Allowed

Sri. Mahadev S/O. Basappa Savadi v. the State of Karnataka

Karnataka HC4 Sept 2023CRL.RP/100305/2023

Case brief

AI extract

What is this about?

The Karnataka High Court allowed a criminal revision petition challenging a Sessions Court order that rejected a prosecution application to take cognizance against an accused person (not charge-sheeted). The Court quashed the impugned order, set aside the rejection, and remitted the matter to the Sessions Court to issue a show-cause notice and proceed in accordance with Supreme Court jurisprudence

What did the court decide?

Impugned order dated 31.12.2022 set aside; matter remitted to Sessions Court to issue show-cause notice to accused No.2 and pass orders.

Sri. Mahadev S/O. Basappa Savadi Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC-D:10032 CRL.RP No. 100305 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 4^TH DAY OF SEPTEMBER, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE J.M.KHAZI

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CRIMINAL REVISION PETITION NO. 100305 OF 2023

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BETWEEN:

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SRI. MAHADEV S/O. BASAPPA SAVADI, AGE: 22 YEARS, OCC: STUDENT, R/O: MAIGUR FARM HOUSE, TQ: JAMAKHANDI, DIST: BAGALKOT-587119. (BY SRI. S. L. MATTI, ADVOCATE)

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…PETITIONER

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AND:

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THE STATE OF KARNATAKA, R/BY JAMAKHANDI RURAL P.S. JAMAKHANDI CIRCLE, NOW R/BY ADDITIONAL STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD-580011.

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CHANDRASHEKAR LAXMAN KATTIMANI Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.12 14:44:35 +0530

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SRI. LAXMAN S/O. BHEEMAPPA B.PATIL, AGE: 63 YEARS, OCC: AGRICULTURE, R/O: MAIGUR, TQ: JAMAKHANDI, DIST: BAGALKOT-587119,

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…RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1)

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THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W 401 OF CR.P.C. SEEKING TO QUASH OR SET ASIDE AN ORDER DATED 31.12.2022 PASSED BY THE I ADDL. DIST AND SESSION JUDGE BAGALKOT SITTING AT JAMAKHANDI IN S.C.NO. 5027/2021, ON THE APPLICATION FILED BY THE PUBLIC PROSECUTOR U/SEC. 193 OF CR.P.C. FOR TAKING COGNIZANCE AGAINST THE ONE BHARTESH S/O. LAXMAN PATIL, WHO WAS PREVIOUSLY ARRAYED AS ACCUSED NO.2 IN THE F.I.R. BY ALLOWING THIS REVISION PETITION AND

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ALLOWED THE APPLICATION FILED BY THE PUBLIC PROSECUTOR BEFORE THE TRIAL COURT.

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

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ORDER

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This criminal revision petition is filed by the complainant under Sections 397 and 401 of the Code of Criminal Procedure (for short, ‘Cr.P.C.’) challenging the order dated 31.12.2022 passed by the I Addl.District and Sessions Judge, Bagalkot, sitting at Jamkhandi, whereby the application filed by the learned Public Prosecutor under Section 193 Cr.P.C. to take cognizance against accused No.2-Bharatesh Laxman Patil (who is no other than the son of accused No.1-Laxman Bheemappa Patil) came to be rejected.

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In support of the petition, the petitioner/ complainant has contended that the impugned order is contrary to law and facts and as such, liable to be set aside. It is perverse, illegal, capricious and not supported by any valid reasons. There is sufficient material to show

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that accused No.1 along with his son i.e. accused No.2 instigated and abated Basappa Tammanna Savadi to commit suicide. In the complaint, it is specifically alleged that having failed to repay the loan, when repeatedly requested by the deceased/Basappa Tammanna Savadi accused No.1 along with accused No.2 gave threat to his life and said to repay the loan or else die. In their statement CWs4 to 8 have clearly spoken to about deceased standing as a surety to the loan taken by accused No.1 and his father. They failed to discharge the loan.

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In the meanwhile, father of accused No.1 died, after which he transferred the property in the name of his son i.e. accused No.2. Deceased went on requesting them to repay the loan or else his property would be brought to sale. Despite the same, both accused not only defaulted in discharging the loan taken by them but also abated and instigated the deceased to commit suicide. Though there is sufficient material, the concerned police intentionally have

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not filed charge sheet against accused No.2 and therefore, the prosecution filed application to take cognizance against him. However, the trial Court has rejected the same without sufficient reasons. Without any alternative, the complainant has approached this Court and hence the petition.

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4. Learned HCGP appeared for the State and

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supported the petition and prays to allow the same.

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Heard arguments and perused the record.

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On 05.07.2020, complainant Mahadev Basappa

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Savadi the son of deceased filed a complaint stating that they are residents of Maigur of Jamkhandi. His mother died about 2 years back. They are 3 sons to his father Basappa Tammanna Savadi. Accused No.1-Laxman Bheemappa Patil and his father Bheemappa Laxman Patil have borrowed loan from PKPS Bank. For the said loan, complainant’s father and one Mahadev Bahusha Idare have stood as sureties. A sum of Rs.1,75,000/- was due from borrowers. However, they have not repaid the loan.

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Bheemappa Laxman Patil died. On his death, accused No.1 has transferred his land to the name of his son i.e. accused No.2-Bharatesh Laxman Patil.

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Since they were not repaying the loan due, deceased was persistently requesting them to repay the same or else bank is going to proceed against him. However both accused No.1 and 2 were adamantly replying to the deceased that Bheemappa Laxman Patil who had taken the loan has died and they are not going to repay the dues and if he again come and demand them to repay the loan, they are going to finish him.

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When the principle borrowers failed to repay the loan and there was apprehension of the bank proceeding against him in his capacity as the surety, deceased was under tremendous stress and pressure. In these circumstances, on 04.07.2020 at 7.00 p.m. deceased left the house saying that he is going to Gulyapur. However he did not return. On the next day i.e. on 05.07.2020, when

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the complainant went to his old house, he found the deceased hanging from the ceiling of the shed.

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Based on the complaint, case was registered

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and investigation was taken up. During their statement, the witnesses namely Cws4 to 8 have spoken to about the involvement of accused No.1 and 2 instigating and abating the deceased to commit suicide by not repaying the loan and thereby creating a situation wherein having become helpless and apprehending that the bank may proceed against his land, the deceased chose to end his life. Despite the same, concerned police have filed charge sheet only against accused No.1 and they have not charge sheeted accused No.2 by showing his name in column No.13 of the charge sheet.

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The learned Magistrate has committed the case of the Court of sessions. During the trial, the learned Public Prosecutor filed application u/sec.193 Cr.P.C. to take cognizance against accused No.2 and proceed against him. However entertaining the objections filed by accused

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No.1, the trial Court has rejected the said application vide

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impugned order.

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Aggrieved by the same, the complainant is

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before this Court.

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In support of the petition and his arguments,

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learned counsel for petitioner/complainant has relied upon

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the following decisions.

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i. Kishun Singh and others V/s State of Bihar (Kishun Singh)¹ .

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ii. Nisar and another V/s State of U.P. (Nisar)² .

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iii. Dharam Pal and others V/s State of Haryana and another - dated 18.07.2013 (Dharam Pal)³ .

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iv. Balveer Singh and another V/s State of Rajasthan and another - dated 10.05.2016 (Balveer Singh)⁴

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v. Hardeep Singh V/s State of Punjab and others with connected cases (Full Bench 5 Judges) (Hardeep Singh)⁵ .

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vi. Jogendra Yadav and Others Vs.State of Bihar and Another (Jogendra)⁶

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1 (1993) 2 SCC 16

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2 (1995) 2 SCC 23

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3 (2014) 3 SCC 306

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4 (2016) 6 SCC 680

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5 AIR 2014 SC 1400

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6 (2015) 9 SCC 244

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Section 193 Cr.P.C. deals with taking

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cognizance of offences by the Sessions Court. It reads as follows:

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“193. Cognizance of offences by Courts of Session. – Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under this Code.”

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Before going to the merits of the case, it is necessary to refer to the decisions of the Hon’ble Supreme Court and the ratio laid down by it on this point.

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The facts in Kishun Singh are that in the evening of 27.02.1990 Umakant Thakur the younger brother of informant was attack by 20 persons including the appellants. The first information report included all their names. Injured Umakant Thakur was died in the hospital on the next day. The statements of witnesses implicated appellant also. However, charge sheet was filed

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only against accused Nos.1 to 8. The committal Magistrate committed the 18 persons to the Court of Sessions. An application was filed under Section 319 Cr.P.C to arraign the appellants. A Show cause notice was issued the appellants and after hearing them the application was allowed. Appellants filed criminal revision petition before the High Court, which came to be dismissed by relying on full Bench decision of it in Sk.Lutfur Rahman vs. State (1985 Crl.L.J. 1238 (Patna) Fb) appellants moved the Hon’ble Supreme Court in SLP.

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In the Hon’ble Supreme Court held that the scope of Section 319 Cr.P.C. which deals with the power of the trial Court to proceed against other persons appearing to be guilty of offence is only limited to post cognizance stage when complicity of persons, other than those names as offenders, come to light from the evidence recorded in the course of enquiry or trial and as such not exhaustive of the power to arraign more persons.

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16.1 It further held that Section 319 Cr.P.C. can be invoked by the Court having original jurisdiction as well as by the Court to which case committed for trial.

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16.2. The Hon’ble Supreme Court further held that the Sessions Court has jurisdiction, on committal of a case to it to take cognizance of the offence of persons not named as offender, whose complicity in the crime comes to light from the material available on record. Hence on committal u/sec.209 Cr.P.C. the Sessions Judge was justified in summoning, without recording evidence, the appellants not named in the police report u/sec.173 to stand trial along with those already named therein. Sessions Court having jurisdiction u/sec.193, mere exercise of power under a wrong provision (S.319) would not render its order invalid.

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16.3 On committal, the restriction on the Court of Sessions to take cognizance of an offence as a Court of original jurisdiction get lifted.

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16.4. The Hon’ble Supreme Court observed and held

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that “on plain reading of Section 193 Cr.P.C., as it presently stands, once the case is committed to the Court of Sessions by a Magistrate under the code, the restriction placed on the power of the Sessions Court to take cognizance of an offence as a Court of original jurisdiction gets lifted. On the Magistrate committing the case u/sec.209 to the Court of Sessions, the bar of Section 193 is lifted, thereby investing the Court of Sessions complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include summoning of the person or persons whose complicity in the commission of the crime can prima facie be gathered from the material on record.”

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The facts in Nisar Ahmed are that deceased

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Shakyin met with unnatural death. Her father filed complaint against her husband, his brother, sister-in-law and grand mother-in-law. However charge sheet was filed for the offences punishable u/secs.304B and 306 IPC only against the husband and grandmother in law. The other two accused (appellants) were non-charge sheeted. On

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committal to the Sessions Court, complainant moved an application u/sec.193 Cr.P.C. to summon them. It was opposed by the appellants on the ground that the Magistrate has not committed them and therefore, the Sessions Court cannot summon them. After considering the material placed on record, the Sessions Court allowed the application. The High Court also rejected the petition filed by the appellants. In the appeal filed by them the Hon’ble Supreme Court held that Section 319 Cr.P.C. could be pressed into service only when involvement of persons other than those arraigned as accused in the charge sheet comes to light during recording of evidence. Reiterating the decision of the Hon’ble Supreme Court in Kishun Singh, it was held that the Sessions Court after committal, the bar under Section 193 Cr.P.C. is lifted and the Court of Sessions can summon any person whose complicity in the commission of the crime can prima facie be gathered from the material on record.

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The facts in Dharam Pal are that an FIR was registered against one N and appellants for the p/u/s 307,

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323 r/w 34 of IPC. However, charge sheet was filed against N. On objections raised by the complainant, the Magistrate issued summons to the appellant to face trial. In this background, the following questions came for consideration of the Constitution Bench of the Hon’ble

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Supreme Court:

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i) Does the Committing Magistrate have any other role to play after (while) committing the case of the Sessions Court on finding from the police report that the case was triable by the Sessions Court?

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ii) If the Magistrate disagrees with the police report and is convinced that a case had also been made out for trial against the persons who had been placed in Column 2 of the report, does he have the jurisdiction to issue summons against them also in order to include their names, along with N, to stand trial in connection with the case made out in the police report?

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iii) Having decided to issue summons against the appellants, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Sessions Court to stand trial or whether h was justified in issuing summons against them without following such procedure?

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iv) Can the Sessions Judge issue summons under Section 193 CrPC as a court of original jurisdiction?

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v) Upon the case being committed to the Sessions Court, could the Sessions Judge issue summons separately under Section 193 CrPC or would he have

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to wait till the stage under Section 319 CrPC was reached in order to take recourse thereto?

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vi) Was Ranjit Singh, (1998) 7 SCC 149, which set aside the decision in Kishun Singh, (1993)2 SCC 16 rightly decided or not?

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18.1. Answering the said questions, the Hon’ble Supreme held that, as far as the first question is concerned, we are unable to accept the submissions made by Mr. Chahar and Mr. Dave that on receipt of a police report seeing that the case was triable by Court of Session, the Magistrate had no other function, but to commit the case for trial to the Court of Session, which could only resort to Section 319 of the Code to array any other person as accused in the trial. In other words, according to Mr. Dave, there could be no intermediary stage between taking of cognizance under Section 190(1)(b) and Section 204 of the Code issuing summons to the accused. The effect of such an interpretation would lead to a situation where neither the Committing Magistrate would have any control over the persons named in column 2 of the police report nor the Session Judge, till the Section 319 stage was reached in the trial. Furthermore, in the event, the Session Judge ultimately found material against the persons named in column 2 of the police report, the trial would have to be commenced de novo against such persons which would not only lead to duplication of the trial, but also prolong the same. (para 33)

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18.2 The view expressed in Kishun Singh's case, in our view, is more acceptable since, as has been held by this Court

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in the cases referred to hereinbefore, the Magistrate has ample powers to disagree with the Final Report that may be filed by the police authorities under Section 173(3) of the Code and to proceed against the accused persons dehors the police report, which power the Session Court does not have till the Section 319 stage. (para 34)

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18.3 In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.(para 35)

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18.4 This brings us to the third question as to the procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of

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Session if the same was found to be triable by the Session Court. (para 36)

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18.5 Questions 4, 5 and 6 are more or less inter-linked. The answer to question 4 must be in the affirmative, namely, that the Session Judge was entitled to issue summons under Section 193 Cr.P.C. upon the case being committed to him by the learned Magistrate. (para 37)

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18.6 Section 193 requires that first the Committing Magistrate must commit the case to the Sessions Court. Only after the case is committed, the Sessions Court can take cognizance of the offence exercising original jurisdiction. (para 38)

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18.7. This takes us to the next question as to whether under Section 209, the Magistrate was required to take cognizance of the offence before committing the case to the Court of Session. It is well settled that cognizance of an offence can only be taken once. In the event, a Magistrate takes cognizance of the offence and then commits the case to the Court of Session, the question of taking fresh cognizance of the offence and, thereafter, proceed to issue summons, is not in accordance with law. If cognizance is to be taken of the offence, it could be taken either by the Magistrate or by the Court of Session. The language of Section 193 of the Code very clearly indicates that once the case is committed to the Court of Session by the learned Magistrate, the Court of Session assumes original jurisdiction and all that goes with the assumption of such jurisdiction. The provisions of Section

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209 will, therefore, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge. (para 39)

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The facts in Balveer Singh are that appellants are the parents of one Abhimanyu Singh. He was married to Renu on 24.02.2014. She was found dead on 27.11.2014 within a month of 10 months of the marriage. The cause of death was asphyxia due to hanging. A FIR was lodged by her father (respondent No.2) for the offences punishable under Sections 498A and 304B IPC alleging that Renu was done to death by her husband Abhimanyu Singh and his parents (appellants) for not satisfying dowry demand. However charge sheet was filed only against Abhimanyu Singh for the offence punishable under Section 306 IPC.

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19.1. Before the Committal Magistrate, the respondent No.2 filed application for taking cognizance

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against appellants as well as Abhimanyu Singh for the offences punishable under Sections 304B and 498A IPC. It was dismissed vide order dated 11.03.2015 and the Committal Magistrate committed the case to the Sessions Court.

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19.2. Before the Sessions Court also respondent No.2 filed similar application. Vide order dated 08.10.2015, the learned Sessions Court took cognizance for the offences punishable under Sections 304B and 498A IPC and, in the alternative, Section 306 IPC against appellants and their Son i.e., Abhimanyu Singh and directed issuance to bailable warrant against the appellants.

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19.3. Aggrieved by the same, all the accused approached the High Court. Vide order dated 04.11.2015, the High Court remanded the matter to the Sessions Court with a direction to hear the parties and pass orders in the light of decisions of the Supreme Court in Dharampal.

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19.4. After the remand, Sessions Court accorded fresh hearing and passed order dated 08.12.2015, once again

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taking cognizance for the offences punishable under Sections 304B and 498A IPC and, in the alternative, Section 306 IPC against appellants and their Son i.e., Abhimanyu Singh.

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19.5. Once again appellants approached the High Court in Revision Petition, which came to be dismissed on 18.12.2015. Against the said order, the appellants approached the Hon’ble Supreme Court in

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Crl.A.No.253/2016.

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19.6. Vide order dated 10.05.2016, the Hon’ble Supreme Court was pleased to dismiss the Appeal. While discussing the power of the Sessions Court to take cognizance under Section 193 Cr.P.C., the Hon’ble Supreme Court envisaged two situations i.e., one; when the Magistrate plays a active role in taking /refusing cognizance before committing the case and second; when the Magistrate plays a passive role while committing the case. It held that in the first situation i.e., active committal, when the Magistrate has already exercised

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cognizance power, Sessions Court cannot take cognizance for a second time as a Court of original jurisdiction under Section 193 Cr.P.C. as cognizance of an offence can only be taken once. It can only exercise its revisional jurisdiction. On the other hand, in the second situated i.e., passive committal, since Magistrate has not exercised cognizance power, Sessions Court is free to exercise the same for the first time “as a court of original jurisdiction” under Section 193 Cr.P.C. It held that in exercise of power under Section 193 Cr.P.C. even a Committal Magistrate can take cognizance of the offence which is triable exclusively by the Court of Sessions before committing the case under Section 209 IPC.

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19.7. At paragraph 25 of the judgment, the Hon’ble Supreme Court by observing that the order of the Magistrate was revisable by the Court of Sessions and as the Sessions Court has provided opportunity to the proposed accused, refused to interfere under Article 136 of the Constitution.

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20. In Hardeep Singh and Jogendra the Hon’ble

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Supreme court discussed the power of the trial court under Section 319 Cr.P.C. to add new person as accused when during the course of recording of evidence the involvement of such person in the crime come to light. In Jogendra Yadav it was also held that when person is summoned under Section 319 Cr.P.C., question of discharging him would not arise.

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In the light of the ratio in the above decisions, it is necessary to examine whether the Sessions Court is justified in rejecting the application filed by the learned Public Prosecutor under Section 193 of Cr.P.C. to take cognizance against accused No.2-Bharatesh Laxman Patil, whose name is shown in column No.13 of the charge sheet (not-charge sheeted). From the complaint averments itself it is evident that the specific allegations are made against the accused No.2-Bharatesh Laxman Patil. It is definite

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case of the prosecution that accused No.1 and his fatherBheemappa Laxam Patil borrowed from the PNPS Bank. To

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the said loan, deceased stood as guarantor. Both accused No.1 and his father failed to repay the loan. In fact after the death of his father-Bheemappa Laxam Patil, accused No.1 transferred the property in the name of accused No.2 probably thinking that it would prevent from being attached by the Bank.

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Deceased was under tremendous pressure that if accused No.1 fails to repay the loan, Bank would proceed against his property and therefore, persistently requesting accused No.1 and his father to repay the loan. Even after the death of Bheemappa Laxam Patil, several times he approached the accused No.1 to repay the loan. However, both accused Nos.1 and 2 not only refused to repay the amount due, but also ridiculed the deceased to repay the loan or else go and die. Unable to bear the humiliation and the pressure of facing the consequence of Bank proceeding against his property, the deceased chose to end his life by hanging.

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In the complaint itself and also in statements of all the concerned witnesses, specific allegations are made that both accused Nos.1 and 2 are responsible for deceased committing suicide. Despite coming to know that besides the named accused, other persons are also involved and liable to answer the charge, if the Courts fails to exercise power under Sections 193 and 319 of Cr.P.C, as the case may be, the matter will slip into the hands of the investigating officers who may or may not send up for trial an offender, even if prima facie evidence exists, which may in a given situation cause avoidable difficulties to the trial Court. If the trial Court waits till the recording of evidence to proceed under Section 319 Cr.P.C., it is required to commence the proceedings afresh in respect of added accused and recall the witnesses.

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In the present case also, it appears only to see

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that charge sheet is not filed against the accused No.2, the

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investigating officer has placed on record further statements of complainant and the concerned witnesses,

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as though they are stating that accused No.2 has not committed any offence and on that basis has given him a clean chit and removed his name from column No.12 of the charge sheet and included his name in column No.13 of the charge sheet. While rejecting the application filed by the learned Public Prosecutor to take cognizance against the accused No.2 and issue summons to him, the learned Sessions Judge has not only ignored the provisions of Section 193, but also fail to appreciate the ratio of Hon’ble Supreme Court in the above cited decisions. Considering the decisions relied upon by the learned counsel for the complainant, it is a clear case for taking cognizance against accused No.2. Consequently, the impugned order is liable to be set-aside.

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In the result, the petition deserves to be allowed and accordingly, the following:

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ORDER

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Petition filed by the petitioner/complainant

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u/sec. 397 r/w Sec.401 of Cr.P.C. is allowed.

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The impugned order dated 31.12.2022 in S.C.No.5027/2021 on the application filed by the prosecution u/sec.193 Cr.P.C. on the file of the I Additional District and Sessions Judge, Bagalkot, to sit at Jamakhandi, is set-aside.

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The matter is remitted to the Sessions Court to issue show-cause notice to accused No.2 and after hearing him proceed to pass the orders in the light of the decisions of the Hon’ble Supreme Court and the observations made in this order.

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Sd/JUDGE

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CLK/KGK/AC List No.: 1 Sl No.: 6

Sri. Mahadev S/O. Basappa Savadi v. the State of Karnataka

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Sri. Mahadev S/O. Basappa Savadi v. the State of Karnataka

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Laxman Ramu Pujari Vs the State of Karnataka