Karnataka High Court
Sri.Sangamesh @ Sanganagouda S/O ... vs The State Of Karnataka on 2 July, 2024
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CRL.P No. 102195 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 2ND DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL PETITION NO. 102195 OF 2019 (482)
BETWEEN:
1. SRI. SANGAMESH @ SANGANAGOUDA
S/O. IRANNAGOUDA PATIL,
AGE: 42 YEARS, OCC: EMPLOYED,
R/O: #69, VIVEKANAND NAGAR,
AIRPORT ROAD, HUBBALLI,
DIST: DHARWAD-580030.
2. RAJU @ BHARAMGOUDA BALAGOUDA PATIL,
AGE: 47 YEARS, OCC: BUSINESS,
R/O: PLOT NO.143, SECTOR NO.2,
SHIVABASAVANAGAR,
DIST: BELAGAVI-590010.
3. SHASHIDHAR S/O. MALLAPPA
BHAIRANATTI @ BAIRANATTI,
AGE: 64 YEARS, OCC: RETIRED,
Digitally signed R/O: PLOT NO.1852,
by MANJANNA "SAMRUDHI", RAMTEERTH,
E DIST: BELAGAVI-590016.
Location: HIGH
COURT OF 4. NAGRAJ
KARNATAKA
S/O. IRAPPA BHAIRANATTI @ BAIRANATI
AGE: 40 YEARS, OCC: BUSIENSS,
R/O: PRIORITY ROST MALLOW,
CTS NO.9596, FLAT NO.201, I FLOOR,
BESIDE SYNDICATE BANK,
MAHANTESH NAGAR,
DIST: BELAGAVI-590016.
5. MURAGESH
S/O. GAVISIDDHAPPA JAVALI
AGE: 48 YEARS, OCC: BUSINESS,
R/O: AZADNAGAR PARK,
CHAMRAJPETE,
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CRL.P No. 102195 of 2019
MYSORE ROAD,
BENGALURU-560026.
...PETITIONERS
(BY SRI. K. L. PATIL, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH OLD HUBBALLI POLICE STATION,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
2. DEEPAK S/O. VEERAPPA TOTAD,
AGE: 35 YEARS, OCC: BUSINESS,
GOKUL ROAD, NEHERU NAGAR,
MAHALAXMI LAYOUT, H.NO.80,
HUBBALLI, DIST: DHARWAD-580025.
...RESPONDENTS
(BY SRI. ABHISHEK MALIPATIL, HCGP FOR R1;
SRI. A. C. CHAKALABBI, ADV. FOR R2
THIS CRIMINAL PETITION IS FILED U/S. 482 OF CR.P.C.
SEEKING TO QUASH THE ORDER DATED 29/07/2019 PASSED BY THE
COURT OF J.M.F.C-II HUBBALLI, IN C.C NO.731/2019 INSOFAR AS
PRESENT PETITIONERS ARE CONCERNED THEREBY REJECTING B
REPORT AND DIRECTING THE OFFICE TO REGISTER CRIMINAL CASE
AGAINST THE PETITIONERS FOR OFFENCES PUNISHABLE U/S. 143,
147, 323, 448, 363, 504, 506 R/W SECTION 149 OF IPC, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 102195 of 2019
ORDER
Heard learned counsel for the petitioners, learned High
Court Government Pleader for respondent No.1-State and
learned counsel for respondent No.2-de-facto complainant.
2. The petitioners have filed this petition under
Section 482 of the Code of Criminal Procedure, 1973 (for
short 'the Cr.P.C.'), praying to quash the order dated
29.07.2019 passed by the Court of JMFC-II Hubballi, in
C.C.No.731/2019, wherein the trial Court rejected the 'B'
report and took cognizance for the offences punishable
under Sections 143, 147, 323, 448, 363, 504 and 506
read with Section 149 of the Indian Penal Code (for short,
'the IPC').
3. The learned counsel for the petitioners submits
that the trial Court before rejecting the 'B' report, recorded
the sworn statement which is against the provisions of
Code of Criminal Procedure and the sworn statement
recorded through the counsel for complainant. Infact,
under Section 200 of the Cr.P.C whether it is permissible
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for the advocate of the complainant to actively participate
and assist the complainant by conducting a virtual
examination-in-chief while his statement and that of his
witnesses is being recorded by the Magistrate for deciding
the question of issuing process.
4. Learned counsel for the petitioners submits that
the issue in the lis stands covered by the judgment
rendered by the Division Bench of this Court in the case of
Naganagouda Veeranagouda Patil and Another Vs.
Malatesh H. Kulkarni and Others1, wherein the identical
issue has been raised and have been answered in favour
of the petitioners therein. The Division Bench of this Court
at para 7 to 10 has held as follows:
"7. Historically, it is necessary to point out that under
the old Code of Criminal Procedure, the formal
verification process was non-existent and the complaint
was presented to the learned Magistrate and effectively, it
was on the basis of the submissions made in the Court
room for which there was no record, that the process was
issued. The Law Commission in its recommendations had
pointed out that in a large number of cases though the
complaint confused itself to the facts and the submissions,
that statements used to be made in the Court room which
went far beyond whatever was stated in the complaint only
ILR 1997 KAR 2091
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for purposes of snatching the order of process and, at a
later point of time it was realised that the Court had been
misled. The recommendation to Parliament was therefore
that some inbuilt mechanism be provided for which would
ensure a due scrutiny prior to the issue of process and that
this procedure should take care of the all important aspect
of guarding against the Court being misled. It is for this
purpose that Section 200, Cr.P.C. when it was recast,
incorporated the requirement that the Magistrate shall
examine the complainant and witnesses himself and record
the substance of such examination which would be proof of
the fact that such a procedure had been followed and if
satisfied from the material produced before the Court that a
prima facie case has been made out, should only then issue
process. One of the views expounded in the decisions
referred to by us is to the effect that the obligation to carry
out this exercise which is cast on the learned Magistrate
cannot be shifted or transferred to the complainant's
Advocate because in that event, the Court would be
abdicating its responsibility. It is in this context that we
uphold the submission canvassed on behalf of the
petitioners that where the section clearly prescribes that
the examination of the complainant and witnesses shall be
done by the Court, that it would be a breach of the
provisions of the section if this duty were to be carried out
by the complainant's learned Advocate. Such a step is
contra-indicated for an additional reason in so far as it
would bodily reproduce the complaint in the examination-
in-chief and thereby contribute to the process of misleading
the Court in those of the cases where a deliberate attempt
at window dressing has been undertaken. It would run
contra to the legislative intent which is directed towards
affording the Court a free hand in scrutinising and verifying
the genuineness and the correctness of the complaint and
would therefore have no legal sanction. More importantly, it
would result in a situation of grossly over-burdening the
forum because the section does not provide for an
elaborate examination-in-chief which would be extremely
time consuming and burden some to the Court which is
required to record all that material particularly in many
instances where the evidence is hand-written. We have
come across situations in which the so-called examination-
in-chief has run into something like 25 pages and a mini
trial has virtually taken place at the stage of issue of
process. This was never the legislative intent when Section
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200, Cr.P.C. was recasted, the object being to simplify the
procedure which is why, the trial Magistrate is only required
to record the substance of the examination. At this stage,
we need to lay down very clearly and unambiguously, that
a serious responsibility is cast on the Judicial Officer in this
regard whereby it is essential that the learned Magistrate
must scrupulously ensure that the statements of the
complainant and the witnesses are briefly but very correctly
and concisely summarised. The learned S.P.P. did bring it
to our notice that having regard to what often happens
before the trial Courts, prejudice should not result to the
complainant because of the hurried procedure followed in
rushing the party and the witnesses through their
statements and critically recording hardly anything and
thereby leaving out the essential requirements. Also, what
needs to be pointed out is that since the complainant's
Advocate is precluded from participating in this procedure
that it should not result in failure of justice in so far as the
Court will have to gather from the complaint and whatever
other material is produced as to what is the nature of the
dispute that has been referred to the Court and see to it
that the complainant and the witnesses have an adequate
and fair opportunity of briefly setting out that they desire to
place before the Court. There would be, in this regard,
situations in which the Court would have to put a few
questions which may be essential for eliciting the complete
facts and which may also be essential for purposes of
reading between the lines. This briefly is the procedure
which is desirable and which is essential while carrying out
the verification process.
8. The next submission that was canvassed before us
was that as far as the present petitions are concerned,
since the verification has not been done by the Court but on
the other hand, has been in the form of an elaborate
examination-in-chief at the instance of the complainant's
learned Advocate, that the order issuing process will have
to he quashed and that the complaint would have to be
dismissed. We have had occasion in this regard to point out
that in one of the decisions, this view has not been followed
and we have also had occasion to record that not every
breach of procedure would result in rendering the
proceeding void ab initio or for that matter would have the
effect of categorising it as an illegality. Section 465,
Cr.P.C. specifically makes provision for situations in which
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the breach is curable and in our considered view, the
breach in question is most certainly rectifiable. If on facts
and in law the complainant has made out a prima facie case
merely because of an error that has taken place at the
verification stage, it would not justify this Court quashing
the entire proceeding. The correct procedure would be to
set aside the order issuing process because it has
emanated from, something erroneous and to remand the
case back to the trial Court with a direction that the
procedure as prescribed in this judgment be followed, that
a de novo consideration be undertaken on the question of
whether, on the material placed before the Court the
issuance of process is justified and to pass fresh orders.
9. We need to however clarify that this does not mean
that the complainant's learned Advocate is totally precluded
from assisting the Court which could possibly be done by
presenting a synopsis of the complaint to the Court in order
to save some time and to summarise the nature of the real
dispute and furthermore, even though the verification
process is exclusively between the learned Magistrate and
the complainant and witnesses that it would always be open
to the complainant's learned Advocate to once again assist
the Court by making the submissions with regard to the
question of issue of process or otherwise as also on such
finger points as to under which provision or section the
process should be issued.
10. In the aforesaid situation, the reference is
answered in the affirmative in so far as we uphold the
position that Section 200, Cr.P.C. requires that the
verification process shall be conducted by the court and not
by the complainant's learned Advocate. We also reiterate
the position in law that a breach of this procedure would
not necessarily be fatal to the proceeding and that it is
curable. In the view that we have taken, it will be
necessary to formally set aside the order issuing process in
these petitions and to remand the petitions back to the trial
Court with the direction that the verification process be
carried out by the Court and fresh orders be passed
according to law. We need to reiterate in this regard that it
was pointed out in the course of the arguments that this
procedure has been taking an abnormally long period of
time before the trial Courts causing undue burden to the
complainants. The learned Magistrate shall accordingly
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ensure that this procedure is simply, effectively and
expeditiously carried out."
5. Learned High Court Government Pleader would
not dispute the position of law as is observed in the case
referred supra.
6. In view of the facts and circumstances and
above preposition of law, the reference is answered in the
affirmative insofar as the position that Section 200 of
Cr.P.C requires that the verification process shall be
conducted by the Court and not by the complainant's
learned counsel. The position in law that a breach of this
procedure would not necessarily be fatal to the proceeding
and that is curable.
7. In view of the aforesaid proposition, it will be
necessary to formally set-aside the order issuing process
in C.C.No.731/2019 and the matter requires to remand to
the trial Court with the direction that verification process
be carried out by the Court and fresh orders be passed in
accordance with law.
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8. Admittedly, the incident is of the year 2016 and
this procedure of law has been taking abnormally long
period of time before the trial Courts causing undue to the
complainants. The learned Magistrate shall accordingly
ensure that this procedure is simply, effectively and
expeditiously carried out. Accordingly, I pass the
following:
ORDER
(i) The petition is allowed.
(ii) The order dated 29.07.2019 passed by the
JMFC-II Hubballi in C.C.No.731/2019 is set
aside. However, the trial Court may proceed
with the matter in accordance with law as
observed above.
Sd/-
JUDGE
AC/ct-an
