Dismissed

Satishkumar @ Satish S/O Mallinath v. the State

Karnataka HC1 Aug 2023CRL.P/200444/2022

Case brief

AI extract

What is this about?

In a criminal petition filed under Section 482 Cr.P.C. to quash FIRs involving serious offences under the POCSO Act and IPC, the High Court dismissed the petition. Noting that the trial had commenced and a prima facie case existed, the Court held that quashing was not appropriate despite the complainant turning hostile.

What did the court decide?

Petition to quash the FIR and proceedings was dismissed; accused remains liable to trial.

Satishkumar @ Satish S/O Mallinath Vs the… — Child Sexual Offences (POCSO) | Karnataka HC (2023)

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1 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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IN THE HIGH COURT OF KARNATAKA

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KALABURAGI BENCH

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DATED THIS THE 1^ST DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE VENKATESH NAIK T

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CRIMINAL PETITION NO.200444/2022

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BETWEEN:

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SATISHKUMAR @ SATISH S/O MALLINATH AGE: 34 YEARS, OCC: TEACHER, R/O. VILLAGE MANDEWAL, TQ. JEWARGI, DIST. KALABURAGI, NOW AT MURARJI DESAI VASATI SCHOOL, NIDAGUNDA, TQ. CHINCHOLI

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Digitally signed by SHILPA R TENIHALLI Location: HIGH COURT OF KARNATAKA

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(BY SRI PRASHANT S. KUMMAN, ADVOCATE)

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AND:

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…PETITIONER

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THE STATE THROUGH WOMEN POLICE STATION, DIST. KALABURAGI REPRESENTED BY ADDL. SPP HIGH COURT OF KARNATAKA KALABURAGI - 585107

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2 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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PRIYA W/O MOHAN RATHOD AGE:29 YEARS, OCC: HOUSEWIFE R/O. BIJJALI TANDA TQ. ALAND DIST. KALABURAGI-585302 NOW AT LAXMI NARAYANA LAYOUT OLD JEWARGI ROAD KALABURAGI

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…RESPONDENTS

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(BY SRI SHARANABASAPPA M. PATIL, HCGP FOR R1; R2-SERVED)

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THIS CRIMINAL PETITION IS FILED U/S.482 OF CR.P.C., PRAYING TO ALLOW THE PETITION AND QUASH THE FIR IN CRIME NO.262/2021 OF CITY WOMEN POLICE STATION, KALABURAGI REGISTERED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A, 323, 504, 506, 494, 109, 343, 367, 376(2)(f), 376(2)(n), 354, 354(A)(i), 354(A)(ii), 354(D)(i) R/W SEC. 34 OF IPC, U/SECS. 3 AND 4 OF D.P ACT, SECS., AND SECS. 6, 10, 12, 17, 21 OF POSCO ACT AND SEC. 9 AND 10 OF PROHIBITION OF CHILD MARRIAGE ACT, INSOFAR AS PETITIONER IS CONCERNED.

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

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ORDER

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The petitioner-accused No.6 has filed this petition under Section 482 of Cr.P.C., praying to quash the FIR in Crime No.262/2021 of Kalaburagi City Women Police Station registered for the offences punishable under Section 498A, 323, 504, 506, 494, 376, 376(2)(f),

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3 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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376(2)(n), 354, 354(A)(1)(i), 354(A)(1)(ii), 354(D)(i), 109, 343 read with Section 34 of the IPC, Sections 3 and 4 of D.P. Act, Sections 6, 10, 12, 17 and 21 of POSCO Act and Sections 9 and 10 of Prohibition of Child marriage Act.

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Brief facts of the petition are that:

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The City Women Police Station, Kalaburagi registered

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a case against accused persons on the basis of the complaint lodged by PW1 and the present petitioner is arraigned as accused No.6. It is contended that the petitioner has been falsely implicated in the case by complainant in order to harass him and there is no ground to believe that the petitioner has committed any offences as alleged in the complaint. The only allegation against him is that the victim met and informed him about the incident alleged in Crime No.262/2021, but he has not taken any action on the information furnished by the victim and he sent her back saying that, both accused No.1 and victim belongs to the same caste. It is contended by the petitioner that none of the offences

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4 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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alleged in the complaint attribute to the petitioner. and he is no way concerned either with the accused nor with the complainant, the petitioner is a Teacher by profession and he is the only bread earner in the family, hence, prayed to quash the FIR in Crime No.262/2021 insofar as petitioner is concerned.

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Heard the learned counsel for the petitioner and the learned HCGP for the respondent-State.

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on perusal of records, it reveals that, the matter is pending in Special Case (POCSO) No.47/2022 on the file of II Additional District and Sessions Judge at Kalaburagi. The evidence of CWs.1 to 4 have been recorded as per PWs.1 to 4. At this juncture, the present petitioner being accused No.6 has filed the present petition praying to quash the proceedings. Admittedly, the trial Court framed charge against accused persons for the aforesaid offences and examined four witnesses. The allegation of the prosecution is that the accused persons have involved in

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5 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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the aforesaid offences and the present petitioner is also an abettor in commission of an offence. Merely because the petitioner is a Teacher and there is delay in completion of the trial and also that the complainant has turned hostile to the case of the prosecution, at the stage of trial it is not feasible to quash the FIR against the petitioner. In fact, based on FIR the Investigating Officer has submitted charge-sheet and based on the material available on record the jurisdictional Court took cognizance of the offence under Section 190(i)(b) of Cr.P.C., and based on the charge-sheet material, after hearing both the parties, the learned Special Court framed charges against accused persons. Hence, he prayed to dismiss the petition.

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On perusal of the contentions raised by the petitioner and the material available on record, the Court not felt inclined to accept the extreme submissions of learned counsel for the petitioner for quashing the FIR or proceedings to set free the petitioner, whose trial has been delayed beyond reasonable time for the reasons already

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6 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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alluded to, the Court felt that depravation of the personal liberty without ensuring speedy trial would also not to be in consonance with the right guaranteed by Article 21 of the Indian Constitution. Of course, the same count of depravation of personal liberty cannot be awarded in such cases, but if the period of depravation pending trial becomes unduly long, the fairness assured by Article 21 would receive a golt.

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Admittedly, the offences alleged are grave in nature and against a minor girl under the POCSO Act. Therefore, the Court is not inclined to agree with the submissions of the learned counsel for petitioner that, the Court should quash the FIR or proceedings and set free the accused, whose trial will be delayed and merely because the complainant turned hostile to the case of the prosecution. Thus, the petitioner will not get such benefits.

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The power under Section 482 of Cr.P.C., or the power under Article 226 of the Constitution of India to

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7 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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quash the First Information Report is to be exercised in a very sparing manner and it is not to be used to chok or smother the prosecution that is legitimate. This ratio is laid down in the case of The State Of Telangana vs Habib Abdullah Jeelani & Ors¹ . Further, if the petition under Section 482 of Cr.P.C., was at the stage of FIR, in fact as case, the allegation in the FIR/Complaint purely are required to be considered and whether a cognizable offence is disclosed or not, is required to be considered.

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Whereas, in the instant case on perusal of the material available on record the cognizable offence is disclosed and the matter is pending before the Special Court for trial under various Sections of IPC and POCSO Act.

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The Court find that, after due investigation the police submitted charge-sheet and cognizance also appears to

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1 (2017) 2 SCC 779

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NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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have been taken, evidence also appears to have commenced.

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The counsel for petitioner contends that, there is nothing on record to show that, petitioner has abetted or participated in commission of offence, hence, if allegation against petitioner is not prima facie made out, there is no reason why he should face a criminal trial.

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The Hon'ble Supreme Court in the case of RAJEEV KOURAV versus BAISAHAB AND ORS² at Para No.8 has

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held as under:

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"We do not agree with the submissions made on behalf of Respondent Nos.1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 Cr.P.C. Statements of witnesses recorded under Section 161 Cr.P.C., being wholly inadmissible in evidence cannot be taken into consideration by the Court, while

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2 (2020) 3 sec 317

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9 - NC: 2023:KHC-K:6042 CRL.P No. 200444 of 2022

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adjudicating a petition filed under Section 482 Cr.P.C." .

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In view of ratio laid down in the decision cited supra,

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if prima facie case is made out disclosing the ingredients of the offence alleged against the accused the Court cannot quash a criminal proceeding.

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Admittedly, statements, of witness recorded uNDER Section 161 Cr.P.C., being wholly inadmissible in evidence, cannot be taken into consideration by the Court, while adjudication a petition filed under Section 482 Cr.P.C.

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Hence, there is no merits in the petition and petition is liable to be dismissed. Accordingly, petition

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dismissed.

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Sd/JUDGE

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SBS List No.: 1 Sl No.: 24

Satishkumar @ Satish S/O Mallinath v. the State

Case brief

What is this about?

What did the court decide?

Satishkumar @ Satish S/O Mallinath v. the State

Case brief

What is this about?

What did the court decide?

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