1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 23RD DAY OF JANUARY, 2014 BEFORE THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO. 11318/2013 BETWEEN: 1. SMT. SHARADA W/O. BASAVARAJ GADAGI, AGE: ABOUT 53 YEARS, OCC: SERVICE, H.NO.1456, RAMATHIRTH NAGAR, GUDDALAYOUT, BELGAUM-590002. 2. MALLIKARJUN S/O. PUROSHOTHAMA TANDUR, AGE: ABOUT 53 YEARS, OCC: PRIVATE SERVICE, WARD NO: 6, HARDOLLI, NEAR HANUMAN TEMPLE, GULEDAGUDDA - 587203, TALUK: BADAMI, DIST: BAGALKOT. 3. SMT. DRAKSHYANI W/O. MALLESH TANDUR, AGE: ABOUT 43 YEARS, OCC : SERVICE, WARD NO: 6, HARDOLLI, NEAR HANUMAN TEMPLE, GULEDAGUDDA-587203, TALUK: BADAMI, DIST: BAGALKOT. 2 4. CHANNABASAPPA S/O. SHANKRAPPA GADAGI, AGE: ABOUT 38 YEARS, OCC: SERVICE, R/O: SAVADATTI TOWN PANCHAYAT OFFICE, SAVADATTI-591126, DIST: BELGAUM. PETITIONERS (BY SRI M. M. PATIL, ADVOCATE) AND : DODDAPPA S/O. VEERAPPA BHAVI, AGE: ABOUT 58 YEARS, OCC: WEAVING, WARD NO:5, HARDOLLI NEAR, SRI SALESHWAR TEMPLE, GULEDAGUUDA - 587203, TALUK: BADAMI, DIST: BAGALKOT. RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ORDER PASSED BY CIVIL JUDGE (JR.DN.) & JMFC COURT, BADAMI IN [CASE NUMBER] ARISING OUT OF [CASE NUMBER], FOR THE OFFENCES PUNISHABLE UNDER [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] OF [ACT], AND [SECTION] OF THE [ACT]. [CASE NUMBER] IS FILED FOR GRANT OF STAY. THIS PETITION A/W. I.A. COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: 3 ORDER
Heard learned counsel for the petitioners. Perused the records.
2. Petitioners have called in question the orders passed by [ENTITY], in [CASE NUMBER] in taking cognizance against the petitioners under [SECTION] of the [ACT] (hereinafter referred to as '[ACT]' for brevity) for the offences punishable under [SECTION], [SECTION], [SECTION] and [SECTION] with [SECTION] of the [ACT] (hereinafter referred to as '[ACT]' for brevity) and also under [SECTION] of the [ACT].
3. Learned counsel for petitioners strenuously contended that the complainant having failed in a civil suit has lodged a private complaint under [SECTION] of [ACT] on the file of J.M.F.C., I Court, Badami, by making false allegation against the accused - petitioners. The Magistrate without looking into the averments of complaint and sworn statement and without properly appreciating the same in proper perspective has wrongly taken cognizance and issued process against the accused persons.
4. The complaint discloses that on 13.06.2004 at about 10.30 a.m. the accused persons were cutting and removing a neem tree in the land of complainant bearing CTS No.3632/1A, when the complainant objected, the accused persons have used filthy language for abusing the complainant and accused Nos.1 and 3 have pulled the saree of complainant's wife, accused Nos.2 and 4 also threatened her with dire consequences of killing her and assaulted her by their hands.
5. The learned counsel for petitioners has drawn my attention towards some of the discrepancies in the sworn statement of the complainant and also the witnesses examined by complainant. The question is, whether at this stage the Court can look into the discrepancies or omissions in the sworn statement in order to find out the veracity of the order for taking cognizance of the offences. Learned counsel for petitioners in this regard has relied upon the rulings of the Hon'ble Supreme Court reported in -
(1) [PRECEDENT] between [PRECEDENT]
(2) [PRECEDENT] between [PRECEDENT].
6. On overall reading of the above judgments it has been held that -
" The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish or constitute any offence. The Court also took into consideration special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit the prosecution to continue.
The Court also should see where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings. If the Court is satisfied that the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged and where the allegations though constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. "
7. In this regard, a latest pronouncement of the Hon'ble Supreme Court in a case reported in [PRECEDENT] between [PRECEDENT], had laid down certain guidelines particularly at paragraph 27.13, which is applicable to the present case. Wherein, it has been observed that -
" Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."
(emphasis supplied)
8. Looking to the above said observations, at the time of taking cognizance Magistrate is only governed under [SECTION] of [ACT] The Magistrate on taking cognizance has to refer the sworn statement of complainant and statements of the witnesses, if any. On overall analysis of the complaint averments and as well as the statements of the witnesses, if the Magistrate is of the opinion that an offence is constituted then he has to take cognizance, at that stage the Magistrate is not empowered to marshal the facts and find out whether those witnesses can be relied upon and the evidence can be believed. It is the domain of the trial Court to appreciate the evidence only after the full dressed trial and when the witnesses are subjected to cross- examination.
9. The main contention raised by learned counsel for petitioners in this case is that whether the unsuccessful civil litigation on the part of complainant has led to filing of a complaint or whether in fact such an incident has happened or not has to be thrashed out only after providing an opportunity to the complainant to establish her case in such an event the petitioners would also get sufficient opportunity to cross-examine her. It is also notable point that if the complainant has filed a false complaint in order to simply drag the petitioners to Court, the petitioners can prosecute the complainant for malicious prosecution. Under the above said circumstances, if the Magistrate considers the sworn statement of complainant and takes cognizance that the offences alleged are constituted then it is mistake committed on his part. This Court under [SECTION] of [ACT] should not normally interfere with such orders. Under the above said circumstances, I do not find any strong reasons to interfere with the order passed by Magistrate. Hence, the petition deserves to be dismissed.
Accordingly, petition is dismissed. In view of disposal of main petition, [CASE NUMBER] for stay does not survive for consideration and the same stands dismissed.
JUDGE hnm/