Allowed

Sri E Swamy Gowda v. State of Karnataka

Karnataka HC10 Mar 2021CRL.P/4320/2020

Case brief

AI extract

What is this about?

High Court allowed petition under Section 482 Cr.P.C. to set aside the trial court's order taking cognizance and issuing process. It held the trial court erred by not applying its mind to the prima facie material before recognition and that cognizance was wrongly taken by the CAO.

What did the court decide?

Impugned order dated 18.02.2020 and order dated 24.01.2019 of Trial Judge taken cognizance are quashed. Trial Judge directed to reconsider material afresh.

Sri E Swamy Gowda Vs State of Karnataka — Civil Procedure and Limitation | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL PETITION No.4320/2020

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BETWEEN:

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SRI E. SWAMY GOWDA, S/O LATE EREGOWDA. E, AGED ABOUT 43 YEARS, KACHUVANAHALLI VILLAGE, SATHNURU HOBLI, KANAKAPURA TALUK, RAMANAGARA DISTRICT-562117.

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SRI DODDAMADAIAH, S/O LATE DUNDAIAH, AGED ABOUT 74 YEARS, R/AT NO.3231, OPP. TTC, KANAKAPURA TOWN, RAMANAGARA DISTRICT-562117.

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… PETITIONERS

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(BY SRI PRAKASH M.H., ADVOCATE)

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AND:

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STATE OF KARNATAKA, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT, THROUGH KANAKAPURA TOWN POLICE, KANAKAPURA TALUK, RAMANAGARA DIST 562117.

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SUNILA @ SHALINI, D/O NARASIMAIAH, AGE: MAJOR,

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R/AT JULAPALYA VILLAGE, MITTEMARI HOBLI, BAGEPALLI TALUK, CHIKKABALAPURA DIST-561207.

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… RESPONDENTS

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(BY SRI K.S. ABHIJITH, HCGP FOR R-1; SRI B. PRASAD, ADVOCATE FOR R-2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ORDER DATED 18.02.2020 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, RAMANAGARA IN SPL.C.NO.6/2019 AND ALSO THE ADDITIONAL CHARGE FILED BY THE RESPONDENT NO.1 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 504, 498A, 494, 417, 114 R/W 34 OF IPC A/W SECTION 31(r)(s) OF THE PREVENTION OF ATROCITIES ACT.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 16.02.2021, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

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This petition is filed under Section 482 of Cr.P.C. praying this Court to set aside the order dated 18.02.2020 passed by the I Additional District and Sessions Judge, Ramanagara in Special Case No.6/2019 and also the additional charge-sheet filed by respondent No.1 for the offences punishable under Sections 504, 498A, 494, 417, 114 read with Section 34 of IPC along with Section 3(1)(r)(s) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act.

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The factual matrix of the case is that the informant

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gave the written complaint on 04.10.2018 at about 7.30 p.m. before respondent No.1 police stating that she was a permanent resident of Joolapalya Village in Bagepalli Taluk in Chikkaballapur District and she is the fifth daughter to her parents. It is alleged in the complaint that during 2016 she came to know about petitioner No.1 through social media and on account of mutual interaction there were exchanges of messages and calls. The proposal for love was unaccepted by her. It is further alleged that during the month of May 2017, petitioner No.1 had been to Chintamani and has said that he is a practicing advocate in Kanakapura and proposed her to marry and further stated that he lost his wife and child and is living alone. After 15 days, petitioner No.1 along with petitioner No.2 have been to her native and introduced to her parents and he also gave the same picture and proposal for marriage was accepted on 03.08.2018 and the marriage was taken place at Lakshminarashima Swamy Temple in Konakuntlu Village in Chintamani. Thereafter, she has joined petitioner No.1. On the fourth day, she noticed that the housemaid, one Rathnamma was wearing his clothes. After petitioner No.1 returned from the Court work, the said

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Rathnamma has told that his wife is objecting her and having heard this fact, petitioner No.1 had manhandled her. When she was in the room having disturbed by this incident, petitioner No.1 tried to abuse her sexually and despite her resistance, he did sexual harassment. On the next day, the said Rathnamma has told her that she is the married wife to petitioner No.1 and herself is an unmarried wife. On that day both of them have confined her in a room and on next day petitioner No.1 has asked about her caste and for which she told him that she belongs to scheduled caste. Then he started abusing her taking the caste name. Both of them threw her out from the house taking her valuables worth of 300 grams of gold, silver articles and silk clothes, then she left the place to her parents house. Hence, lodged the complaint. Based on the complaint, the police have investigated the matter and filed the charge-sheet for the offences punishable under Sections 419, 114, 494, 498A, 323, 504, 506, 342, 327, 376B read with Section 34 of IPC, Sections 3 and 4 of the Dowry Prohibition Act and Section 3(1)(r)(s) of the Prevention of Atrocities Act.

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3. The police after the investigation filed the further

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investigation report. Prior to that, an application was filed under

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Section 227 of Cr.P.C. and the same was rejected. Thereafter, the charges are also framed. When the matter is set down for trial, at this stage, additional charge-sheet which had contained several statements of witnesses are filed invoking Section 173(8) of Cr.P.C. and the same was challenged. The learned Trial Judge rejected the objections of the petitioners herein and accepted the additional charge-sheet. Hence, the present petition is filed before this Court.

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The first contention of the petitioners before this Court is that the course adopted by petitioner No.1 is against the settled proposition of law. The respondent No.1 appears to have taken ride in the case on hand without even observing the authority of the Court to seek prior permission to go for further investigation and to file additional charge-sheet. It is also the contention that the charge-sheet was filed on 23.01.2019 and the application was also filed by petitioner No.2 for discharge and the same was rejected. It is contended that the permissibility for further investigation though is set out under Section 173(8) of Cr.P.C., is circumscribed by various factors.

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When the stage of the case is set out for trial, the prosecution is totally barred from making any modification or changes in the

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report earlier submitted. The Court ought to have been conscious of the law laid down by the Hon'ble Apex Court in the case of AMRUTBHAI SHAMBHUBHAI PATEL v. SUMANBHAI KANTIBHAI PATEL AND OTHERS reported in (2017) 4 SCC 177, and in the case of ATHUL RAO v. STATE OF KARNATAKA AND ANOTHER reported in (2018) 14 SCC 298, wherein it is specifically held that once the cognizance is taken and the charges are framed, the doors of the investigating agency to open the investigation again under any pretext is closed.

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The learned counsel in support of his arguments also relied upon the judgment of the Hon'ble Apex Court in the case of BIKASH RANJAN ROUT v. STATE THROUGH THE SECRETARY (HOME), GOVERNMENT OF NCT OF DELHI reported in AIR 2019 SC 2002, wherein it is held that under Section 173(8) of Cr.P.C. for further investigation, the Magistrate cannot suo motu order further investigation and direct the Investigating Officer to submit the report. The Investigating Officer is at liberty to file application for further investigation under Section 173(8) of Cr.P.C.

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Per contra, the learned counsel for respondent No.2 would submit that Gujarat High Court in the case of ESSAR OIL LIMITED AND OTHERS v. CENTRAL BUREAU OF INVESTIGATION AND ANOTHER reported in 2010 CRI.L.J. 224 has held that conducting further investigation after final report submitted has been accepted, is not barred. Prior to carrying out such further investigation order accepting final report need not be reviewed, recalled or quashed. Further investigation is merely continuation of earlier investigation and it does not amount to any jeopardy. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within ambit of Clause (2) of Article 20 of the Constitution. Thus, the principle of double jeopardy would not be applicable to further investigation.

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The learned High Court Government Pleader appearing for respondent No.1 – State would submit that further investigation can be ordered at any time, for fair investigation is required. There is no bar for filing the further investigation report. The learned counsel would submit that in the case on hand, while filing the charge-sheet, the right was reserved to file further investigation report and the charge-sheet is not an

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absolute charge-sheet when the same was filed before the Court and the same is evident in the records.

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Having heard the respective learned counsel and also on perusal of the records, the learned I Additional District Judge while rejecting the objections raised by the accused, made an observation that the predecessor rightly took the cognizance and proceeded in the matter and the application filed under Section 227 of Cr.P.C. was rejected. The charges also framed. It is also observed that though the word “cognizance taken” is typed above the signature of CAO and the same is followed by his learned predecessor’s signature. It is also observed that using the word “taking cognizance” itself is not resulted in taking cognizance of the offences alleged against the accused in the absence of issuing any process required under Section 204 of Cr.P.C. Consequently, even absence of using the word “cognizance” by his learned predecessor in office and issuing process against the accused itself is sufficient to say that, cognizance, in true spirit of the words, is taken by this Court by the learned predecessor in office.

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The other reason given by the Trial Court is that in the judgments of the Apex Court in the cases of Amrutbhai Shambhubhai Patel (supra) and Athul Rao (supra), the Apex Court observed that further investigation can be directed and additional charge-sheet can be filed only for securing fair investigation and trial. But, in the instant case, the learned counsel for the defense in his objections to the additional charge-sheet not stated any insecure, unfair investigation affecting adversely the interest of the accused and absence of any prayer made by the Investigating Officer at the time of filing the initial charge-sheet. It is further observed that the objections on record filed by the counsel for accused not reveal any other ground to reject the additional charge-sheet. It appears that two main objections are raised before the Trial Court. First of all, the Judicial Officer has not taken the cognizance and the cognizance was taken by the CAO and there is no any order for taking the cognizance and the materials are found to proceed against the accused.

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10. Having perused the order sheet, which is available

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before the Court, when the Court has received the papers, a

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note was made for having received the charge-sheet for the offences referred above. It is also mentioned that under Section 173(8) of Cr.P.C., the Investigating Officer prayed for further investigation and to file the report and the Court has permitted for further investigation. Having perused the same, no such material is found for having permitted for further investigation. It is also important to note that the cognizance was taken for the offences mentioned. It is important to note that when the charge-sheet is filed, the learned Magistrate has to look into the material available on record i.e., charge-sheet and its enclosures and then apply his judicious mind whether it is a fit case to proceed against the accused persons and prima facie material is found to proceed against the accused persons. The same is absent in the present case.

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It is important to note that the order sheet reveals that the cognizance is taken by the CAO and not by the Judge. On perusal of the order sheet, the Judge has passed only an order to issue non-bailable warrant to the accused since it is reported that accused Nos.1 and 2 are absconding. The I Additional District Judge, who rejected the objections raised by the accused, has not looked into the order sheet and instead of

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in paragraph No.10 stated that the “cognizance taken” is typed above the signature of the CAO and even inspite the same is noticed, he observed that his learned predecessor in office has issued non-bailable warrant to the accused. The learned Judge also failed to take note of the application of mind by his predecessor and when the charge-sheet is filed, the Judge has to apply his mind and look into the charge-sheet and its enclosures and then form an opinion that there are prima facie materials to proceed against the accused. The same is not found in the order. Apart from that, the order sheet clearly discloses that the cognizance was taken by the CAO not by the Judge and the Judge only ordered for issuance of non-bailable warrant that too after affixing the signature by the CAO. The I Additional Judge lost sight of this fact and mentioned that even absence of using the word “cognizance” by the learned predecessor in office and issuing process against the accused itself is sufficient. The said observation is also erroneous and nowhere the order is passed by the I Additional District Judge that he has ordered for issuance of process, except ordering for non-bailable warrant. It is observed that the cognizance, in true spirit of the words, is taken by the predecessor in office and the very observations of

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the I Additional District Judge is erroneous and he did not apply his judicious mind, instead of in a casual manner he rejected the grounds urged by the petitioners herein. First of all, the cognizance is not taken by the Judge and while issuing the process, not applied the mind looking into the charge-sheet and its enclosures whether the same discloses prima facie material to proceed against the accused. On the first ground itself ought to have been considered the matter afresh by the I Additional District Judge. Instead of, he rejected the objections raised by the petitioners herein erroneously.

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The second ground of argument of the learned counsel for the petitioners before this Court is that after filing the charge-sheet, without seeking permission of the Court, additional charge-sheet is filed. Having perused the chargesheet materials, the Investigating Officer has filed the chargesheet and it is specifically noted in the charge-sheet that he is going to file the additional charge-sheet and sought permission. No doubt, there is no any order on the request of the Investigating Officer, but the fact is that the Investigating Officer has not filed the absolute charge-sheet before the Court and he has reserved his right to file additional charge-sheet conducting

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further investigation. No doubt, the Apex Court in the judgment in the case of Amrutbhai Shambhubhai Patel (supra) discussed with regard to power of the Magistrate to direct further investigation after cognizance has been taken/process issued or accused has been discharged. The principles are also summarized. Once the cognizance has been taken, process issued or accused has been discharged what would be the course of action to the Court. It is not in dispute that further investigation order could be passed under Section 173(8) of Cr.P.C. for fair investigation and also for fair trial.

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The Apex Court in the judgment in the case of Athul Rao (supra), discussed with regard to ordering for further investigation after framing charges and taking cognizance with regard to the impropriety of the order. It is held that, neither Magistrate suo moto, nor an application filed by the complainant/informant, can direct further investigation once charges are framed and cognizance is taken. Further investigation can be ordered only on request of the investigation agency and that too in circumstances warranting further investigation on detection of material evidence only to secure fair investigation and trial. Here, it has to be noted that in the

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case on hand, I have already pointed out that no absolute charge-sheet is filed and the Investigating Officer has prayed the Court to permit him to submit the additional charge-sheet and hence though the learned counsel for the petitioners relied upon that judgment, it is also helpful to the State. There is already a request by the Investigating Officer and I have already pointed out that no absolute charge-sheet is filed. When such being the facts and circumstances of the case, in order to come to a right conclusion based on the fair investigation, further investigation, if it is required, the Court can permit. But it requires judicial application and it should not carry miscarriage of justice.

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It is important to note that even the Court also directed further investigation after the trial even at the stage of the appeal when the fair investigation has not been conducted. The Apex Court in the case of ZAHIRA HABIBULLA H. SHEIKH

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AND ANTOHER v. STATE OF GUJARAT AND OTHERS reported in 2004 AIR SCW 2325, which is also known as “Best Bakery Case”, explained the circumstances warranting for further investigation even at the appellate stage. It is important to note that I have already pointed out that no absolute chargesheet is filed and a prayer was made at the inception of filing the

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charge-sheet to file additional report. In the case on hand, additional charge-sheet contains the statement of some of the witnesses and when the absolute charge-sheet is not filed, the additional statement of the witnesses is filed and the same does not affect the right of the accused and nowhere it prejudices the interest of the petitioners herein. Hence, I do not find any force in the contention of the learned counsel for the petitioners with regard to filing of the additional charge-sheet.

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This Court in the judgment in the case of B. RUBIN BRITTO v. INSPECTOR OF POLICE AND OTHERS reported in (2019) 2 K.L.J. 736, discussed in detail regarding exercising the power under Section 173(8) of Cr.P.C. relying upon the judgment of the Apex Court in the case of HASANBHAI VALIBHAI QURESHI v. STATE OF GUJARAT AND OTHERS

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reported in (2004) 5 SCC 347 . The Apex Court in the said judgment held that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during the course of trial, it may be cured by further investigation, if circumstances so permit.

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In the case on hand, it has to be noted that I have already pointed out that the learned Judge has not applied his judicious mind and proceeded to pass an order and instead of CAO has initialed after noting cognizance is taken. Hence, it is clear that the Judge has not taken the cognizance and the CAO has taken the cognizance. The Judge only passed an order to issue non-bailable warrant. No doubt, while issuing the process, the Court need not pass any detailed order, but it requires application of mind whether the materials collected by the Investigating Officer prima facie discloses to subject the accused for trial and the same is missing in the case on hand. When the accused raised the objections the Trial Court also not considered the same in proper perspective and committed an error. Hence, it requires to set aside the order of the learned District Judge and to re-consider the matter afresh and conduct denova procedure for taking the cognizance and issuance of process on the police report. Though the charge is framed and the matter is set down for trial, it requires the matter to be dealt with by denova procedure.

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17. In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The petition is allowed.

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(ii) The impugned order dated 18.02.2020 is quashed partly in respect of issuance of process and consequently the order dated 24.01.2019 passed by the Trial Judge taking cognizance is quashed.

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(iii) The learned Additional District Judge is directed to consider the material on record i.e., charge-sheet and its enclosures including the additional charge-sheet filed by the Investigating Officer and pass an order whether there is a prima facie material to proceed against the accused and then proceed in accordance with law.

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Sd/JUDGE

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MD

Sri E Swamy Gowda v. State of Karnataka

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What is this about?

What did the court decide?

Sri E Swamy Gowda v. State of Karnataka

Case brief

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