Yashodha D/O Nagappa vs The State Of Karnataka
2022 Latest Caselaw 1288 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

       DATED THIS THE 31ST DAY OF JANUARY 2022

                       BEFORE

      THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

          CRIMINAL PETITION NO.101579/2021

BETWEEN
YASHODHA D/O NAGAPPA,
AGE 38 YEARS, OCC -HOUSEWIFE,
R/O. LAXMI CAMP, NEAR MAREMMA TEMPLE,
TQ -GANGAVATHI, DIST KOPPAL-583 227.
                                        ...PETITIONER
(BY SRI A.M.MALIPATIL, ADVOCATE)

AND

1.    THE STATE OF KARNATAKA
      THROUGH GANGAVATHI TOWN POLICE,
      REPRESENTED BY SPECIAL PUBLIC PROSECUTOR,
      HIGH COURT OF KARNATAKA
      DHARWAD.

2.    SMT ERAMMA W/O. SHARANEGOUDA POLICEPATIL,
      AGE 37 YEARS, OCC- HOUSEWIFE,
      R/O. CHANNABASAVESHWARA COLONY,
      NEAR SINGANAL SHANMUKAPPA COMPLEX,
      BANNIGIDAD CAMP, GANGAVATHI,
      TQ. AND DIST. KOPPA-583 227.
                                    ...RESPONDENTS
      (BY SRI RAMESH CHIGARI, HCGP)
                                 2




     THIS CRIMINAL PETITION IS FILED U/S. 482 OF
CR.P.C. SEEKING TO QUASH THE ORDER OF ISSUANCE OF
SUMMONS DATED 23.08.2019 AND CONSEQUENTLY
ENTIRE PROCEEDINGS IN S.C.NO.57/2019 FOR THE
OFFENCES P/U/S 324, 307, 109 R/W SEC. 34 OF IPC,
PENDING ON THE FILE OF THE DISTRICT AND SESSIONS
JUDGE, KOPPAL, REGISTERED IN CRIME NO.25/2019 AT
GANGAVATHI TOWN POLICE STATION, PRODUCED AT
ANNEXURE-A.

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

                           ORDER

Petitioner in the subject petition calls in question the

proceedings in S.C.No.57/2019 filed for offences

punishable under Sections 324, 307, 109 of IPC read with

Section 34 of the IPC.

2. Heard Sri A.M.Malipatil, learned counsel appearing

for respondent and Sri Ramesh Chigari, learned HCGP

appearing for respondent No.1-State.

3. Brief facts leading to the filing of the present

petition as borne out from the pleadings are as follows:

One Eramma, the 2nd respondent, W/o.

Sharanagouda Police Patil, files a complaint on 09.02.2019,

claiming herself to be the second wife of Sharanagouda

Police Patil. The narration in the complaint is that, on

08.02.2019, at about 9.00 p.m., the complainant claims

that she tried to call her husband and the phone was

throughout busy. After about 10 minutes, the phone was

switched off. Thereafter, at about 10.45 p.m. one

Sharanappa Gorebal intimates the complainant that her

husband was lying near the Church and something had

happened to him. On such news, the complainant rushes

to the spot and finds her husband lying down with grievous

injuries. He was immediately shifted to the hospital and on

the aforesaid facts, a case came to be registered against

unknown persons in Crime No.25/2019 for offences

punishable under Sections 324, 307, 109 of IPC r/w.

Section 34 of the IPC.

4. The police conducted investigation and also filed a

charge sheet on 05.04.2019, in C.C.No.684/2019 for the

very same offences that were alleged in the FIR. Since

offence punishable under Section 307 of IPC and that

would become exclusively triable by the Sessions Court, a

committal order was passed and the case is registered as

S.C.No.57/2019. The petitioner is accused No.2 in the said

proceedings. On the aforesaid facts, the petitioner has

knocked the doors of this Court raising a challenge to the

entire proceedings in S.C.No.57/2019.

5. The learned counsel for the petitioner would

vehemently argue and contend that when the FIR was

registered, the name of the petitioner had nowhere

figured. The police conducted a shoddy investigation and

have dragged the name of the petitioner into these

proceedings. He would submit that the petitioner has

nothing to do with the offence and seek quashment of the

proceedings.

6. On the other hand, the learned HCGP would

contend that it is a matter of trial and that the petitioner

has to come out clean as there are allegations of

involvement of the petitioner in attempting to murder

Sharanappa Police Patil, the husband of the complainant.

7. I have given my anxious consideration to the

submissions made by the learned counsel appearing for the

respective parties and perused the material on record.

8. It is not in dispute that Sharanagouda Police Patil,

the victim did suffer grievous injuries and at the time when

the complaint was registered, it was on admission of the

victim to the hospital. His body was lying near the Church

and was nobody in the surrounding. Therefore, FIR is

registered against unknown persons. The police after

investigation have arraigned the petitioner as accused No.2

based upon various statements recorded during

investigation. The summary of the charge sheet which

depicts allegation against the accused reads as follows:

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9. In terms of afore-extracted summary of the charge

sheet, the allegations without doubt exists. It is alleged

that the petitioner was responsible for what has happened

at 9.30 p.m. which would touch upon the allegations

levelled against the petitioner for the offences punishable

as aforesaid.

10. In my considered view, it is a matter of trial that

the petitioner has to come out clean against the serious

triable issues in the case at hand. It is apposite to refer to

the judgment of the Apex Court in the case of KAPTAN

SINGH VS. STATE OF UTTAR PRADESH reported in (2021)

9 SCC 35, wherein the Apex Court considering the power

of exercise of inherent jurisdiction under Section 482 of the

Cr.P.C. holds that if there are serious triable issues the

High Court under Section 482 of Cr.P.C. should exercise

restraint. The Apex Court has held as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under

Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered.

However, thereafter when the statements are recorded, evidence is collected and the charge- sheet is filed after conclusion of the investigation/inquiry the matter stands on different

footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to

what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by

entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

11. In the light of the allegations found that would

touch upon the offences alleged against the petitioner,

albeit prima facie, it is for the petitioner to come out clean

in the trial. Therefore, following the dictum of the Apex

Court in the case of KAPTAN SINGH (supra), I decline to

exercise my jurisdiction under Section 482 of the Cr.P.C.

12. For the aforesaid reason, the following :

ORDER

(i) The petition lacks merit and is dismissed.

(ii) It is made clear that the observations

made in the course of this order is only for

the purpose of consideration of the case of

the petitioner under Section 482 of Cr.P.C.

The trial Court shall not be bound or be

influenced by any of the observations made

hereinabove and pass appropriate orders

on the merit of the matter.

SD/-

Ckk                                             JUDGE