Allowed

Venktatesh S/O Srinivas Bhat v. the State of Karnataka

Karnataka HC22 Feb 2019CRL.P/101465/2014

Case brief

AI extract

What is this about?

The High Court allowed the Criminal Petition and set aside the order committing a case to the Sessions Court under Section 209 Cr.P.C. because the Magistrate failed to exercise judicial discretion, as the charge sheets lacked offences triable by the Sessions. The matter was remanded to the Magistrate.

What did the court decide?

Impugned order committing matter to Sessions Court set aside; Magistrate directed to dispose of matter within one year.

Venktatesh S/O Srinivas Bhat Vs the State… — Civil Procedure and Limitation | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF FEBRUARY, 2019

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BEFORE

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THE HON’BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION NO.101465/2014

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BETWEEN:

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VENKTATESH S/O SRINIVAS BHAT, AGE: 52 YEARS, OCC: ARCHAKA, R/O. MGM TEMPLE SHIRALI, TQ: BHATKAL.

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VIDHYADHAR S/O. VENKTESH BHAT, AGE: 25 YEARS, OCC: ARCHAK, R/O. MGM TEMPLE, SHIRALI, TQ: BHATKAL.

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VINOD S/O VENKATESH BHAT, AGE: 23 YEARS, OCC: STUDENT, R/O. MGM TEMPLE, SHIRALI, TQ: BHATKAL.

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SARVOTHAMA S/O. SHANTA BHAT, AGE: 52 YEARS, OCC: ARCHAK, R/O. KONKANAKERI, SHIRALI, TQ: BHATKAL.

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…PETITIONERS

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(BY SRI.V.M.SHEELVANT, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH PSI, BHATKAL RURAL P.S., R/BY SPP, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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D. VAMAN S/O. NARAYAN KAMAT, AGE: 65 YEARS R/O. 7^TH CROSS, GANDHI NAGAR, MANGALORE.

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…RESPONDENTS

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(BY SRI.PRAVEEN K UPPAR, HCGP FOR R1, SRI.SABEEL AHAMD, ADVOCATE FOR SRI.A.S.PATIL, ADVOCATE FOR R2)

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THIS PETITION IS FILED UNDER SECTION 482 OF CR.P.C. SEEKING TO QUASH THE ORDER DATED 11.08.2014 PASSED BY THE PRL. CIVIL JUDGE & JMFC COURT, BHATKAL, IN C.C.NO.1034/2007.

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THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard the petitioners’ counsel and also the

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learned HCGP for respondent No.1 and the counsel for respondent No.2.

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The petitioners are the accused Nos.1, 2, 3 and 7 by invoking Section 482 of Cr.P.C. approached this Court seeking an order to quash the order dated 11.08.2014 passed by the learned Prl. Civil Judge and JMFC, Bhatkal in C.C.No.1034/2007 and pass such

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other order as deems fit in the circumstances of the case.

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The factual matrix of the case is that PSI,

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Bhatkal Police Station registered Crime No.145/2006 for the offences punishable under Sections 143, 147, 504, 427, 307 read with Section 149 of IPC against 11 accused persons and other unnamed persons on the basis of the complaint filed by one Sri.D.Vaman Kamat and the Investigating Officer after investigating the matter, filed the charge sheet for the offences punishable under Sections 143, 147, 324, 326, 504 and 506 read with Section 149 of IPC dropping the offences under Section 307 and 427 of IPC and the learned Magistrate has issued summons to the petitioners and when the matter was posted for hearing charge and after hearing both the counsels, the learned Magistrate was pleased to order for reinvestigation and after the reinvestigation also, the police have filed the charge

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sheet against the accused Nos.1 to 11 and dropped the offences invoked under Sections 307 and 427 of IPC and hence the counsel appearing for the complainant has filed a protest memo dropping the offences under Sections 307 and 427 of IPC and the learned Magistrate allowed the protest memo filed by respondent No.2 and rejected the charge sheet filed by the investigating agency and ordered to array the accused Nos.12 to 15 and also took cognizance for the offences under Sections 143, 147, 504, 307 and 326 read with Section 149 of IPC against accused Nos.1 to 15. The same has been challenged before this Court in Crl.Pet.No.11422/2012 connected with

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Crl.Pet.No.11330/2012 and this Court quashed the order dated 11.08.2014 and directed to restore the first final report and also quashed the initiation of proceedings against accused Nos.12 to 15. However, directed to commit the matter by invoking Section 209

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of Cr.P.C. The learned Magistrate in view of the said direction, mechanically taken the cognizance and invoked Section 209 of Cr.P.C. and committed the matter to the Sessions Court and the same has been questioned before this Court by filing this petition.

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The main grounds in this petition is that the learned Magistrate though opined that final report and supplementary report does not include Section 307 of IPC, but for the directions of this Court, the matter was committed to the Sessions Court erroneously and hence the order is erroneous and liable to be set aside. The learned Magistrate has not applied his judicial mind to the facts of the case and when the final report does not include offence under Section 307 of IPC, the learned Magistrate himself get the jurisdiction to try the offence and the question of committing the matter to the Sessions Court does not arise and hence the impugned order is liable to be set aside.

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5. The petitioners’ counsel in his argument also

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he relied upon the grounds urged in the petition and contends that the learned Magistrate did not apply the material and before committing the case to the Sessions

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Court ought to have applied his judicial mind with regard to the material available on record i.e. charge sheet and as well as supplementary charge sheet filed before the Court and in the charge sheet nowhere Section 307 of IPC is invoked and instead it is specifically mentioned that the offence under Sections 427 and 307 of IPC are dropped out and in spite of the same, the matter was committed erroneously and hence the committal of the matter to the Sessions Court is liable to be set aside.

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Per contra, the counsel appearing for the respondent No.2/complainant in his arguments he contends that while setting aside the order of rejecting the filing of charge sheet

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and supplementary charge sheet, this Hon’ble Court set aside the order passed by the Magistrate and also directed that the Magistrate shall restore the final report and supplementary report and commit the case against accused Nos.1 to 11 and also set aside the issuance of process to accused Nos.12 to 15 and further observed that issuance of process to accused Nos.1 to 11 on the basis of protest memo has become infructuous on account of directing the learned Magistrate to commit the case to the Court of Sessions and respondent No.2 is at liberty to pursue remedy under section 200 of Cr.P.C. to prosecute the petitioners in Crl.P.No.11330/2012 i.e., accused Nos.12 to 15 and disposed of the criminal petition and having given such a direction, the Magistrate has rightly committed the matter to the Sessions Court and hence this Court cannot interfere with the order of

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the Magistrate quashing the order of committal of the case to the Sessions Court.

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Having heard the arguments of the petitioners’ counsel and also the counsel for respondent No.2 and on perusal of the material on record, the question arises for consideration of this Court is whether this Court can exercise the powers under section 482 of Cr.P.C. to quash the proceedings as sought in the petition.

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On perusal of the records, admittedly, the case was registered at the first instance for the offence punishable under sections 143, 147, 427, 504, 307 read with section 149 of IPC and after the investigation while filing the charge sheet, the Investigating Officer did not invoke section 307 and 427 of IPC and thereafter report was filed and the same was questioned by respondent No.2 before the Magistrate and the

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protest memo was allowed and issued summons against the accused Nos.1 to 15 and also subsequently an application was filed for further investigation and the same was allowed and directed the Investigating Officer to further investigate into the matter and the supplementary charge sheet is also filed and the Magistrate issued summons against the accused Nos.1 to 15 and the same is questioned before this Court in Crl.P.No.11422/2012 and Crl.P.No.11330/2012 and this Court quashed the proceedings against accused Nos.12 to 15 and the very order made by the Magistrate committing the charge sheet against accused Nos.1 to 11 is also set aside and restored the final report and supplementary report and when such being the case, this Court has to look into the final report and the supplementary report and on perusal of both the reports, it is clear that the offence under section 307 and 427

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of IPC are not invoked against the accused persons and no doubt while restoring the same, a direction was given to the Magistrate to commit the case as against accused Nos.1 to 11 to the court of Sessions exercising the powers under section 209 of Cr.P.C. and even when the direction was given to the Magistrate, it is the duty cast upon the Magistrate to look into the offences invoked and examine whether the offences invoked against the accused persons, if any of the offence are exclusively triable by the Sessions Judge, then only he has to exercise the powers under section 209 of Cr.P.C. and if no such offences are invoked, which are triable by the Sessions Judge, even then order has been passed committing the case to the Sessions Court, apparently mistake is apparent on record. The petitioner’s counsel also brought to the notice of this Court that when the charge sheet and

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supplementary charge sheet which are restored do not contain the offence punishable under section 307 of IPC, the question of committing the matter to the Sessions Court does not arise. It appears based on the order of this Court, in the above referred criminal petitions, the Magistrate ordered to send records to the Sessions Court even in the absence of offences triable by the Sessions Judge and hence this Court is of the opinion that the Magistrate did not apply his judicial mind while committing the matter to the Sessions Court and hence, the very impugned order dated 11.8.2014 passed by the learned Prl. Civil Judge and JMFC, Bhatkal, in C.C.No.1034/2007 is liable to be set aside and the matter has to be dealt by the very same Magistrate since the offences are triable by the Magistrate.

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9. In view of the discussions made above,

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this Court proceed to pass the following:

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ORDER

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The petition is allowed.

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The impugned order dated 11.8.2014 passed in C.C.No.1034/2007 committing the matter to the Sessions Court is hereby set aside. The Magistrate is directed to dispose the matter in accordance with law within time bound of one year since the C.C.No.1034/2007. Both the counsel are directed to assist the Court below in disposal of the case as stipulated.

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Sh/Mrk/-

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SD/JUDGE

Venktatesh S/O Srinivas Bhat v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Venktatesh S/O Srinivas Bhat v. the State of Karnataka

Case brief

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What did the court decide?

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