Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Kar) 463

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
SRI. MANJUNATH HEBBAR S/O VASUDEV HEBBAR - Petitioner
Vs.
THE STATE OF KARNATAKA GIRINAGARA POLICE STATION AND CID SPECIAL INVESTIGATING AGENCY BENGALURU THROUGH STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU - Respondent
WRIT PETITION No.56754 OF 2018 (GM-RES)
Decided On : 13-12-2021

Advocates Appeared:
For The Petitioner:SRI C.V.NAGESH, SENIOR ADVOCATE A/W SRI S.RAJASHEKAR, ADVOCATE
For The Respondent:SMT.NAMITHA MAHESH B.G., HCGP, SRI ARAVIND M.NEGLUR, ADVOCATE

Point of Law : Delay in lodging the FIR, final report being filed by an officer who was not in-charge of the Police Station; act of the learned Magistrate in taking cognizance of the offence which bears no application of mind and fact that the complaint itself not linking any event narrated to the offences alleged.

Headnote:
Indian Penal Code, 1860 - Sections 323, 376, 376(2)(f)(i)(n), 498A, 107 and 109 - Hindu Marriage Act - Section 9 – Criminal Procedure Code, 1973 - Section 125, 173(2), 204 and 482 – Offence of Voluntarily causing hurt and Rape - FIR/Charge Sheet - Restitution of conjugal rights - Report of police officer on completion of investigation - Petitioner and 2nd respondent/complainant got married, when 2nd respondent left marital house and started to live away from petitioner - Complainant filed petition under Section 125 of Cr.P.C. seeking maintenance from the hands of petitioner, after which petitioner files a petition under Section 9 of Hindu Marriage Act seeking restitution of conjugal rights, countering which, complainant files a petition in M.C. seeking annulment of marriage with petitioner – Whether there is delay in filing complaint/registration of FIR and said delay would vitiate the entire proceedings - Whether learned Magistrate taking cognizance of offence on basis of a final report filed by policeman who was in fact not an officer in-charge of police station, has vitiated entire proceedings - Whether cognizance taken by learned Magistrate on the final report and issuance of process suffers from non-application of mind and would be contrary to Section 204 of Cr.P.C.
Finding of the Court:
Admittedly, there is no notification issued under Section 2(m) (supra) declaring office of CID to be a police station. Therefore, the officer in-charge in the office of the CID cannot be an officer in-charge of a police station, without at the outset office of CID being declared as a police station – The delay in lodging the complaint and registration of FIR, for offences alleged has undoubtedly vitiated the very initiation of proceedings against petitioner. The first point that has arisen for consideration is answered against the prosecution - It is well settled that at stage of issuing process, Magistrate is mainly concerned with allegations made in complaint or evidence led in support of the same and Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused - Both Sections 107 and 109 of IPC mandate that an accused should abet another accused in commission of a crime as is found in the ingredients of Section 107 or 109 as the case would be – Court view that such allegations cannot enmesh petitioner for continuance of trial, as it would without doubt degenerate into harassment and be an abuse of the process of law, resulting in miscarriage of justice. Therefore, this is a fit case where this Court has to exercise its jurisdiction under Section 482 of the Cr.P.C. and obliterate entire proceedings against the petitioner.
Result : Writ Petition is allowed

ORDER :

The petitioner is before this Court calling in question the proceedings in C.C.No.26533 of 2018 pending before the I Additional Chief Metropolitan Magistrate, Bangalore, as also, the FIR in Crime No.257 of 2015 and charge sheet registered against the petitioner in Charge Sheet No.6 of 2018 dated 07.09.2018 for offences punishable under Sections 323, 376, 376(2)(f)(i)(n), 498A and 109 of the IPC.

2. Shorn of unnecessary details; the facts adumbrated in brief are as follows:-

The petitioner and the 2nd respondent/complainant got married at Sirsi, Uttara Kannada District on 27.05.2009. The claim of the petitioner is that from the date of marriage, the petitioner and the 2nd respondent lived happily till the fateful day i.e., 18.03.2012 when the 2nd respondent left the marital house and started to live away from the petitioner. After the 2nd respondent left the marital house, the complainant caused a legal notice to the petitioner on 04.08.2014 claiming that the petitioner has deserted her and sought maintenance from the hands of the petitioner. The petitioner sent a reply to the legal notice and notwithstanding the same, the complainant filed petition under Section 125 of the Cr.P.C. seeking maintenance from the hands of the petitioner. The petitioner files his objections to the petition filed under Section 125 of Cr.P.C. by the complainant, after which the petitioner files a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights, countering which, the complainant files a petition in M.C.No.25 of 2016 seeking annulment of marriage with the petitioner. On issuance of notice in the petition filed by the complainant seeking divorce in M.C.No.25 of 2016, the petitioner files a civil petition in C.P.No.141 of 2018 seeking transfer of petition filed by the petitioner and during the pendency of consideration of the said petition, the complainant registers a complaint, which becomes an FIR in Crime No.257 of 2015, on 29.08.2015.

3. The complaint is registered against several persons including the pontiff of Ramachandrapura Mutt. The complaint insofar as it pertains to the petitioner and the aftermath of the said complaint, concerns the present petition. The present petition does not or is not in consideration of any of the allegations or proceedings against all the other accused in the FIR in Crime No.257 of 2015.

4. After registration of the crime, the police investigated into the matter and have also filed a final report/charge sheet in C.C.No.26533 of 2018 in Charge Sheet No.6 of 2018. The charge sheet was filed on 07.09.2018 against the petitioner for offences punishable under Sections 323, 376, 376(2)(f)(i)(n), 498A and 109 of the IPC. The learned Magistrate takes cognizance of the matter and issues process on 27.09.2018. Immediately thereafter, the petitioner knocks the doors of this Court by filing the subject writ petition on 18.12.2018. This Court entertaining the petition has granted an interim order of stay of further proceedings in the aforesaid criminal case and the said interim order continues to be in operation as on date.

5. Heard the learned Senior Counsel Sri C.V.Nagesh appearing for Sri S.Rajashekar, learned counsel for the petitioner, Smt. Namitha Mahesh B.G., learned High Court Government Pleader appearing for respondent No.1/State and Sri Aravind M.Neglur, learned counsel appearing for respondent No.2/ complainant.

6. The learned Senior Counsel appearing for the petitioner would vehemently argue and contend that the entire proceedings right from the word go is a rude shock, to known canons of law as every stage of the proceedings are vitiated on account of it being blatantly contrary to law. He would urge the following contentions:

(i) The delay in lodging the complaint and registration of FIR have vitiated the entire proceedings, as there is admittedly, a delay of 9 months in registration of complaint against the petitioner;

(ii) The cognizance of the offence taken by the learned

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2021 Supreme(Kar) 463

Cases Referred (26)