Lalita And Anr vs State Of Karnataka And Anr
2021 Latest Caselaw 7090 Kant

                            1




         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH
                                                   R
     DATED THIS THE 23RD DAY OF DECEMBER 2021

                      BEFORE

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


        CRIMINAL PETITION No.201314/2018


BETWEEN:

1.     LALITA
       W/O SUBHASH NAWNEKAR
       AGE: 55 YEARS
       OCC: HOUSEHOLD

2.     SMITA W/O GIRISH
       AGE: 35 YEARS
       OCC: GOVT. SERVANT

       BOTH R/O H.NO.244
       VIDHYA NAGAR
       KALABURAGI-585103

                                   ... PETITIONERS

(BY SRI SANJAY A. PATIL, ADVOCATE)


AND:

1.     STATE OF KARNATAKA
       THROUGH POLICE
       WOMEN POLICE STATION
       KALABURAGI
                           2




     DIST. KALABURAGI-585102
     REPRESENTED BY ADDL. SPP
     HIGH COURT OF KARNATAKA
     KALABURAGI

2.   SHIVAMMA @ SHIVANI
     W/O SAIPRASAD @ SACHIN
     AGE: 38 YEARS
     OCC: GOVT. SERVANT
     R/O PLOT NO.18, SHANTI NAGAR
     SAI LAYOUT, SHANTI NAGAR
     KALABURAGI
     DIST. KALABURAGI - 585103

                                    ... RESPONDENTS

(BY SRI SHARANABASAPPA M. PATIL, HCGP FOR R1;
 SRI G.B.YADAV, ADVOCATE FOR R2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CRIMINAL PROCEDURE CODE, PRAYING TO QUASH
THE IMPUGNED ORDER DATED 16.10.2018 PASSED BY III-
ADDITIONAL     DISTRICT   AND    SESSIONS   JUDGE,
KALABURAGI, IN CRL.R.P.NO.373/2017 ON ITS FILE AND
THEREBY PLEASED TO CONFIRM AND UPHOLD THE ORDER
DATED 02.12.2017 PASSED BY II-ADDITIONAL CIVIL
JUDGE AND JMFC, KALABURAGI, IN C.C.NO.2984/2012 ON
ITS FILE.


     THIS    PETITION   HAVING   BEEN   HEARD   AND
RESERVED FOR ORDERS ON 07.12.2021, COMING ON FOR
PRONOUNCEMENT, THIS DAY, THE COURT MADE THE
FOLLOWING:
                                      3




                              ORDER

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

praying this Court to quash the impugned order dated

16.10.2018 passed by III-Additional District and Sessions

Judge, Kalaburagi, in Criminal Revision Petition

No.373/2017 and prayed this Court to confirm and uphold

the order dated 02.12.2017 passed by II-Additional Civil

Judge and JMFC, Kalaburagi, in C.C.No.2984/2012 and

pass such other orders or directions as deemed fit in the

facts and circumstances of the case.

     2.      Factual        matrix    of    the   case   is     that   on

15.02.2012    the      complainant/respondent            No.2     lodged

complaint before respondent No.1/Police stating that she

was given in marriage to Saiprasad/accused No.1 on

13.05.2009 and at the time of marriage, cash of

Rs.2,00,000/- and eleven tholas of gold was given to

accused No.1. When respondent No.2 started to reside in

matrimonial home along with accused No.1, accused No.1

started harassing her and forcing her to give her salary to

him. As such, respondent No.2 being unable to tolerate the

harassment, left her matrimonial house. It is also alleged

in the complaint that since respondent No.2 was working

at Afzalpur, every day she used to travel in public bus from

Kalaburagi to Afzalpur. On 14.02.2012 at about 8.30 a.m.,

when respondent No.2 was at Central Bus Stand at

Kalaburagi, all the accused i.e., accused Nos.1 to 4 came

to the bus stand, assaulted her with hands, scolded her in

filthy language and told her to bring Rs.10,00,000/- as

dowry and threatened that they would take away her life if

she does not bring money. Hence, the case is registered

in Crime No.13/2012. The police have investigated the

matter and filed chargesheet and deleted the name of the

present petitioners. Thereafter, the trial was commenced

and the complainant was examined and she was also

partly cross-examined. Thereafter, the prosecution has

filed an application under Section 319 of Cr.P.C., and the

same was rejected. Being aggrieved by the rejection order

dated 02.12.2017, the complainant filed the revision

petition in Criminal Revision Petition No.373/2017 before

III-Additional District and Sessions Judge, Kalaburagi. The

revisional Court vide order dated 16.10.2018 allowed the

revision petition and consequently allowed the application

filed under Section 319 of Cr.P.C., and issued summons

against accused Nos.3 and 4. Hence, the present petition

is filed before this Court.

3. The main contention of the learned counsel for

the petitioners is that the revisional Court has committed

an error in passing the impugned order without application

of facts as well as settled position of law. It is contended

that at the first instance name of the petitioners are not

reflected in the FIR and all the material chargesheet

witnesses including the complainant herself has given

statement before the respondent/Police during the course

of investigation that it was only accused Nos.1 and 2 who

had committed the said crime as on the alleged date of

incident and the present petitioners had not accompanied

accused Nos.1 and 2 to the bus stand. Hence, the

respondent/police after recording the statement of

material chargesheet witnesses found that both the

petitioners had not participated in the alleged crime.

Moreover, petitioner No.2 has given birth to a baby about

two months prior to the alleged date of incident. Petitioner

No.1 being old lady suffering from old age ailments had no

chance/possibility to participate in the incident which is

alleged to have taken place on 14.02.2012 and hence, the

petitioners were dropped while filing the chargesheet. The

learned Sessions Judge without appreciating the facts on

hand allowed the revision petition and failed to take note

of the order passed by the learned Magistrate who

categorically given reasons while rejecting the application

filed by the prosecution. The learned counsel also

submitted that under Section 319 of Cr.P.C., the Court

cannot issue summons in a routine manner, as summoning

the persons who are not chargesheeted, is a serious issue.

At the earliest point of time, the complainant herself has

given further statement that it is only accused Nos.1 and 2

who had committed offence and inspite of this, the

revisional Court committed an error in invoking Section

319 of Cr.P.C., without assigning proper and cogent

reasons. The learned counsel also submitted that

application which was filed by the prosecution has been

rejected by the Trial Court and the complainant has not

filed any such application. When the complainant has not

filed the said application, she cannot file any revision. The

complainant has no locus to file a revision petition against

the petitioners herein. The State only had filed the

application invoking Section 319 of Cr.P.C., before the trial

Court and hence, it requires interference of this Court.

The learned counsel in support of his arguments has

relied upon the judgment of the Hon'ble Apex Court in the

case of Labhuji Amratji Thakor and others vs. State of

Gujarat and another reported in [2019] ACR 13

wherein the Hon'ble Apex Court has discussed with regard

to Section 319 of Cr.P.C. The learned counsel brought to

the notice of the Court paragraphs-8, 9, 11 and 12

wherein the Hon'ble Apex Court relying upon its judgment

in the case of Hardeep Singh vs. State of Punjab and

others reported in (2014)3 SCC 92 comes to the

conclusion that mere fact that the Court has power under

Section 319 of Cr.P.C., to proceed against any person who

is not named in the FIR or in the chargesheet does not

mean that whenever in a statement recorded before the

Court, name of any person is taken, the Court has to

mechanically issue process under Section 319 of Cr.P.C.

The Court has to consider substance of the evidence,

which has come before it and as laid down by the

Constitution Bench in Hardeep Singh's case has to apply

the test, i.e., more than prima facie case as exercised at

the time of framing of charge, but short of satisfaction to

an extent that the evidence, if goes unrebutted, would lead

to conviction. The said test is not adverted to by the

revisional Court.

4. Per contra, the learned counsel for respondent

No.2/complainant submitted that the learned Trial Judge

did not consider the factual aspects of the case while

rejecting the application and even failed to consider the

allegations made in the FIR. The revisional Court while

passing the order taken note of the evidence given by the

complainant and extracted the same in the order at

paragraphs-8 and 9 since two witnesses were examined

before the Trial Court. Having considered and taken note

of assault made by the family members and also taken

note of the depositions wherein specifically deposed

regarding demand of dowry of Rs.10,00,000/- from her

parents and the prosecution having taken note of the

evidence of PWs.1 and 2 has rightly filed an application

under Section 319 of Cr.P.C., the revisional Court passed

the order allowing the revision petition and the application

filed under Section 319 of Cr.P.C. Hence, it does not

require any interference of this Court.

The learned counsel in support of his arguments has

relied upon the judgment of the Hon'ble Apex Court in the

case of Manjeet Singh vs. State of Haryana and Ors.,

passed in Criminal Appeal No.875/2021 disposed of

on 24.08.2021 wherein the complainant being aggrieved

by the order passed by the Trial Court as well as High

Court had approached the Hon'ble Apex Court and the

Hon'ble Apex Court allowed the petition and having

considered factual aspects of the case invoked Section 319

of Cr.P.C., and comes to the conclusion that the orders

passed by the Trial Court as well as High Court are

unsustainable and deserve to be quashed and set aside the

order and allowed summoning the accused persons. In the

said case also, the complainant only approached the

Hon'ble Apex Court and hence, the very contention that

the complainant has no right to approach the revisional

Court cannot be accepted.

5. The learned High Court Government Pleader

appearing for respondent No.1/State also reiterates the

grounds urged by the learned counsel for respondent

No.2/complainant that aggrieved victim had approached

the revisional Court and the revisional Court considered

the material on record and hence, it does not require

interference of this Court.

6. Having heard the learned counsel appearing

for the respective parties and also on perusal of the

material available on record, the questions that arise

before the Court are,

i. Whether the revision petition is maintainable by the complainant even though no application was filed before the Trial Court by the complainant invoking Section 319 of Cr.P.C.?

      ii.   Whether        the     revisional     Court      has
            committed       an   error     in    allowing    the
            revision      petition    in   summoning         the
            petitioners as additional accused?


Point No.1:

7. Having heard the learned counsel appearing

for the respective parties, it is not in dispute that when the

material emerges during the course of examination of

witnesses by the prosecution, the Court can summon

additional accused invoking Section 319 of Cr.P.C. It is

also settled law in view of the judgment of the Hon'ble

Apex Court in Hardeep singh's case supra as well as

judgment of the Hon'ble Apex Court in the case of Rajesh

and Ors., vs. State of Haryana reported in 2019 SAR

(Criminal) 714 wherein it is held that summoning a

person as additional accused, the Court can summon a

person as additional accused even on basis of the

statement made in the examination-in-chief of the witness

concerned and the Court need not wait till cross-

examination of such a witness. Further, observed that

when the appellants were named in the FIR but were not

named in chargesheet and nothing on record to show that

complainant was given an opportunity to submit the

protest application against non filing of the charge sheet

against the appellants. Depositions of PW.1 and PW.2

before Court attribute specific role of appellants in the

commission of the offence and observed that no error in

summoning the appellants to face trial as additional

accused on basis of statements of witnesses.

8. Hence, it is clear that additional accused can

be summoned who being the accused in the FIR but was

dropped in the chargesheet if the complainant witnesses

depose before the Court. Now the question before this

Court is whether the complainant can approach the

revisional jurisdiction when application filed by the

prosecution under Section 319 of Cr.P.C., is dismissed by

the Trial Court. The Hon'ble Apex Court in the case of

Manjeet Singh's case supra in detail discussed with

regard to an application filed by the counter part invoking

Section 319 of Cr.P.C. The main contention of the learned

counsel for the petitioner is that in the said case the

complainant had filed an application under Section 319 of

Cr.P.C., before the Trial Court and the same was rejected

and hence, approached the High Court and the High Court

also confirmed the same. The complainant himself had

approached the Hon'ble Apex Court and challenged the

order. In the case on hand, no doubt, application under

Section 319 of Cr.P.C., is filed by the prosecution i.e., by

the State and not by the complainant. Admittedly, the

revision petitioner before the trial Court is defacto

complainant. Hence, it is appropriate to consider the

meaning of the 'victim' which is defined under Section

2(wa) of Cr.P.C., the 'victim' means a person who has

suffered any loss or injury caused by reason of the act or

omission for which the accused person has been charged

and the expression 'victim' includes his or her guardian or

legal heir. The definition is elaborate within the expression

victim includes his or her guardian or legal heir.

9. Now this Court would like to refer the

revisional powers conferred on the party to approach the

Court. Section 397 of Cr.P.C., reads as under:

"397. Calling for records to exercise powers of revision.-

(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any

finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section

398.

(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

10. Having read the provision of revision, it is clear

that the Court can summon the records for satisfying itself

as to the correctness, legality or propriety of any finding,

sentence or order, recorded or passed, and as to the

regularity of any proceedings of such inferior Court, and

may, when calling for such record, direct that the

execution of any sentence or order be suspended. Having

read the provision of Section 397 of Cr.P.C., there is no

bar to entertain the revision petition and the Court only

has to examine as to the legality, correctness and

propriety of any finding or order passed by the Trial Court.

11. Now this Court would like to refer to the appeal

provision under Section 372 of Cr.P.C., which reads as

under:

"372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:

[Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.]"

12. Having read the proviso to Section 372 of

Cr.P.C., when an amendment is made in the year 2009, a

provision is made that the victim shall have a right to

prefer an appeal against any order passed by the Court

acquitting the accused or convicting for a lesser offence or

imposing inadequate compensation, and such appeal shall

lie to the Court to which an appeal ordinarily lies against

the order of conviction. In view of the amendment, a

provision is made even to the victim to question the

acquittal and also inadequate compensation.

13. This Court would like to rely upon Section 439

of Cr.P.C., wherein also the provision is made to the victim

and the victim can approach the High Court or Court of

Sessions for cancellation of bail and for arrest of accused

and commit him to custody.

14. Having considered the relevant proviso of

Section 372 of Cr.P.C., as well as Section 439 of Cr.P.C.,

and when the right is given to the victim to approach the

Court, very argument of the learned counsel for the

petitioners that the complainant cannot invoke revisional

jurisdiction to challenge the order passed by the learned

Magistrate cannot be accepted. Even if the application

filed by the prosecution is rejected, the complainant can

approach the revisional Court challenging the order of

legality and correctness of the finding of the Trial Court

since the complainant is a defacto complainant and the

State protects the rights of a victim. It is the obligation on

the State to protect the rights of the victim and ultimate

sufferer is the complainant if any order has been passed

against the interest of the victim. Hence, this Court has

taken note of the very vast meaning and definition of

'Victim' defined under Section 2(wa) of Cr.P.C. When

appeal provision is made under Section 372 of Cr.P.C.,

giving right in favour of the victim, and also when a

provision is made that even the complainant can seek for

cancellation of bail invoking Section 439(2) of Cr.P.C., the

contention of the learned counsel for the petitioners that

the complainant is not the applicant before the Trial Court

under Section 319 of Cr.P.C., and hence, she cannot file

revision petition cannot be accepted. As I have already

pointed out, the Court has to take note of the meaning of

the victim as well as relevant provisions made to protect

the interest of the victim. There is no bar under Section

397 of Cr.P.C., that the victim cannot approach the

revisional Court. The application under Section 319 of

Cr.P.C., is filed by the prosecution when the complainant

was examined before the Court and when the evidence

emerged against the petitioners herein. On rejection of the

application filed under Section 319 of Cr.P.C., ultimate

sufferer is the victim even though the application is filed by

the State and hence, very contention of the learned

counsel for the petitioners that revision is not maintainable

cannot be accepted. Hence, I answer point No.1 in the

affirmative.

Point No.2:

15. I have considered the factual aspects of the

case. Based on the complaint dated 15.02.2012 FIR was

registered wherein husband is arrayed as accused No.1

and it is also mentioned 'with three persons'. On perusal of

the complaint, in second page of the complaint specific

allegations are made against the petitioners stating that on

14.02.2012 at about 8.30 a.m., when she was in the bus

stand to go to Afzalpur to attend duty her husband, father-

in-law, mother-in-law and sister-in-law came to the bus

stand and abused her in filthy language and assaulted her

and if really not in need of divorce, she should get an

amount of Rs.10,00,000/- and also threatened her life.

But it is the contention of the learned counsel for the

petitioners that the very complainant has made further

statement before the police stating that by mistake she

mentioned the name of mother-in-law as well as sister-in-

law. The said further statement is disputed by the

complainant before the Court stating that she has not

given any such further statement before the Investigating

Officer. The trial Court has recorded the evidence of

PWs.1 and 2 wherein P.W.1 categorically stated about the

allegation made in the complaint and also in page No.5 she

has categorically stated that she has not given any further

statement before the police and also stated that her

mother-in-law and sister-in-law are not before the Court

and requested to add those two accused persons. The

prosecution has also examined PW.2. Both PWs.1 and 2

have deposed regarding the role of these petitioners and

particularly about the incident which has been narrated in

the complaint that at around 8.30 a.m., on 14.02.2012 all

the accused came, abused her in filthy language and

subjected her for assault and caused life threat. On

perusal of the order of the revisional Court also, in

paragraphs-8 and 9 the revisional Court extracted the

evidence of PWs.1 and 2 and taken note of the contents of

the complaint as well as evidence of PWs.1 and 2 and

allowed the application under Section 319 of Cr.P.C.

Having perused the order of the learned Magistrate, while

rejecting the application the learned Magistrate has

observed that these petitioners have been arrayed as

accused Nos.3 and 4 in the FIR, but the Investigating

Officer after investigation has filed chargesheet stating

that at the time of alleged incident accused Nos.3 and 4

were not present as per the further statement and hence,

the Investigating Officer had left out them in the

chargesheet as no material to file chargesheet against

them. The learned Magistrate has also observed that there

is no probable reason to believe that these petitioners

demanded any dowry and harassed the complainant and if

really accused Nos.3 and 4 had involved in the alleged

offences certainly the complainant could have filed

objections at the initial stage itself. The reasoning given by

the Trial Court is not sustainable for the reason that

though the Investigating Officer has stated that the

complainant appeared and given further statement that

accused Nos.3 and 4 were not there at the time of alleged

incident, the said further statement of the complainant is

disputed by the complainant and reiterated before the

Court when she was examined before the Trial Court that

she has not given such statement and the trial Court not

discussed about the same while rejecting the application

filed under Section 319 of Cr.P.C. The revisional Court

reconsidered the material and extracted the evidence of

PWs.1 and 2 and comes to the conclusion that specific

allegations are made against the petitioners that these

petitioners accompanied accused Nos.1 and 2 and

assaulted the complainant and the said allegations are

found in the FIR as well as in the evidence of PWs.1 and 2.

When such being the facts and circumstances of the case

and when such being the material available on record, I do

not find any error committed by the revisional Court in

allowing the application filed under Section 319 of Cr.P.C.

The revisional Court has given reasons for setting aside

the order of the learned Trial Judge and considering the

material on record only allowed the application. This Court

is also of the opinion that there are material to proceed

against the petitioners. Hence, I do not find any force in

the contention of the learned counsel for the petitioners

that there is no material. The judgment relied upon by the

learned counsel for the petitioners in Labhuji Amratji

Thakor's case supra not come to the aid of the

petitioners having considered the material on record on

merits. No doubt, while exercising the power under

Section 319 of Cr.P.C., Court has to exercise the said

power with due care and caution and not to exercise the

said power in a routine course but the material available

on record is clear that these petitioners abused and

accompanied with accused Nos.1 and 2 and subjected for

assault and the same is not only narrated in the complaint

and also reiterated in the evidence of complaint as well as

the witnesses. The Hon'ble Apex Court in Manjeet

Singh's case held that the complainant can question the

rejection of application filed under Section 319 of Cr.P.C.

Hence, I answer point No.2 in the negative.

16. In view of the discussions made above, I pass

the following:

ORDER

The petition is dismissed.

Sd/-

JUDGE

NB*