Karnataka High Court
Smt Ranjitha vs Sri K Lenin on 14 November, 2022
Bench: Dr.H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.763 OF 2011
c/w.
CRIMINAL PETITION No.6009 OF 2017
AND
CRIMINAL PETITION No.6010 OF 2017
CRIMINAL REVISION PETITION No.763 OF 2011
BETWEEN:
Smt. Ranjitha,
Aged about 37 years,
D/o. Sri. P. Ashok Kumar,
No.5-F, Pearl Pranav Apartment,
T. Nagar, Chennai - 600 017.
..Petitioner
(By Smt. K.M. Archana, Amicus Curiae)
AND:
1. Sri. K. Lenin,
Who was formerly known and called as
Nithya Dharmananda,
Aged about 35 years,
S/o. Sri. L. Karuppannan,
Presently said to be available
At Veppampoondi Village,
Athur Taluk,
Salem District,
Tamil Nadu.
2
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
2. Smt. Aarthi Rao,
Aged about 40 years,
W/o. Sri. Manickkam Narayan,
C/o. Sri. K. Suman,
House No.20, 1st Floor,
P.S. Kolam Shivasamy Salai,
Mylapore,
Chennai - 600 004.
Also said to be available at
No.3118, Village Circle,
Ann Arbor, Detroit,
Michigan - 48108,
United States of America.
3. Sri. M. Sridhar,
Advocate,
Fountain Plaza Building,
5th Floor, Egmore,
Chennai - 600 008.
.. Respondents
(By Sri. Ashwin Vaish, Advocate for R-1 and R-2;
Sri. Javeed S., Amicus Curiae for R-3)
****
This Criminal Revision Petition is filed under Section 397
read with Section 401 of the Code of Criminal Procedure, 1973,
praying to call for the records in PCR No.183/2010 which is
presently numbered as C.C.No.599/2011 and which case is
pending on the file of the Principal Civil Judge (Jr.Divn.,) and
J.M.F.C., Ramanagara and further be pleased to reverse and set
aside the order dated 04.06.2011 passed in the case insofar as
it relate to the non-registration of a case against the respondents
for an offence which is made penal under Section 376 read with
Section 511 and 120-B of the Indian Penal code and further be
pleased to issue a direction to the Magistrate to register a case
for the said offence also and thereafter to proceed with the case
in accordance with law, in the ends of justice.
3
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
CRIMINAL PETITION No.6009 OF 2017
BETWEEN:
Ms. Aarthi Rao,
Age: 42 years,
D/o. Shri Sethumadhavan
R/o. PHA Grace Garden Apartments,
Hennur Main Road,
Bengaluru - 560 043.
..Petitioner
(By Sri. Ashwin Vaish, Advocate)
AND:
Smt. Ranjitha
Age - 44 years
D/o. Ashok Kumar,
R/o. No.119, State Bank Colony Road,
Virugambakkam, Chennaia,
Tamil Nadu.
And also:
No.5F, Pearl Pranav Apartments
T. Nagar, Chennai - 60018
.. Respondent
(By Smt. K.M. Archana, Amicus Curiae)
****
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to set aside the order
dated 25.05.2017 passed in Criminal Revision Petition
No.39/2015 by the Court of the Principal District and Sessions
Judge, Ramanagara and consequently issue an appropriate order
directing quashing of order dated 31-12-2010 taking cognizance
and order dated 04-06-2011 issuing summons in complaint
bearing C.C.No.599/2011, in case titled, Smt. Ranjitha V.Nithya
Dharmananda and others, pending before the Court of Principle
4
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Civil Judge & Judicial Magistrate First Class, Ramanagara District;
and Call for the records in C.C.No.599/2011 pending on the file
of Civil Judge and Chief Judicial Magistrate, Ramanagara
District; and to pass any other order in the interest of justice.
CRIMINAL PETITION No.6010 OF 2017
BETWEEN:
Sri. Nithya Dharmananda
@ K. Lenin
Age - 40 years
S/o. Late Sri. L. Karuppanan
Old No.94, Odaikadu
Veppampoondi Village
Gangavalli Tq.
Salem District
Tamil Nadu - 600 008.
..Petitioner
(By Sri. Ashwin Vaish, Advocate)
AND:
Smt. Ranjitha
Age - 44 years
D/o. Ashok Kumar,
R/o. No.119, State Bank Colony Road,
Virugambakkam, Chennaia,
Tamil Nadu - 600017.
And also:
No.5F, Pearl Pranav Apartments
T. Nagar, Chennai - 600017
.. Respondent
(By Smt. K.M. Archana, Amicus Curiae)
****
5
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
This Criminal Petition is filed under Section 482 of the
Code of Criminal Procedure, 1973, praying to set aside the order
dated 25.05.2017 passed in Criminal Revision Petition
No.40/2015 by the Court of the Principal District and Sessions
Judge, Ramanagara and consequently issue an appropriate order
directing quashing of order dated 31-12-2010 taking cognizance
and order dated 04-06-2011 issuing summons in complaint
bearing C.C.No.599/2011, in case titled, Smt. Ranjitha V.Nithya
Dharmananda and others, pending before the Court of Principle
Civil Judge & Judicial Magistrate First class, Ramanagara District;
and Call for records in C.C.No.599/2011 pending on the file of
Civil Judge and Chief Judicial Magistrate, Ramanagara District;
and pass any other order in the interest of justice.
This Criminal Revision Petition and the Criminal Petitions
having been heard through Physical Hearing/Video Conferencing
Hearing and reserved on 02-11-2022, coming on for
pronouncement of Orders, this day, the Court made the
following:
ORDER
The petitioner in Criminal Revision Petition
No.763/2011 (henceforth referred to as "the complainant")
is the complainant in C.C.No.599/2011, which is pending in
the Court of the learned Principal Civil Judge (Jr.Dn.) &
Judicial Magistrate First Class, Ramanagara (hereinafter for
brevity referred to as "the Trial Court").
The petitioner in Criminal Petition No.6010/2017
(henceforth referred to as "accused No.1"), the petitioner in
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Criminal Petition No.6009/2017 (henceforth referred to as
"accused No.2") and one Sri.M. Sridhar are accused No.1,
accused No.2 and accused No.3 respectively in the said
C.C.No.599/2011. Being aggrieved by the order dated
04-06-2011 passed by the Trial Court, in
P.C.R.No.183/2010, instituted by the complainant and
which is presently numbered as and pending in
C.C.No.599/2011, insofar as it relating to the Trial Court
registering a criminal case against accused No.1 to accused
No.3, only for the offences punishable under Sections 354,
506, 384, 509 of the Indian Penal Code, 1860 (hereinafter
for brevity referred to as "the IPC") and observing that,
there are no materials regarding the commission of the
offences punishable under Sections 376 and Section 120B of
the IPC, the complainant has filed the present Criminal
Revision Petition No.763/2011 under Section 397 read with
Section 401 of the Code of Criminal Procedure, 1973
(hereinafter for brevity referred to as "Cr.P.C.").
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
The accused No.1 and accused No.2 had challenged
the very same impugned order of the Trial Court dated
04-06-2011, under Section 397 of the Cr.P.C. by filing
Criminal Revision Petition No.40/2015 and Criminal Revision
Petition No.39/2015 respectively in the Court of the
Principal District and Sessions Judge, Ramanagara
(hereinafter for brevity referred to as "the Sessions Judge's
Court"). The said Court, by its common order dated
25-05-2017 dismissed both the revision petitions. Still,
aggrieved by the complaint filed by the complainant and the
order for issuance of summons passed by the Trial Court
and the proceedings emanating there from, the accused
No.1 and accused No.2 have filed the present Criminal
Petition No.6010/2017 and Criminal Petition No.6009/2017
respectively before this Court under Section 482 of the
Cr.P.C. and have sought the setting aside of the common
order dated 25-05-2017, passed in Criminal Revision
Petition No.39/2015 and Criminal Revision Petition
No.40/2015, by the learned Sessions Judge's Court and
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
seeking quashing of the order dated 31-12-2010, taking
cognizance and order dated 04-06-2011 issuing summons
in C.C.No.599/2011, pending in the Trial Court.
Since all these matters are emanating from a private
complaint filed by the complainant in PCR No.183/2010
(later numbered as C.C.No.599/2011), in the Trial Court
and between the same parties, all these three matters are
treated as connected matters and taken up together for
their disposal under a common order.
2. Respondent No.1 and respondent No.2 in Criminal
Revision Petition No.763/2011 are being represented by
their learned counsel.
3. In spite of the service of notice, since the accused
No.3 (respondent No.3 in the Criminal Revision Petition
No.763/2011), who himself is a practicing Advocate, chose
to remain absent, as such, remained un-represented,
learned counsel - Sri. S. Javeed was appointed as an
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Amicus Curiae for the accused No.3 (respondent No.3 in
Criminal Revision Petition No.763/2011) by the order of this
Court dated 21-06-2022.
4. Similarly, since the learned counsel for the
petitioner in Criminal Revision Petition No.763/2011, which
complainant/petitioner was the sole respondent in Criminal
Petition No.6009/2017 and Criminal Petition No.6010/2017
also remained absent on several dates of hearing, this
Court, by its order dated 26-05-2022, appointed learned
counsel - Smt. K.M. Archana, as an Amicus Curiae for the
petitioner (complainant) in Criminal Revision Petition
No.763/2011 and for the sole respondent in Criminal
Petition No.6009/2017 and Criminal Petition No.6010/2017.
5. The Trial Court records were called for and the
same are placed before me.
6. Heard the arguments from both side. Perused the
materials placed before me including the impugned order
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
and annexures to all the three petitions and the Trial Court
records, carefully.
7. After hearing the learned counsels from both side,
the points that arise for my consideration in these matters
are:
[i] Whether the order dated 04-06-2011
passed by the Principal Civil Judge (Jr.Dn.) and
J.M.F.C. Ramanagara, in C.C.No.599/2011 is
erroneous and perverse to the extent of not
registering the case against accused No.1
therein for the offence punishable under Section
376 read with Section 511 and Section 120B
read with Section 34 of the IPC?
[ii] Whether the order dated 04-06-2011
passed by the Principal Civil Judge (Jr.Dn.) and
J.M.F.C. Ramanagara, in C.C.No.599/2011
registering the case against the accused No.1
and accused No.2, only for the offences
punishable under Sections 354, 506, 384 and
509 of the IPC and issuing summons to the
accused No.1 and accused No.2 and the common
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
order of the Principal District and Sessions
Judge, Ramanagara, passed in Criminal Revision
Petition No.39/2015 and Criminal Revision
Petition No.40/2015 dated 25-05-2017,
dismissing those two revision petitions filed by
the accused No.1 and 2 before it, are erroneous
and perverse?
[iii] Whether the impugned order dated
04-06-2011 passed by the Principal Civil Judge
(Jr.Dn.) and J.M.F.C. Ramanagara, in
C.C.No.599/2011 and common order dated
25-05-2017, passed by the Principal District and
Sessions Judge, Ramanagara, in Criminal
Revision Petition No.39/2015 and Criminal
Revision Petition No.40/2015 warrants any
interference at the hands of this Court?
[iv] Whether the order dated 31-12-2010
taking cognizance and the order dated
04-06-2011, passed by the Principal Civil Judge
(Jr.Dn.) and J.M.F.C. Ramanagara, for issuance
of summons in C.C.No.599/2011 against the
accused No.1 and accused No.2 deserves to be
quashed by setting aside the common order
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
dated 25-05-2017 passed in Criminal Revision
Petition No.39/2015 and Criminal Revision
Petition No.40/2015 by the Court of the Principal
District and Sessions Judge, Ramanagara?
8. The complainant has instituted a criminal case by
filing a private complaint in P.C.R.No.183/2010, under
Section 200 of the Cr.P.C., against the accused No.1,
accused No.2 and accused No.3 in the Trial Court for the
offences punishable under Sections 354, 384, 506, 509,
120B, 376 read with Section 511 read with Section 34 of
the IPC.
9. The summary of the complaint of the complainant
in the Trial Court was that, the complainant was a cine
actress by profession, having acted in large number of
movies in all the South Indian languages. She has always
been interested in religion and spirituality from her very
young age. She attended the discourses of
Shree Nityananda Swami and realised that his discourses
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
and training methods were profoundly reformative and
took greater interest in the teachings of Shree Nityananda
Swami. As a devotee of Shree Nityananda Swami, she
was attending his Ashrama at Nityananda Dhyana Peetam,
situated at Ramanagara District, Karnataka State. She
became a disciple of Shree Nityananda Swami.
The first accused was one of the Ashramites, amongst
several hundred permanent and full-time volunteers at
Nityananda Dhyana peetam. The second accused, who is a
resident of Detroit, State of Michigan, United States of
America, projected herself to be a disciple of Shree
Nityananda Swami, became a volunteer of Nityananda
Dhyana peetam. The third accused is an Advocate by
profession, having friendship and strong contact with the
first accused.
It is the specific contention of the complainant in the
complaint that, the accused No.1 introduced himself to her
as a close person to Swami Nityananda. The other
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Ashramites, particularly, brahmacharinis (resident female
religious practitioners of Nityananda Dhyana Peetam) were
suspicious about accused No.1 and had warned the
complainant that, accused No.1 was not a person to be
believed.
That being the case, on the date 13-02-2010, in the
morning, while the complainant was moving towards a
Restaurant at the Ashrama, the accused No.1 called her,
later, took her to his room on the pretext of showing her
something in his laptop, pushed her on the floor, sat on the
top of her, and wanted to have a forcible physical
relationship with her at any rate. However, at some body
coming near the room and knocking the door, the
complainant, who was resisting the act of the accused
No.1, overpowered him and pushed him aside and went
towards the other side of the room.
It is further the complaint of the complainant that, the
accused No.1 used to do the morphing of the photographs
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
including the photograph of Shree Swami Nityananada and
the complainant in their private postures with the
conspiracy and help of accused No.2 - Smt. Aarti Rao, and
in that connection, had demanded for a sum of `20.00
Crores, through accused No.3 and thus has extorted.
10. The Trial Court, after receipt of the complaint
lodged by the complainant, recorded the sworn statements
of the complainant and one Smt. Manithya Bakthikananda
and another person Sri. Nithya Brahma Swaroopananda and
one more person Sri. Nithya Pranananda and thereafter
proceeded to pass the impugned order dated 04-06-2011,
opining that the statements of CW-1 to CW-4 do not
disclose the commission of the offences under Section 376
and 120B of the IPC and that there are prima facie material
to register a case against Accused No.1 to accused No.3
under Sections 354, 506, 384, 509 of the IPC. It observed
that there are no material regarding commission of the
offence under Section 376 read with Section 511 and
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Section 120B of the IPC. Accordingly, the registry of the
Trial Court was directed to register a criminal case against
accused Nos.1 to 3, only for the offences punishable under
Sections 354, 506, 384 and 509 of the IPC and to issue
summons.
11. The learned Amicus Curiae for the complainant, in
her argument submitted that, the Trial Court ought to have
taken cognizance of the offence punishable under Section
376 read with Section 511 and under Section 120B of the
IPC also, since the allegations were very clear and sworn
statements of CW-1 to CW-4 also have revealed the
commission of those offences.
Learned Amicus Curiae further submitted that, the
Trial Court ought to have considered what is stated in the
complaint of the complainant and should have expected no
further material at the stage of registration of the crime and
taking cognizance of the alleged offences.
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
In her support, the learned Amicus Curiae relied upon
two judgments of the Hon'ble Apex Court, which would be
referred to at an appropriate stage herein afterwards.
12. Learned counsel for the accused No.1 and
accused No.2, in his argument contended that, admittedly,
accused No.2 was not in India at the time of the
commission of the alleged offence or during the nearby
dates, as such, the question of she involving in the alleged
conspiracy does not arise.
Learned counsel further submitted that, there are no
materials to show that, there was any conspiracy among
the accused persons, including accused No.2. When the
complainant has chosen not to go the Police and file a
complaint under Sections 155 and 156 of the Cr.P.C., but
has chosen to file a private complaint under Section 200 of
the Cr.P.C., it was required of her to produce sufficient
materials to make out a prima facie case to take cognizance
against the accused persons for the alleged offences. In the
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
absence of any primary materials, more particularly, to
show a prima facie case for the alleged conspiracy, the
mere self-serving statement of the complainant was not
sufficient to take cognizance for the alleged offences, more
particularly, against accused No.2, against whom no specific
averments are made in the complaint.
Learned counsel further submitted that Section 202 of
the Cr.P.C. requires postponement of issuance of process
when the accused are residing outside the territorial
jurisdiction of the Court and the Court is required to hold an
inquiry by himself or direct an investigation to be made by
a Police Officer or by such other person as he thinks fit for
the purpose of deciding whether or not there is sufficient
ground for proceeding.
However, the Trial Court Judge, without application of
mind and without waiting for such inquiry, has jumped to
the conclusion that the complainant has made out a prima
facie case for the offences, for which, she has ordered for
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
registration of the criminal case and issuance of the
summons.
Learned counsel further submitted that, the said order
of the Trial Court was not considered by the learned
Sessions Judge's Court also, which rejected the revision
petition of accused No.1 and accused No.2.
Taking the support of several of the judgments of the
Hon'ble Apex Court which would be referred to herein
afterwards, at an appropriate stage, the learned counsel
submitted that the impugned orders passed by the Trial
Court as well the Sessions Judge's Court deserve to be set
aside and the criminal proceedings against accused No.1
and accused No.2 deserve to be quashed.
13. Learned Amicus Curiae for accused No.3
(respondent No.3 in Criminal Revision Petition
No.763/2011) in his very brief argument submitted that, no
specific allegations are made against accused No.3. There is
no role of accused No.3 in the alleged offences. As such,
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
taking cognizance of the offences against accused No.3 and
ordering for issuance of summons against accused No.3 was
also erroneous.
14. Section 202 of the Code of Criminal Procedure,
1973, reads as follows:
"202. Postponement of issue of process.-(1)
any Magistrate, on receipt of a complaint of an
offence of which he is authorised to take cognizance
or which has been made over to him under Section
192, may, if he thinks fit, and shall, in a case where
the accused is residing at a place beyond the area in
which he exercises his jurisdiction postpone the issue
of process against the accused, and either inquire
into the case himself or direct an investigation to be
made by a police officer or by such other person as
he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding:
Provided that no such direction for
investigation shall be made -
(a) where it appears to the Magistrate
that the offence complained of is triable
exclusively by the Court of Sessions; or
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
(b) where the complaint has not
been made by a Court, unless the complainant
and the witnesses present (if any) have been
examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the
Magistrate, may, if he thinks fit, take evidence of
witnesses on oath:
Provided that if it appears to the Magistrate
that the offence complained of is tirable exclusively
by the Court of Session, he shall call upon the
complainant to produce all his witnesses and
examine them on oath.
(3) If an investigation under sub-section (1)
is made by a person not being a police officer, he
shall have for that investigation all the powers
conferred by this Code on an officer in charge of a
police station except the power to arrest without
warrant."
A bare reading of the above Section would got o show
that, in the case of the accused, who are within his
territorial jurisdiction, the Magistrate, may if he things fit,
postpone the issuance of process against the accused and
either inquire into the case himself or direct an investigation
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
to be made by a Police Officer or by such other person as he
thinks fit for the propose of deciding whether or not there is
sufficient ground for proceeding.
However, where the accused is/are residing at a place
beyond the area in which he exercises his jurisdiction, the
Magistrate shall postpone the issuance of process against
those accused and proceed to either enquire into the case
himself or direct an investigation to be made by a Police
Officer or by such other person as he thinks fit for the
purpose of deciding whether or not there is sufficient
ground for proceeding further against the accused persons.
15. Learned counsel for accused No.1 and accused
No.2, while bringing to the notice of the Court the
description of the residence of accused No.1 and accused
No.2 in the cause title in Criminal Revision Petition
No.763/2011, submitted that even according to the
complainant, accused No.1 and accused No.2 were residing
not within the territorial jurisdiction of the Trial Court,
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
inasmuch as, among them, accused No.2 is a resident of
the United States of America, as such, the Trial Court ought
to have conducted an appropriate inquiry before proceeding
to issue summons upon accused No.1 and accused No.2,
more particularly, accused No.2.
According to learned counsel for accused No.1 and
accused No.2, the Trial Court ought not to have ordered for
registration of a criminal case against accused No.1 and
accused No.2 and ordered for issuance of summons until it
had inquired into the matter by itself or referred the matter
for investigation.
It was also further the argument of the learned
counsel for the accused No.1 and accused No.2 that, since
the complainant had chosen to prefer a private complaint
under Section 200 of the Cr.P.C., than a complaint before
the Police under Sections 155 and 156 of the Cr.P.C., the
learned Magistrate should have expected the production of
corroborate evidence, including the documentary evidence,
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
if any, to get convinced herself for a prima facie case in the
complaint against the accused persons, more particularly,
accused No.2.
In his support, he relied upon the following judgments
of the Hon'ble Apex Court:
[a] In the case of PEPSI FOODS LTD. AND ANOTHER
Vs. SPECIAL JUDICIAL MAGISTRATE AND OTHERS reported
in (1998) 5 Supreme Court Cases 749, at paragraph 28 of
its judgment, the Hon'ble Apex Court was pleased to
observe as below:
"28. Summoning of an accused in a criminal
case is a serious matter. Criminal law cannot be set
into motion as a matter of course. It is not that the
complainant has to bring only two witnesses to
support his allegations in the complaint to have the
criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that
he has applied his mind to the facts of the case and
the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home to
the accused. It is not that the Magistrate is a silent
spectator at the time of recording of preliminary
evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence
brought on record and may even himself put
questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused."
The above principle laid down by the Hon'ble Apex
Court would go to show that, the Magistrate should carefully
scrutinize the evidence brought on record to satisfy himself
that there is a prima facie case to proceed with and in
summoning the accused. In the said process the Magistrate
can even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness of the
allegations. Thus, it is only after the Magistrate satisfies
himself about the prima facie truthfulness in the allegations
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
made against the accused, he can proceed to issue
summons against them.
[b] In the case of NATIONAL BANK OF OMAN Vs.
BARAKARA ABDUL AZIZ AND ANOTHER reported in (2013)
2 Supreme Court Cases 488, in paragraph 9 of its
judgment, the Hon'ble Apex Court was pleased to observe
as below:
9. The duty of a Magistrate receiving a
complaint is set out in section 202 CrPC and there is
an obligation on the Magistrate to find out if there is
any matter which calls for investigation by a criminal
court. The scope of enquiry under this section is
restricted only to find out the truth or otherwise of
the allegations made in the complaint in order to
determine whether process has to be issued or not.
Investigation under Section 202 CrPC is different
from the investigation contemplated in Section 156
as it is only for holding the Magistrate to decide
whether or not there is sufficient ground for him to
proceed further. The scope of enquiry under Section
202 CrPC is, therefore, limited to the ascertainment
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
of truth or falsehood of the allegations made in the
complaint:
(i) on the materials placed by the
complainant before the court;
(ii) for the limited purpose of
finding out whether a prima facie case for
issue of process has been made out; and
(iii) for deciding the question purely
from the point of view of the complainant
without at all adverting to any defence that
the accused may have."
[c] In the case of K.S. JOSEPH Vs. PHILIPS CARBON
BLACK LIMITED AND ANOTHER reported in (2016) 11
Supreme Court Cases 105, while analysing the purpose of
postponing the issuance of process by the Magistrate under
Section 202 of the Cr.P.C., the Hon'ble Apex Court was
pleased to hold that, the purpose of postponing of issuance
of process by the Magistrate is to avoid unnecessary
harassment to the proposed accused.
[d] In the case of ABHIJIT PAWAR Vs. HEMANT
MADHUKAR NIMBALKAR AND ANOTHER reported in (2017)
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
3 Supreme Court Cases 528, the Hon'ble Apex Court had
an occasion to re-visit Section 202 of the Cr.P.C. and
analyse as to, for what purpose the said Section was
brought into. In the said process, the Hon'ble Apex Court in
paragraph 23 of its judgment was pleased to observe as
follows:
"23. Admitted position in law is that in those
cases where the accused is residing at a place
beyond the area in which the Magistrate exercises
his jurisdiction, it is mandatory on the part of the
Magistrate to conduct an enquiry or investigation
before issuing the process. Section 202 CrPC was
amended in the year 2005 by the Code of Criminal
procedure (amendment) Act, 2005, with effect from
22-6-2006 by adding the words "and shall, in a case
where the accused is residing at a place beyond the
area in which he exercise his jurisdiction". There is a
vital purpose or objective behind this amendment,
namely, to ward off false complaints against such
persons residing at a far-off places in order to save
them from unnecessary harassment. Thus, the
amended provision casts an obligation on the
Magistrate to conduct enquiry or direct investigation
before issuing the process, so that false complaints
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
are filtered and rejected. The aforesaid purpose is
specifically mentioned in the note appended to the
bill proposing the said amendment."
[e] In the case of BIRLA CORPORATION LIMITED
Vs. ADVENTZ INVESTMENTS AND HOLDINGS LIMITED AND
OTHERS reported in (2019) 16 Supreme Court Cases 610,
the Hon'ble Apex Court once again had an occasion to
anlayse the provisions of Sections 200 to 204 of the Cr.P.C.
including the amendment of the year 2005. It was pleased
to observe that, the object of amendment to Section 202 of
the Cr.P.C. was to ensure that the persons residing at far-
off places are not harassed by filing false complaints,
making it obligatory for the Magistrate to enquire. Use of
the expression "shall" makes it mandatory to have an
inquiry or investigation, as the case may be. In such cases,
the intention of the Legislature is aimed to prevent the
innocent persons from harassment by unscrupulous
persons from false complaints.
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
In the process, the Hon'ble Apex Court, considering
several of its previous judgments including its judgments in
the case of NATIONAL BANK OF OMAN Vs. BARAKARA
ABDUL AZIZ AND ANOTHER (supra) and PEPSI FOODS
LTD. AND ANOTHER VS. SPECIAL JUDICIAL MAGISTRATE
AND OTHERS (supra), was pleased to observe that, to be
summoned or to appear before the criminal court as an
accused is a serious matter affecting one's dignity and
reputation in the society. Thus, the criminal case against
the person cannot be set into motion as a matter of course.
The order of the Magistrate summoning the accused must
reflect application of his mind to the facts of case and the
law applicable thereto. There must be sufficient indications
to show that, the Magistrate has applied his mind and that
he is satisfied that the allegations in the complaint
constitute an offence. At this stage, for issuance of process
to the accused, the Magistrate is not required to record the
detailed orders, however, he must be prima facie satisfied
that there are sufficient grounds for proceeding against the
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
accused based on the allegations made in the complaint
lodged with evidence led in support of the same.
16. The learned Amicus Curiae for the complainant
though fairly conceded that, for an accused who is not a
resident within the jurisdiction of the Magistrate who takes
the cognizance of the offence and orders for issuance of
summons, there should be an inquiry before ordering for
such issuance of summons, however, submitted that, in the
case on hand, the learned Magistrate has applied her mind
by recording the evidence of CW-1 to CW-4. In the said
process, the learned Magistrate is required to consider only
the allegations made in the complaint or the evidence led in
support of the same and nothing more.
In support of her above argument, she relied upon a
judgment of the Hon'ble Apex Court in the case of
NAGAWWA Vs. VEERANNA SHIVALINGAPPA KONJALGI
AND ORS. Reported in MANU/SC/0173/1976 = (1976) 3
Supreme Court Cases 736, wherein, in paragraph 2 of its
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
judgment, the Hon'ble Apex Court was pleased to observe
as below:
2. xxx xxx xxx xxx xxx xxx xxx
It is well settled by a long catena of decisions of this
Court that at the stage of issuing process the
Magistrate is mainly concerned with the allegations
made in the complaint or the evidence led in support
of the same and he is only to be prima facie satisfied
whether there are sufficient grounds for proceeding
against the accused. It is not the province of the
Magistrate to enter into a detailed discussion of the
merits or demerits of the case nor can the High Court
go into this matter in its revisional jurisdiction which
is a very limited one."
Learned Amicus Curiae for the complainant also
submitted that in the case on hand, the Magistrate has held
an enquiry wherein he examined CW-1 to CW-4 and
thereafter has proceeded to issue summons.
In her support, she relied upon a judgment of the
Hon'ble Apex Court in the case of VIJAY DHANUKA AND
ORS. Vs. NAJIMA MAMTAJ AND ORS. reported in
MANU/SC/0251/2014 = (2014) 14 Supreme Court Cases
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
638 wherein the Hon'ble Apex Court in para-10 of its
judgment was pleased to observe as below:
"10. Under Section 200 of the code, on
presentation of the complaint by an individual, other
than public servant in certain contingency, the
Magistrate is required to examine the complainant on
solemn affirmation and the witnesses present, if any.
Thereafter, on perusal of the allegations made in the
complaint, the statement of the complainant on
solemn affirmation and the witnesses examined, if
any, various options are available to him. If he is
satisfied that the allegations made in the complaint
and statements of the complainant on oath and the
witnesses constitute an offence, he may direct for
issuance of process as contemplated under Section
204 of the Code. In case, the Magistrate is of the
opinion that there is no sufficient ground for
proceeding, the option available to him is to dismiss
the complaint under Section 203 of the code. If on
examination of the allegations made in the complaint
and the statement of the complainant on solemn
affirmation and the witnesses examined, the
Magistrate is of the opinion that there is no sufficient
ground for proceeding, the option available to him is
to postpone the issue of process and either inquire
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
the case himself or direct the investigation to be
made by a police officer or by any other person as he
thinks fit. ......"
In paragraph 14 of the very same judgment, the
Hon'ble Apex Court was pleased to observe as follows:
"14... every inquiry other than a trial
conducted by the Magistrate or Court is an inquiry.
No specific mode or manner of inquiry is provided
under Section 202 of the code. In the inquiry
envisaged under Section 202 of the code, the
witnesses are examined whereas under Section 200
of the code, examination of the complainant only is
necessary with the option of examining the witnesses
present, if any. This exercise by the Magistrate, for
the purpose of deciding whether or not there is
sufficient ground for proceeding against the accused,
is nothing but an inquiry envisaged under Section
202 of the code. In the present case, as we have
stated earlier, the Magistrate has examined the
complainant on solemn affirmation and the two
witnesses and only thereafter he had directed for
issuance of process."
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
17. It is keeping the above principle laid down by the
Hon'ble Apex Court in its various judgments, the present
case is required to be analysed.
18. A careful and thorough reading of the complaint
would go to show that, though the complaint runs into
eighteen pages, but the allegation against accused No.2 -
Smt. Aarthi Rao hardly finds its place at three or four
places only.
In para-13 of the complaint, the complainant has
stated the act of the accused No.1 in forcibly putting her
down on the floor and sitting on her and attempting to
disrobe her, was a pre-plan by accused No.1 and accused
No.2, as revealed to her by accused No.1.
Further, in para.17 of her complaint, while making the
allegation against accused No.3, the complainant has stated
that, the said accused No.3 informed her that few others
were involved in that issue and named them as the first and
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
second accused and a prominent Christian Missionary and
another person whose identity was kept secret.
The complainant, in para-30 of her complaint has
stated that, from the course of their conduct, the accused
No.1 to 3 have entered into a criminal conspiracy to create
a morphed video and to blackmail and extract monies from
the complainant and others.
Except the above allegations, there are no other
allegations made against accused No.2 - Smt. Aarthi Rao, in
the entire complaint. Nowhere in the complaint, the
complainant has explained as to what was that conspiracy
said to have taken place among the accused with the
involvement of accused No.2 - Smt. Aarthi Rao, more
particularly, the specific role of accused No.2 - Smt. Aarthi
Rao in the alleged conspiracy. Further, no where the
complainant says that, the complainant had any
independent source of knowledge or independent
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
information about the alleged conspiracy of accused No.2 -
Smt. Aarthi Rao in the alleged commission of the crime.
On the contrary, even according to the complaint, the
entire information about the alleged conspiracy involving
the accused No.2 is only based upon the information said to
have been either given to her (complainant) or revealed to
her either by accused No.1 or by accused No.3.
In addition to the above, no where the complainant
has whispered as to the nature of conspiracy said to have
been committed by accused No.2 -Smt. Aarthi Rao and
about the alleged active role, if any, of accused No.2, in the
said conspiracy.
The sworn statement of complainant, as CW-1,
recorded by the Magistrate in the Trial Court is nothing but
a summary of her complaint under Section 200 of the
Cr.P.C. Even in her sworn statement, about the alleged
role of accused No.2 - Smt. Aarthi Rao, no specific
averment is made by the complainant. The entire
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
allegations made in her sworn statement are revolving
around only accused No.1 and accused No.3 and she has
not stated the alleged involvement of accused No.2 and the
role of accused No.2 in the alleged commission of the crime.
Similarly, the sworn statement of the remaining three
witnesses i.e. Smt. Manithya Bakthikananda, Sri. Nithya
Brahma Swaroopananda, and Sri. Nithya Pranananda before
the Magistrate in the Trial Court also do not allege any
specific averment, much less, the overt act against accused
No.2 - Smt. Aarthi Rao. All these three witnesses, though
have stated that, the accused No.2 was known to them and
she was a devotee of their Ashrama, but simultaneously, they
have stated that she was a resident of the United States of
America. Their statements are only about the incident of the
date 13-02-2010, wherein the accused No.1 was said to have
attempted to commit rape on the complainant and about
the complainant giving her gold jewellery to pledge the
same to pay the monies to the accused No.3 at his
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
demand on the date 24-02-2010 through CW-4 - Nithya
Pranananda. However, none of those three witnesses, any
where in their statements, have whispered as to what was
the role of accused No.2 in the alleged criminal acts against
the complainant. These aspects clearly go to show that, the
Magistrate, before ordering for the registration of the
criminal case against the accused and ordering for issuance
of summons had not just recorded the sworn statement of
the complainant, but also recorded the sworn statements of
three more witnesses and thus has held an inquiry by
herself and only thereafter, she has proceeded to order for
issuance of summons. As such, the argument of the
learned counsel for the accused No.1 and accused No.2
that, there is non-compliance of mandate of Section 202 of
the Cr.P.C., is not acceptable.
However, in the said process, the Magistrate did not
notice about the alleged absence of any specific allegations
against accused No.2 - Smt. Aarthi Rao and did not notice
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
the absence of the materials enabling her to order for
issuance of notice against accused No.2 - Smt. Aarthi Rao
also along with other two accused persons.
In the said process, the learned Magistrate did not
even notice that, accused No.2 -Smt. Aarthi Rao was a
resident of United States of America. She did not even
give her thought as to, how come accused No.2, being in
America, who was said to be occasionally visiting the
Ashrama at Ramanagara, can hatch a conspiracy with
accused No.1 and accused No.3. Had there been
mentioning of any one instance of either anybody seeing
accused No.2 hatching the conspiracy with the other
accused persons or any correspondence between the
accused persons including accused No.2, through which a
conspiracy can be inferred, or at least any exchange of
messages/instructions or thoughts or ideas among the
accused persons including the accused No.2, by which an
alleged conspiracy by the accused No.2 with the remaining
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
accused can be inferred, the act of the Trial Court in
ordering issuance of the summons even for accused No.2
would have been justified.
Furthermore, admittedly, the said Magistrate, before
ordering issuance of summons, did not pose any questions
to the complainant or CW-2 or CW-3 or CW-4, while
recording their sworn statements about any of the
information about any details of the alleged conspiracy by
accused No.2, on the other hand, merely because a word
conspiracy was used at one place in the complaint and
accused No.2 was also arraigned as one among the accused
persons, the Magistrate appears to have jumped to a
conclusion holding that, there was a prima facie material to
issue summons even as against accused No.2 also and
proceeded to order accordingly.
The said act of the Magistrate would be nothing but
not considering the seriousness of the issuance of
summons to the accused in a criminal case and nothing but
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
non-application of her mind with respect to ordering
summons as against accused No.2.
19. Needless to say that, when the allegations made
in the complaint or the statements of the witnesses
recorded in support of the same are taken at their face
value, there is absolutely no case made out against the
accused No.2 or that the complaint does not disclose the
essential ingredients of the offences which are alleged
against the accused No.2. The continuation of the case
against such an accused by issuing summons to the said
accused person and compelling him/her to face the trial
would be nothing but an abuse of the process of the Court,
which would not secure the ends of justice. As such, the
very complaint is bereft of any specific allegations as
against accused No.2 to show that prima facie, there is a
case to proceed against the accused No.2. Thus the
inherent power of the Court under Section 482 of the
Cr.P.C. requires to be used in favour of the petitioner in
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Criminal Petition No.6009/2017 and the criminal
proceedings initiated against her (accused No.2 -
Smt. Aarthi Rao) by the complainant deserves to be
quashed.
20. The complainant, in her complaint as well in her
sworn statement as CW-1, has made several specific
allegations against accused No.1. The complainant herself
has claimed that, she is a victim at the hands of accused
No.1 and physically she had come in contact with accused
No.1 at his instance, where she was attempted to be
sexually abused by him. The complainant, both in her
complaint and in her evidence as CW-1, not just stated that
on the date 13-02-2010, the accused No.1 shown in his
laptop certain morphed obscene pictures to her, but also
held the complainant by her hands and hugged her, and
even before she could react she was forcibly put down on
the floor by him and he (accused No.1) sat on her. The
complainant has further stated that though she tried her
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
best to prevent him from proceeding further and resisted
and screamed and yelled and also begged, still, the accused
No.1 attempted to disrobe her stating that he would at any
cost have sexual intercourse with her. However, due to
someone knocking the door from outside, the accused
No.1 became panic and let loose his grip on the
complainant, at which time, the complainant pushed him
aside and ran to the corner of the room. The complainant
has also stated that, at the knock of the door from outside
and banging louder from outside, the accused closed his
laptop and putting the complainant into threat that he
would release her pictures to media, opened the door and
vanished immediately. The complainant has also explained
in her complaint itself as to why delay of few months was
caused in she lodging the complaint in December 2010,
though the incident is said to have taken place in the month
of February 2010.
21. The sworn statements of CW-2, CW-3, and CW-4
also supports the contention of the complainant regarding
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
the allegations made by her against accused No.1 including
the alleged attempt to rape.
22. CW-2 - Smt. Manithya Bakthikananda has alleged
against the accused No.1 and stated that, she had warned
the complainant to keep distance from accused No.1 and
had made her to know about the accused No.1 taking the
photographs from his cell phone and morphing the same.
She specifically stated that the accused No.1 was in the
habit of taking the photographs of the brahmacharinis at
the Ashrama through his Cell phone and used to morph the
same with the half nude photographs of some other persons
and celebrities by pasting the face of brahmacharinis.
23. CW-3 - Sri. Nithya Brahmaswaroopananda has
given a direct account of the alleged incident dated
13-02-2010, by stating that, on the said date, it was him
who after noticing the complainant's screaming and hearing
the screaming, rushed there and tried to push the door and
noticed that the door was locked from inside. In between
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
the gap of the door, he saw a woman lying on the floor and
a man lying on her and trying to rape her and she was
resisting. He further stated that the man inside the room
was accused No.1. This witness has given a detailed
account as to what all he saw directly through the gap in
the door and how he got the door opened after knocking
the door. Thus, he has given a clear and detailed account
of the alleged attempt of rape by accused No.1 against the
complainant. He specifically stated that he saw that, a
woman was lying on the floor and accused No.1 was lying
on her and trying to rape her, though she was resisting.
This aspect, the learned Magistrate has failed to notice.
24. Though there were sufficient material to proceed
against the accused No.1 but the same were not just
confined to the offences punishable under Sections 354,
506, 384 and 509 of the IPC, but there was also material to
attract offence punishable under Section 376 read with
Section 511 of the IPC also, as such, the argument of the
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
learned counsel for the accused No.1 that, there were no
sufficient material to proceed against accused No.1, as
such, his petition in Criminal Petition No.6010/2017
deserves to be allowed, is not acceptable, on the contrary,
the argument of the learned Amicus Curiae for the
complainant that, there were sufficient material prima facie
to take cognizance and issue summons to the accused No.1
even for the offence punishable under Section 376 read with
Section 511 of the IPC, is acceptable.
25. The Trial Court has also not taken cognizance of
the offence under Section 120B of the IPC. No doubt, as
observed above, there was no material to show the
involvement of accused No.2 in the alleged conspiracy,
however, it does not mean that there was no conspiracy at
all between accused No.1 and accused No.3. The alleged
conspiracy between the accused No.1 and accused No.3
has been stated by the complainant in her complaint itself.
As observed above, on more than one occasion, she has
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
come in physical presence of accused No.1 and accused
No.3, when also, she has gathered the knowledge and
information that there was a conspiracy between accused
No.1 and accused No.3.
The said act of alleged blackmailing by accused No.3
for a sum of `20.00 Crores has been specifically stated by
the complainant in her complaint itself with the date and
the manner in which the extortion was practiced upon her
by accused No.3. She has stated that it was an act of
accused No.1 and accused No.3 together.
26. More over, CW-4 - Sri. Nithya Pranananda, in his
sworn statement, has also stated that, while he was
speaking to the complainant over phone, the accused No.3
took over the phone and demanded `20.00 Crores from the
complainant to restrain him and other accused from
releasing the photographs to the media. He also stated
that, further the accused No.3 threatened her (complainant)
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
that if she does not pay the money, he will release the
photographs to the media and destroy her.
The witness further stated that, to enable the
complainant to pay the advance amount of a sum of
`25,00,000/- to accused No.3, as demanded by him, he
(CW-4) pledged the jewellery given to him by the
complainant with a Jeweller and collected `5,00,000/- and
paid the same to the accused No.3 on 28-02-2010, as
requested by the complainant.
Thus, throughout, the case of the complainant was
that, the accused No.1 was morphing the pictures of the
brahmacharinis and lady devotees in the Ashrama with the
other semi-nude photographs of the celebrities and was
threatening to expose those photographs or publish those
photographs to media. The same is the evidence of CW-2
also. According to the complainant and CW-4, accused No.3
was made use of in the said process of extortion. Thus,
unless the morphed photographs which were said to be
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
created by the accused No.1 are given to accused No.3, he
probably cannot publish them or release them, as such,
when accused No.3 is accused of extortion, threatening the
complainant that he would release the morphed
photographs to media, the same is possible, provided there
is conspiracy between accused No.1 and accused No.3.
27. This aspect, the learned Magistrate did not take
into consideration while passing her cryptic order, directing
the registration of the PCR as a criminal case and ordering
for issuance of summons. The said order was confirmed by
the learned Sessions Judge's Court in Criminal Revision
Petition No.39/2015 and Criminal Revision Petition
No.40/2015. Since now it is clear that, the criminal case
has to be registered against the accused No.1 even for the
offence punishable under Section 376 read with Section 511
of the IPC also and that both accused No.1 and accused
No.3 are to be proceeded with under Section 120B read
with Section 34 of the IPC also, the impugned order of the
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Trial Court warrants an interference at the hands of this
Court.
On the other hand, the criminal petition filed by the
accused No.1 in Criminal Petition No.6010/2017 deserves to
be rejected as devoid of merit.
28. Lastly, though the learned counsel for the
accused No.1 and accused No.2 contended that, unless the
complainant amended her prayer in the Criminal Revision
Petition No.763/2011, seeking quashing of the order dated
25-05-2017, passed by the Sessions Judge's Court in
Criminal Revision petition No.39/2015 and Criminal Revision
Petition No.40/2015, the present Criminal Revision Petition
No.763/2011 is not maintainable, however, the same is too
technical an issue and would not serve the purpose of
justice.
Admittedly, aggrieved by the order dated 04-06-2011,
the complainant directly approached this Court through
Criminal Revision Petition No.763/2011, however, accused
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
No.1 and accused No.2 approached the Sessions Judge's
Court through Criminal Revision Petition No.40/2015 and
Criminal Revision Petition No.39/2015 respectively. The
Sessions Judge's Court vide its order dated 25-05-2017,
dismissed both the criminal revision petitions, however, in
its operative portion, it did not say expressly that, summons
may be issued against the petitioners before it (accused
No.1 and accused No.2) only for the offences punishable
under Sections 354, 506, 384 and 509 of the IPC. Merely
because in its observation, the Sessions Judge's Court at
one place has stated that the learned Magistrate was
satisfied that the allegation in the complaint did not
constitute an offence when considered along with the
statements recorded, for the offences punishable under
Sections 376 and 120B of the IPC, by that itself, it cannot
be inferred that, the Sessions Judge's Court has confirmed
that there was no case made out against the accused No.1
for the offence under Section 376 r/w Sec.511 of the IPC and
against the accused No.1 and accused No.3 for the offence
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
punishable under Section 120B of the IPC. As such, since
the finding of the truth is of paramount interest and more
importantly, the complainant, aggrieved by the order of the
Trial Court dated 04-06-2011 had already approached this
Court through the present Criminal Revision Petition
No.763/2011 and also when admittedly, she was only a
respondent in Criminal Revision Petition No.39/2015 and
Criminal Revision Petition No.40/2015 before the Sessions
Judge's Court, the complainant not seeking amendment of
the prayer in the present Criminal Revision Petition
No.763/2011 would not be fatal to her case. For these
reasons, I do not find any error in the orders passed by the
Trial Court and the Sessions Judge's Court, ordering
issuance of summons to accused No.1. However, the Trial
Court ought to have taken cognizance and registered the
case against accused No.1 for the offence punishable under
Section 376 read with Section 511 of the IPC, and as
against both accused No.1 and accused No.3 for the
offence punishable under Section 120B of the IPC also. In
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
that regard, both the Trial Court and the Sessions Judge's
Court have erred in passing the impugned orders.
29. Further, the Trial Court and Sessions Judge's
Court have erred by ignoring the absence of prima facie
material to proceed against accused No.2 - Smt. Aarthi Rao
and in ordering issuance of summons against her in the
criminal case. It is to that extent, interference in the
impugned orders is warranted by this Court.
Accordingly, I proceed to pass the following:
ORDER
[i] The Criminal Revision Petition
No.763/2011 is allowed-in-part;
The order dated 04-06-2011 passed in
C.C.No.599/2011 (PCR No.183/2010) by the
learned Principal Civil Judge (Jr.Dvn.) and
J.M.F.C. Ramanagara, insofar as it relates to the
non-registration of a case against accused No.1
for the offence punishable under Section 376
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
read with section 511 of the IPC and against
both accused No.1 and accused No.3 for the
offence punishable under Section 120B read
with Section 34 of the Indian Penal Code, 1860
stands set aside.
Thus, the said impugned order dated
04-06-2011 of the Trial Court is modified,
ordering the registration of case against accused
No.1 - Sri. K. Lenin, Who was formerly known
and called as Nithya Dharmananda, for the
offences punishable under Sections 354, 506,
384, 509, 376 read with Section 511 and Section
120 read with section 34 of the Indian Penal
Code, 1860.
Further, the registration of the case as
against Accused No.3 - Sri. M. Sridhar, is also
modified and it shall be for the offences
punishable under Sections 354, 506, 384, 509
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
and Section 120B read with Section 34 of the
Indian Penal Code, 1860.
[ii] The Criminal Petition No.6009/2017 is
allowed;
The common order dated 25-05-2017
passed in Criminal Revision petition No.39/2015
by the Court of the Principal District and
Sessions Judge, Ramanagara, stands set aside
as against accused No.2 - Smt. Aarthi Rao;
Consequently, the order dated 31-12-2010
taking cognizance and the order dated
04-06-2011 for issuance of summons in
C.C.No.599./2011 to accused No.2 therein i.e.
Smt. Aarthi Rao, stands quashed.
[iii] The Criminal Petition No.6010/2017
stands dismissed as devoid of merits.
The Court, while acknowledging the services rendered
by Smt. K.M. Archana, the learned Amicus Curiae for the
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
revision petitioner(complainant) in Criminal Revision Petition
No.763/2011 and for the sole respondent in Criminal
petition No.6009/2017 and Criminal Petition No.6010/2017
and also the services rendered by Sri. S. Javeed, learned
Amicus Curiae for the respondent No.3 (accused No.3) in
Criminal Revision Petition No.763/2011, recommends an
honorarium of a sum of not less than `10,000/- to the
learned Amicus Curiae - Smt. K.M. Archana and a sum of
not less than `4,000/- to the learned Amicus Curiae -
Sri. S. Javeed, payable by the Registry.
Considering the fact that the private complaint is of
the year 2010, as such, twelve years' old matter, still, the
said case has not been proceeded further, early disposal of
the present criminal case including its trial by the
competent Court at the earliest, but not later than six
months from today is highly appreciated.
Crl.R.P.No.763/2011 c/w.
Criminal Petition No.6009/2017 &
Criminal Petition No.6010/2017
Registry to transmit a copy of this order to the Trial
Court along with its records and also a copy of this order to
the Sessions Judge's Court, immediately.
Sd/-
JUDGE
BMV*
