Smt. G. Rathnamma W/O Prakash vs The State Of Karnataka
2022 Latest Caselaw 1753 Kant

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 4TH DAY OF FEBRUARY 2022

                            BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

               CRIMINAL PETITION NO.102333/2021

BETWEEN:

SMT. G. RATHNAMMA W/O PRAKASH
AGE. 49 YEARS, OCC. SENIOR STAFF
NURSE IN VIMS,
R/O. H.NO. C/33, VIMS HOSPITAL,
QUARTERS OPD, CANTONMENTS,
BALLARI, DIST. BALLARI-583104
                                                  ...PETITIONER.
(BY SHRI RAJASHEKHAR B HALLI, ADVOCATE.)

AND:

1.   THE STATE OF KARNATAKA
     PSI COWALBAZAR POLICE STATION,
     CIRCLE: BALLARI CITY SUB DIVISION,
     REPRESENTED BY SPP,
     HIGH COURT OF KARNATAKA
     DHARWAD BENCH, AT. DHARWAD.

2.   SAMPATH KUMAR
     S/O LATE BASAVARAJAPPA A.C
     AGE ABOUT. 43 YEARS,
     OCC. SUPERINDENT IN VIMS BALLARI,
     R/O. VIMS/C-9, NEW QUARTERS,
     CANTONMENTS, BALLARI
     DIST. BALLARI-583104
                                             ...RESPONDENTS.
(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1;
SHRI T.HANUMAREDDY, ADVOCATE, FOR R.2.)
                                    2




       THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ENTIRE      PROCEEDINGS      AGAINST      PETITIONER/ACCUSED       IS
CONCERNED IN C.C.NO.109/2021 (CRIME NO.1/2019) PENDING ON
THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC, BALLARI,
REGISTERED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 323,
341, 353 AND 504 OF THE INDIAN PENAL CODE, 1860, ETC.,.

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


                                 ORDER

The petitioner is before this Court calling in question

proceedings in C.C.No.109 of 2021 pending on the file of II

Addl. Civil Judge and JMFC Court, Ballari, registered for offences

punishable under Section 323, 341, 353, 504 of the Indian

Penal Code, 1860.

2. Heard Shri Rajashekhar B. Halli, the learned counsel

appearing for the petitioner, Shri Ramesh Chigari, the learned

HCGP appearing for the 1st respondent State and Shri

T.Hanumareddy, the learned counsel appearing for the 2nd

respondent.

3. Brief facts leading to the filing of the present

petition as borne out from the pleading are as follow:

The parties to the lis have filed two complaints against

each other. For easy reference the parties as obtaining in the

present Criminal Petition will be referred to in respect of the said

two complaints. The 2nd respondent registers a complaint on

9.01.2019 by submission of statement before the Police about

an incident that happened in VIMS hospital. Based on the said

complaint the crime came to be registered against the petitioner

in Crime No.1 of 2019 for offences punishable under Section

323, 341, 353 and 504 of the IPC. The complainant in the said

case is the second respondent. The allegation against the

petitioner in the said complaint is that the petitioner

Rathnamma was working in the ICU at the VIMS hospital in

which the 2nd respondent was working as Superintendent. It is

the claim of the petitioner in the said complaint that the

Superintendent was not allotting work to the petitioner and had

on several occasions troubled the petitioner. The contents of the

complaint or its purport are not germane for consideration of

the present lis as the proceedings are pending consideration

before the competent Court. It transpires that the charge sheet

also is filed in Crime No.6 of 2019.

4. The complainant G.Rathnamma in Crime No.6 of

2019 registers the complaint on 9-01-2019 at 18.15 hours. The

allegation in the complaint is that the Superintendent on being

asked that she was not being allotted work, he asked

Rathnamma to come to him once and appears to have hurt her

modesty. Immediately on registration of the complaint in Crime

No.6 of 2019 the Superintendent against whom the complaint

was registered registers complaint in crime No.1 of 2019. The

crime is registered at 12.30 a.m. on 10.01.2019 i.e., hours after

registration of the crime by the petitioner. In Crime No.1 of

2019 the 2nd respondent is the complainant. Therefore, there

are two criminal cases pending on the same incident one by the

present petitioner in Crime No.6 of 2019 and the other the

impugned proceedings in Crime No.1 of 2019 registered by the

2nd respondent. The criminal proceedings instituted are against

each other. The offences alleged in both these cases are one the

same i.e., offences punishable under Sections 323, 341, 353

and 504 of the IPC except the offence punishable under Section

354 which is found in the complaint registered by the petitioner.

Therefore, both these proceedings will have to be taken up

together by the competent Court. Section 210 of the Cr.P.C.

reads as follows:

"210. Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.--

(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation.

(2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report.

(3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code."

Where two proceedings are pending consideration, the

procedure to be followed is as depicted under Section 210 of the

Cr.P.C. Section 210 has been interpreted by the Apex Court in

the case of PAL v. STATE OF UTTAR PRADESH reported in

(2010) 10 SCC 123, wherein the Apex Court has held as

follows:

26. Section 210 CrPC provides the procedure to be followed when there is a complaint case and police investigation in respect of the same offence. Sub- section (1) of Section 210 provides that when in a case instituted otherwise than on a police report, namely, a complaint case, the Magistrate is informed during the course of inquiry or trial that an investigation by the police is in progress in relation to the offence which is the subject-matter of inquiry or trial held by him, the Magistrate is required to stay the proceedings of such inquiry or trial and to call for a report on the matter from the police officer conducting the investigation.

27. Sub-section (2) of Section 210 provides that if a report is made by the investigating officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person, who is an accused in a complaint case, the Magistrate shall inquire into or try the two cases together, as if both the cases had been instituted on a police report. Sub-section (3) provides that if the police report does not relate to any accused in the complaint case, or if the Magistrate does not take cognizance of any offence on a police report, he shall proceed with the inquiry or trial which was

stayed by him, in accordance with the provisions of the Code.

28. Although it will appear from the above that under Section 210 CrPC, the Magistrate may try the two cases arising out of a police report and a private complaint together, the same, in our view, contemplates a situation where having taken cognizance of an offence in respect of an accused in a complaint case, in a separate police investigation such a person is again made an accused, then the Magistrate may inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. That, however, is not the fact situation in the instant case, since the accused are different in the two separate proceedings and the situation has, in fact, arisen where prejudice in all possibility is likely to be caused in a single trial where a person is both an accused and a witness in view of the two separate proceedings out of which the trial arises.

29. In our view, this is a case where the decision in Harjinder Singh case [(1985) 1 SCC 422 : 1985 SCC (Cri) 93] would be more apposite. In the said case, the question of Article 20(2) of the Constitution, as well as Section 300 CrPC, relating to double jeopardy was considered. A similar situation has arisen in this case where the versions in the complaint case and the police report are totally different, though arising out of the same incident. In our view, this is a case where the two trials should be held simultaneously but not as a single trial.

30. The facts of the case also warrant that the two trials should be conducted by the same Presiding Officer in order to avoid conflict of decisions. As was observed in Harjinder Singh case [(1985) 1

SCC 422 : 1985 SCC (Cri) 93] clubbing and consolidating the two cases, one on a police challan and the other on a complaint, if the prosecution versions in the two cases are materially different, contradictory and mutually exclusive, should not be consolidated but should be tried together with the evidence in the two cases being recorded separately, so that both the cases could be disposed of simultaneously.

31. Although the High Court has relied on the provisions of Section 210 of the Code in directing that the two cases be clubbed together, in our view, the fact situation does not really attract the provisions contemplated in the said section. On the other hand, as indicated hereinabove, the trial court, in the unusual facts of the case, is required to hear the two cases together, though separately, and take evidence separately, except in respect of all witnesses who would not be affected either by the provisions of Article 20(2) of the Constitution or Section 300 CrPC.

32. The order of the High Court impugned in the appeal cannot, therefore, be sustained and is, accordingly, set aside. The trial court shall proceed to hear the two cases simultaneously, but separately, in the light of the observations made hereinbefore and dispose of the same simultaneously as well, as expeditiously as possible.

The Apex Court though directs both the cases to be taken up

together but to be heard separately. Therefore, the subject case

is a case where the trial Court will have to proceed to hear both

the cases simultaneously but separately in the light of the

observations made by the Apex Court in the aforesaid

judgment.

5. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal petition lacks merit and is dismissed.

(ii) The trial Court shall hear both the cases arising in Crime Nos.1 of 2019 and 6 of 2019 simultaneously, but separately as is observed by the Apex Court in the aforementioned judgment.

(iii) Ordered accordingly.

SD/-

JUDGE Mrk/-