY,
   ADILABAD DISTRICT PROPER
   (TELANGANA STATE)-504001.

2. SMT. MOUNAMMA W/O PRABHAKAR
   PODHAR @ PANCHAL,
   AGE: 57 YEARS, OCC: HOUSEHOLD
   R/O. H.NO. 3-6-42,
   WARD NO. 29, BHAGYANAGAR COLONY,
   ADILABAD DISTRICT PROPER
   (TELANGANA STATE)-504001.

3. SUBHASH S/O BHIMSHA
   PODHAR @ PANCHAL
   AGED ABOUT 57 YEARS,
   OCC: GOLDSMITH, R/O H.NO.3-6-42,
   WARD NO.29, BHAGYANAGAR COLONY,
   ADILABAD DISTRICT PROPER
   (TELANGANA STATE)-504001.

4. SMT. CHHAYA W/O SUBHASH
   PODHAR @ PANCHAL AGED ABOUT 55 YEARS,
   OCC: HOUSEHOLD, R/O H.NO.3-6-42,
                            2




  WARD NO.29 BHAGYANAGAR COLONY,
  ADILABAD DISTRICT PROPER
  (TELANGANA STATE)-504001.

5. KAVERI D/O SUBHASH PODHAR
   AGE: 22 YEARS, OCC: STUDENT,
   R/O H.NO.3-6-42, WARD NO.29
   BHAGYANAGAR COLONY,
   ADILABAD DISTRICT PROPER
   (TELANGANA STATE)-504001.

6. PRATIMA W/O CHANDRAKANTH PODHAR
   AGE: 32 YEARS, OCC: HOUSEHOLD,
   R/O C/O LAXMAN SINGH THAKUR (RETD. POLICE)
   SHIVAJINAGAR, BASAVAKALYAN,
   DIST.BIDAR-585327.

7. CHANDRAKANTH S/O PRABHAKAR PODHAR
   AGED ABOUT 35 YEARS, OCC: GOLDSMITH
   R/O C/O LAXMAN SINGH THAKUR (RETD. POLICE)
   SHIVAJINAGAR, BASAVAKALYAN,
   DIST.BIDAR-585327.
                                       ... PETITIONERS
(BY SRI K. M. GHATE, ADVOCATE)

AND:

1. STATE OF KARNATAKA
   THROUGH SUB-INSPECTOR OF
   POLICE TOWN POLICE STATION,
   BASAVAKALYAN, DIST. BIDAR-585327.

2. SMT. RENUKA @ VANDANA
   W/O DEVENDRA PODHAR @ PANCHAL
   AGED ABOUT 28 YEARS, OCC: HOUSEHOLD,
   R/O H.NO.3-6-42, WARD NO.29,
   BHAGYANAGAR COLONY, ADILABAD,
   NOW RESIDING AT SHAHAPUR GALLI,
   BASAVAKALYAN, DIST.BIDAR-585327.
                                     ... RESPONDENTS
(BY SRI.G.V.HASILKAR HCGP FOR R1;
SMT. NEEVA M.CHIMKOD, ADVOCATE FOR R2)
                               3




       THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO CALL FOR THE
RECORDS OF PCR NO. 5/2019 AND C.C. NO. 294/2019 ON THE
FILE OF THE CIVIL JUDGE AND JMFC BASAVAKALYAN AND
THEREBY TO QUASH THE ORDER OF COGNIZANCE, ISSUE OF
SUMMONS TO THE PETITIONERS ACCUSED VIDE ORDER DATED
12.07.2019   FOR   HAVING   TAKEN   COGNIZANCE    OF   THE
OFFENCES PUNISHABLE UNDER SECTIONS 494 AND 149 OF
IPC.


       THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:


                         ORDER

This petition is filed under section 482 of Cr.P.C.,

praying this Court to quash the order of taking cognizance,

issue of summons to the petitioners/accused vide order

dated 12.07.2019 for having taken cognizance of the

offences punishable under Sections 494 and 149 of IPC in

C.C.No.294/2019 (PCR No.5/2019) on the file of Civil

Judge and JMFC, Basavakalyan.

2. Heard the learned counsel for the petitioners

and the learned High Court Government Pleader for the

State.

3. The factual matrix of the case is that the

respondent No.2 had filed a private complaint in PCR

No.5/2019 before the learned Magistrate. The learned

Magistrate after receiving the complaint posted the matter

for enquiry and recorded the oral statement of complainant

as well as witnesses and proceeded to pass the order for

issuance of summons. It was stated therein that the

complainant is the legally wedded wife of the accused No.1

and accused No.2 is the second wife of accused No.1,

accused Nos.3 and 4 are the parents of accused No.1 and

accused No.5 to 33 are the relatives of accused Nos.1 and

2. The allegation in the complaint that accused No.1 got

married with accused No.2 on 11.01.2019 and accused

Nos.3 to 22 even though having knowledge of marriage of

accused No.1 with the complainant actively participated in

the second marriage of accused No.1 with the accused

No.2. Therefore, complainant was compelled to file the

private complaint. The learned Magistrate recorded the

sworn statements of witnesses and considering Ex.P.1 to

P.28 came to the conclusion that witnesses who have been

examined before the Court and also contents of complaint

discloses performance of the second marriage knowing

fully well that there was existence of first marriage.

4. The main contention of the learned counsel for

the petitioners is that all the relatives are included in the

complaint and they have not attended the marriage and

also not evaluated the evidence of P.Ws.2 and 3 and both

of them have not identified the petitioners herein and

there was no material to take cognizance against these

petitioners. The marriage was held at Chincholi and

complaint was filed at Basavakalyan and the complaint

discloses that they were residing outside the jurisdiction of

the Court of Basavakalyan and no enquiry is held under

Section 202 (1) of Cr.P.C., hence, it requires interference

of this Court.

5. Per contra, learned High Court Government

Pleader would vehemently contend that sworn statements

of witnesses is very clear regarding performing of second

marriage and complaint also disclose the information

gathered by the complainant through witnesses and

specific allegations are made in paragraph-3 of the

complaint that these petitioners have participated in

performing their marriage. The witness No.1 also had

gone to the village to meet his relatives therein he

witnessed the marriage between accused Nos.1 and 2 and

witness No.2 is also having relatives in the said village and

both of them are the eyewitnesses to the performance of

marriage. The witnesses in their sworn statements also

deposed regarding the place of marriage and date of

marriage and participation of these petitioners in the

marriage. The photographs of marriage of accused Nos.1

and 2 also discloses that these petitioners have

participated in the marriage which are marked as Ex.P1 to

20. Hence, the very contention of the learned counsel for

the petitioners that no material against these petitioners

cannot be accepted. However, learned counsel fairly

concedes that no enquiry is conducted as envisaged under

Section 202 of Cr.P.C.

6. Having heard the learned counsel for the

petitioners and also the learned High Court Government

Pleader for the respondent and also on perusal of the

complaint, it is clear that complaint was filed at

Basavakalyan and these petitioners are the residents of

Adilabad, Telangana State and they are not residing within

the jurisdiction in which the complaint is filed. Hence,

ought to have held an enquiry and thereafter the learned

Magistrate would have proceeded to issue the process and

the same is not complied with. This Court has discussed in

detail regarding compliance of section 202 of Cr.P.C., in

the judgment reported in 2021(4) Kar.L.J.573 in the

case of Mr.Prateek Jaswant and another vs. The State

of Karnataka and Another by relying upon several

judgments, this Court came to the conclusion that before

issuing process, the learned Magistrate ought to have

conducted an enquiry and then proceeded to issue

summons to the accused. The same has not been done

and hence, this judgment is applicable to the case on hand

regarding non-compliance of section 202(1) of Cr.P.C.

Hence, it requires interference of this Court. The other

contention with regard to material is concerned, I do not

find any force in the contention of the learned counsel for

the petitioners and the learned Magistrate taking into

account the contents of the complaint and also sworn

statement of witnesses particularly complainant as well as

witnesses who have witnessed the performance of second

marriage, taken note of and apart from that photographs

which have been produced at Exs.P1 to P20 also taken

note of. Hence, I do not find any force in the contention of

the learned counsel for the petitioners that there was no

material.

7. In view of the discussion made above, I pass

the following:

ORDER

The petition is allowed.

The impugned order dated 12.07.2019 for taking

cognizance of the offences punishable under Sections 494

and 149 of IPC in C.C.No.294/2019 (PCR No.5/2019)

passed by the Civil Judge and JMFC Basavakalyan is

hereby quashed for the limited purpose to hold an enquiry

under Section 202 (1) of Cr.P.C., and then take cognizance

as observed in the order.

In view of disposal of the main petition,

I.A.No.1/2021 for stay does not survive for consideration

and accordingly, it is disposed of.

Sd/-

JUDGE

VNR