IN THE HIGH COURT OF KARNATAKA CIRCI lIT I3ENCI I AT DI IARWAD DATED THIS THE 30 m DAY OF SEPTEMBER 01 1 BEFORI THE HON’BLE MR. JUSTICE ANAND BYRAREDDY CRIMINAL PETITION No.7947/2010 BETWEEN: Mohan Sb. Bhikaro E3holashettikar Age: about 53 years. 0cc: I3usiness. Rio. Gurumath Road, Sankriwada, Kftiubag. Karwar. 2. Divesh Sb. Mohan Bholashettikar Age: about 28 years. 0cc: Advocate. Ro. Ciurumath Road. Sankriwada. Kajubag, Karwar. 3. Sushila W’o.Mohan Bholasheuikar Age: about 46 years, 0cc: Ilousehold, Rio. Gurumath Road, Sankriwada, Kajubag. Karwar. 4. Anila D/o. Laxman Durgekar Age: about 45 years. 0cc: Business. R/o. Sea Bird Colony. Chittakula. Karwar. 5. Nirmala Wio.Laxman Durgekar Age: about 40 years, 0cc: Stall Nurse, Rio. Primary Health Centre. Surathkal. Mangalore. 2 6. Geeta Wa. Shrinivas Manjalikar Age: about 38 years. 0cc: Household. Rio. Kursiwada. Tq: & 1)1st: Karwar. l’FIITI( )N[RS (13> Sun 5.5.Yadrami. Advocate.) AND: 1. The State of Kamataka. By PSI. Kanvar Town P.S.. Karwar. Rep. by State Public Prosecutor. The 111gb Court of Karnataka. Circuit Bench at 1)hanvad. 2. Smt.Kalpana W/o. Sudarshan Durgekar Age: 29 years. 0cc: 1 lousehold work. Rio. Seahird Colony. Chittakula. Sadashivagad. Karwar. Now R/at: Manjuguni, Tq: Ankola, Dist: U.K. .RESPONDENTS (By Shri Vinayak S. Kulkarni, Government Pleader for R. 1.) (Shri Anil Kale. Advocate, for R.2.) This Criminal Petition is filed under Section 482 of the Code of Criminal Procedure seeking to quash the impugned complaint. order of issuance of process in C.C.No2 17/2010 vide Annexures F and 1. respectivel>. on the tile ofJMFC, Kanvar (UK). This petition coming on for tinal hearing this day. the Court made the following: z 1 ., ORDER Heard the learned counsel for the petitioner and the learned counsel for the respondent No.2. 2. The facts are as thilows: One Sudarshan son of Laxman Durgekar aged about 34 years was a resident of Seabird Colony, Chittakula. along with his wife Kalpana, his mother and his unmarried sister Anita, petitioner No.4 herein. The petitioners No.3 to 6 are sisters of Sudarshan and petitioners No. I and 2 are the husband anti son of petitioner No.3. respectively. It transpires that petitioner No.4 the unmarried sister of Sudarshan had purchased a shop on lease at Karwar Bus Stand in the year 2006 in a scheme of the Karwar Municipality at a public auction, for a consideration of t3.36 lakhs and had established a medical shop in the name and style of ‘Shuhham Medicals. along with her brother Sudarshan and the) were jointly running the business. It transpires that Sudarshan had Iiillcn victim to drug addiction and Kalpana, the wife of Sudarshan was away. at her maternal house for her child’s delivery in the year 2008. It transpires that on 28.07.2008 the petitioner No.1 had received a call from S 4 petitioner No.4 infonning him that Sudarshan had not returned home even at 12.00 midnight. The petitioner No.1 theretbre ‘sent in search of him and while moving on the National I Iighway No.1 7, he saw that a motorcycle had dashed against an electrical pole and the rider was lying on the ground. On closer examination it was found that the man had died and it was Sudarshan. He was seriously injured in the head and there was heavy loss of blood. The petitioner No.4 immediately informed about the incident to his relatives and also registered a complaint with the jurisdictional police h> 2.30 a.m. ‘ith the Kanvar Traffic Police Station about the accident. A case was registered in Crime No.49:2008 in this regard. The postmortem report of the body was conducted at the District I lospital, Karwar, which indicated that Sudarshan had died as a result of crush injury on deformity of nose and maxilla, deformity of mandible, multiple fractures of facial and skull bones etc.,. The cause of death was shown as. due to intra-cranial haemorrhage sustained by him in a road traffic accident. The police have thereafter liled a charge sheeted against the deceased Sudarshan. Kalpana. the widow of deceased Sudarshan thereafter approached the petitioner NC). I and demanded that the ownership of the medical shop shich was run jointly by Sudarshan and the petitioner No.4 be transferred entirely S 5 in her name and also to exchange the motorcycle involved in the accident in order to it would enable her to claim compensation in respect of the motor accident. The petitioner No. I agreed to provide some amount to Kalpana in order to ensure that she do not sti IThr on account of her hushand°s death. hut disagreed ith some demands made by her on the footing that the petitioner No.4 who was also unmarried and totall5 dependent on the said shop 11w her livelihood could not be deprived of the same. It is in the wake of this circumstance that tive months after the accident and with a view to bring pressure on the petitioners and to ensure that they would succumb to her demands, the widow of Sudarshan had filed a private complaint on 03.12.2008 in a case P.C.No. 146/2008 helbre the jurisdictional Magistrate First Class. Karwar, for the oflènces punishable under Sections 143. 147, 302 and 506 read with Section 149 ofthe Indian Penal Code, 1860, alleging that the petitioner No.4 had borrowed money from her husband and had purchased the shop and further. since the petitioner No.2 was an unemployed man. the petitioners were forcing the deceased Sudarshan to hand over the medical shop to him and he was constantly tinder threat by the petitioners anti that he “as ultimatel> done to death with the assistance of hired killers and it is on the basis of that complaint that ‘3 6 the Magistrate had ordered far an investigation. The Superintendent of Police. Karwar, in turn had submitted a report holding that there was no case made out as suggested in the private complaint. The complainant Kalpana had thereafter filed a protest petition. The Magistrate in turn without recording the s’orn statement of the complainant and merely on the basis of the objections tiled to the 13’ report, has taken cognizance of the case and has issued process. It is in this background that the present petition is filed. 3. The learned counsel far the petitioners would point out that the entire allegations in the complaint even if unrebutted. would not make out a case against the petitioners and on that principle the proceedings would have to be quashed before the Magistrate. [he learned counsel would further point out that the proceedings are vitiated for the failure to comply with the mandatory requirement under Section 200 read with Section 202 of the Code of Criminal Procedure. 1973 (hereinafter referred to as Cr.P.C.. for l’re itvL I Ic would submit that the sworn statement of the complainant ought to have been recorded in the first instance, before the Magistrate taking cognizance of the complaint, since the original private complaint was directed to be investigated and if Section 202 of the (‘r.P.C. 7 came into play. it was again necessary that the complainant and the witnesses ought to have been examined on oath. This has not been complied with and the mechanical approach of the Magistrate in having taken cognizance on the basis of the protest petition, which is tiled by the complainant is wholly irregular and would indicate a non application of mind in taking cognizance of the case which subjects the petitioners to the agony of a trial when there is no basis tbr the allegations and when there was a clear case of a road accident, in which the deceased had died. The theory of murder through hired killers by the petitioners is therefore a figment and complainanis imagination and this motivated us atbresaid by her intention to bring pressure on the petitioners to compromise the situation by giving up the property which she claims. 4. The learned counsel for the respondent on thc other hand would contend that in terms of Section 190 of the (.‘r.P.C.. the Magistrate is not required to record the statements ol’ the complainant and the witnesses, if action is taken on the police report. In the instant case the Magistrate having taken cognizance on the basis of the protest petition is in fact action taken on the police report. Since certain infirmities in the police report having been S 8 highlighted, the Magistrate has thought it lit to act upon the same notwithstanding the opinion ol the police that there was no case made out to proceed further and he would further submit that even if there “as any procedural inlirmit> in the sworn stalenicnt ol the complainant not having been recorded ‘w the examination of V!iiICSscs on behalf ol the complainant and th: c’ nnpl.itiant lien%clt the same can be cured by remanding the matter ar,d directing the Magistrate to comply with the said procedure. I Lnice LO negvte the case of the complainant at the threshold on the Iboting that if the entire allegations are unrehuttal. it \a)tild ha e bring ioine the charge. is not tenable contention. If LW: entirc €tllegatioi’s go unrehut. the petitioners should not he subjc h’ cn;ivict ion ir the oltence of serious offence of murder and there Ibre there is no warrant tot qu.shing (he proceedings alt flis si let .ii; c’ en ii th. l1:.:!tnItr% ;‘r.. capable of making out a case for the discharge. the stage not having been anived. it is open lbr the pCtiih’L” to rake such uileitto:l :! the appropriate time before the Court oelow and hence would submit that there Is no arrant Ibr inierlercne. 5. (liven the above facts .nd cireumstance the belated complaint iii itsel I’ watet ed dow tithe ai•iiness of the alL nttions. 9 There was no indication in the manner in which Sudarshan had died though it was not on account of the road accident but was killed by anybody. The allegation that he was done to death through hired killers being made five months after the incident is without preamble. The complainant apparentl) has not indicated the manner in which she has discovered the conspiracy and how the petitioners were instrumental in engaging hired killers and whether the petitioners had intended in engaging the said hired killers to carry out the murder of Sudarshan Ibr gain, since thc complainant’s own case is that the said Sudarshan had invested about six lakh rupees. whereas the business was commenced by the petitioner No.4 with the contributions made by sisters and brother ol’ petitioner No.5 in a sum of t3.36 lakhs and the deceased Sudarshan having joined the business and having assisted the petitioncr No.4 thereafter. would belie the suggestion that there was a huge investment of six lakh rupees thereatier. Apparently there is no material produced before the Court below in this regard. Hence the Magistrate having proceeded in a mechanical manner in taking cognizance in spite of the ‘B’ report having been filed after sustained investigation by the Superintendent of Police would vitiate the proceedings. The facts and circumstances do not revoke the conlidence ot’ the Court of a 10 prima fade case having been made out. The version that there is curable delet if any and that the petitioners ought to argue the case beibre the Magistrate for discharge at the appropriate time is a contention that can be accepted. From a totality of the circumstances present. it cannot he said that a ease has been made out 11w the Magistrate to have been taken cognizance without a further detailed examination of the statements of the complainant and her witnesses if any and on reexamination of the material on record. Hence the Magistrate having taken cognizance in the above circumstances is totally out of place. 6. Accordingly the petition stands allo’sed. The Proceedings beibre the Magistrate stands quashed. Sd/ JUDGE Mrk: