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Bhimrao And Ors vs Anuradha @ Sarita on 30 June, 2021

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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH

DATED THIS THE 30TH DAY OF JUNE, 2021

BEFORE

THE HON’BLE MR.JUSTICE RAJENDRA BADAMIKAR

CRIMINAL PETITION NO. 200297/2019
c/w
CRIMINAL PETITION NO. 200298/2019

In Criminal Petition No.200297/2019:

Between:

1. Bhimrao S/o Siddaji Handrale (Jadhav)
Age: 60 Years, Occ: Agriculture,
R/o: Ujalamb, Tq:Basavakalyan.

2. Shantabai W/o Bhimarao Handrale (Jadhav)
Age:40 Years, Occ:Household,
R/o Ujalamb, Tq:Basavakalyan.

3. Sidram S/o Bhimarao Handrale (Jadhav)
Age: 40 Years, Occ: Agri Advocacy,
R/o:Ujalamb, Tq: Basavakalyan,
Now at Arogya Nagar, Omerga.

4. Chanchal W/o Sidram Handrale (Jadhav)
Age:38 Years, Occ:Household,
R/o Ujalamb, Tq:Basavakalyan.
Now at Arogya Nagar, Omerga.

5. Sumna @ Tejabai W/o Suresh Suryavanshi,
D/o Bhimarao Handrale (Jadhav)
Age:38 Years, Occ:Household,
R/o: Arogya Nagar, Omerga.
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6. Suresh S/o Prabhu Suryavanshi,
Age:42 Years, Occ:Driver,
R/o: Arogya Nagar, Omerga.

7. Saroja D/o Bhimrao W/o Badasaheb,
Age: Major, Occ:Household,
R/o Ujalamb, Now at Bavkurwadi,
Tq:Akkalkot, Dist: Solapur.

8. Babasahed S/o Nagurao Mane,
Age: 42 Years, Occ:Agriculture,
R/o: Village Bavkurwadi,
Tq:Akkalkot, Dist: Solapur (M.S.)

9. Prabhawati W/o Bhimrao Handrale (Jadhav)
Age: 50 Years, Occ: Household,
R/o:Ujalamb, Tq:Basavakalyan
(2nd wife of accused No.2)

10. Datta S/o Bhimrao Handrale (Jadhav)
Age: 36 Years, Occ: Agriculture,
R/o:Ujalamb, Tq:Basavakalyan.

11. Shobha W/o Datta Handrale (Jadhav)
Age: 34 Years, Occ: Household,
R/o:Ujalamb, Tq:Basavakalyan.

12. Digambar S/o Bhimrao Handrale (Jadhav)
Age: 34 Years, Occ: Agrculture,
R/o:Ujalamb, Tq:Basavakalyan.

13. Sunita D/o Bhimrao Handrale (Jadhav),
Age: Major, Occ: Household,
R/o:Ujalamb, Tq:Basavakalyan.
… Petitioners

(By Sri.NandKishore Boob, Advocate)
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And:

Anuradha @ Sarita W/o Ishwar Handrale(Jadhav),
Age: 30 Years, Occ: Nil,
R/o: Ujalamb, Tq: Basavakalyan,
Now residing at Murum Tq: Omerga, (M.S.)
… Respondent
(By Sri.K.M.Ghate, Advocate)

This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash Annexure-A i.e., the proceedings in
P.C.No.51/2017 which is pending before Addl. Civil Judge and
JMFC Court, Basavakalyan and same is numbered as
C.C.No.03/2019.

In Criminal Petition No.200298/2019:

Between:

1. Priya W/o Ishwar @ Yash D/o Venkat Govind Bhosle,
Age: 25 Years, Occ: Pvt.Service,
R/o: Village Tururi (M.S.), Now at
R/o: Ujalamb, Tq:Basavakalyan.

2. Venkat S/o Govind Bhosle,
Age:50 years, Occ:Agriculture,
R/o:Village Tururi, Tq:Omerga (M.S.)

3. Sangita W/o Venkat Bhosle,
Age:48 years, Occ:Agriculture,
R/o:Village Tururi, Tq:Omerga (M.S.)

4. Prakash S/o Govind Bhosle,
Age:44 years, Occ:Agriculture,
R/o:Village Tururi, Tq:Omerga (M.S.)

5. Shilpa W/o Chandrakant Bhosle,
Age:35 years, Occ: Household,
R/o:Village Tururi, Tq:Omerga (M.S.)
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6. Ramesh S/o Govind Bhosle,
Age:42 years, Occ:Agriculture,
R/o:Village Tururi, Tq:Omerga (M.S.)

7. Harubai W/o Ramesh Bhosle,
Age:42 years, Occ: Household,
R/o:Village Tururi, Tq:Omerga (M.S.)
… Petitioners
(By Sri.Sanjay.A.Patil, Advocate)

And:

Anuradha @ Sarita W/o Ishwar Handrale(Jadhav),
Age: 30 Years, Occ: Nil,
R/o: Ujalamb, Tq: Basavakalyan,
Now residing at Murum Tq: Omerga, (M.S.)
… Respondent
(By Sri.K.M.Ghate, Advocate)

This Criminal Petition is filed under Section 482 of
Cr.P.C. praying to quash Annexure-A i.e., the proceedings in
P.C.No.51/2017 which is pending before Addl. Civil Judge and
JMFC Court, Basavakalyan and same numbered as
C.C.No.03/2019.

These Criminal petitions having been heard and
reserved for judgment on 23.06.2021, coming on for
‘pronouncement of orders’ this day, the court made the
following:

ORDER

These two petitions are filed to quash the proceedings in

P.C.No.51/2017 pending on the file of the Additional Civil

Judge and JMFC, Basavkalyan registered in CC No.03/2019.
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The Crl.P.No.200297/2019 is filed by accused Nos.2 to 14

while the Crl.P.No.200298/2019 is filed by accused Nos.15,

17, 18 and 23 to 26. As both these petitions are arising out of

the same crime number, they are clubbed and heard together

and common order is being passed.

2. The facts leading to the case are that the

respondent herein is the wife of the accused No.1 Ishwar and

their marriage was solemnized on 06.05.2007 in Hipparaga

Raon, Omerga Taluk and sufficient cash and gold was paid

during the marriage as per the request. It is alleged that

accused Nos.1 to 14 subjected the complaint to ill treatment

demanding additional dowry and on 10.10.2012 she was

driven out of matrimonial home of accused No.1 and since

then she is residing in her parental house. Accused No.1 is a

engineer by profession and serving in a private company at

Pune, drawing handsome salary of Rs.50,000/- p.m.,

3. It is further alleged that accused No.1 during the

subsistence of his marriage with complainant/respondent has

contracted second marriage with accused No.15 on
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05.06.2017 which is supported by accused Nos.2 to 14 and 16

to 26. The accused have knowledge that the complainant is

the legally wedded wife of accused No.1 and the marriage

being in existence, have performed the second marriage of

accused No.1 with accused No.15 by colluding with each

other. The marriage was performed in Suryanarayan Mangal

Karyalay in Tururi of Omerga Village. This fact was brought to

the notice of the complainant/respondent and she lodged a

private complaint against the accused. The private complaint

was registered by the learned Magistrate in PCR No.51/2017

and then he has recorded evidence of complainant and her

witness and then by order dated 22.12.2018, he issued

process against all the accused.

4. Being aggrieved by this order of taking cognizance

and issuance of process, the petitioners have filed these two

petitions for quashing the impugned order.

5. Heard the arguments advanced by the learned

counsels appearing for the petitioners and learned counsel for

the respondent in both the petitions and perused the records.
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6. Learned counsels for the petitioners contended

that the petitioners are innocent and have been falsely

implicated. It is also asserted that the respondent/complainant

had filed petition under Section 125 of Cr.P.C while petition for

divorce filed by accused No.1 is pending in Civil Judge, Senior

Division Court, Omerga.

7. It is further asserted that the sworn statement of

PWs.2 to 4 does not establish as to on which date the alleged

second marriage was performed. It is further asserted that

there is no sworn statement regarding performance of

mandatory rituals and it is contended that the sworn

statement of the witness was also not recorded on the same

date, though they were present and the sworn statement of

complainant and witnesses were recorded after three months

and there is delay which is against the statutory requirements.

It is further asserted that the Magistrate has recorded

examination in chief and there is no application of mind and as

such it is sought for allowing the petitions by quashing the

impugned order.

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8. The learned counsel for the respondent has argued

that the learned Magistrate has recorded the sworn statement

as per law and the second marriage itself is not disputed and

the accused No.1 has neither disputed the first marriage nor

the second marriage and as such the petitioners have no right

to challenge the same. He further argued that there is

sufficient material evidence to proceed against the petitioners

in the sworn statement and documents produced by

complainant and has sought for rejection of the petition.

9. Having heard the arguments and perusing the

records, it is evident from the records that the

complainant/respondent is claiming to be the first wife of the

accused No.1. The sworn statement further discloses that the

complainant has produced the invitation pertaining to second

marriage and photographs pertaining to first marriage. It is

necessary to note here that the complaint is under Section

200 of Cr.P.C and the learned Magistrate is required to comply

the provisions of Sections 200, 201, 202 and 204 of Cr.P.C

after taking cognizance as he has not opted for referring under

Section 156(3) of Cr.P.C. It is also necessary to note here that
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while recording the sworn statement there should be no

assistance to the complainant or his or her witnesses from any

third source including the learned counsel appearing for the

complainant and it is the Magistrate alone who shall examine

the complainant and witnesses without assistance of either

prosecutor or any learned counsel. This is mandate of the law

but in the present case things speak a different story. The

complainant was examined as PW.1 on 19.01.2018. It is

available in Annexure-C of the petition. Very interestingly it

was not a sworn statement but it was the examination in

chief. Even the other three witnesses PW.2-Vishnu, PW.3-

Sidrama and PW.4-Narasappa were examined on 03.02.2018,

11.04.2018 and 22.06.2018 respectively and there also the

examination in chief was recorded which was lead by the

learned counsel appearing for complainant. The sworn

statement cannot be recorded in the form of examination in

chief and it is only between the complainant and Magistrate

without the assistance of the prosecutor, but in the present

case in hand, things speak different as it is evident that the

learned counsel appearing for the complainant has lead the
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examination in chief of complainant and other three witnesses.

This completely vitiates the entire proceedings. In this context

the learned counsel for the petitioners have placed reliance in

the case of G.Krishnaprakash v/s The State of Karnataka

by S.P.P reported in ILR 2008 Kar 3569 wherein it is

observed as under:

…………………FURTHER HELD, The Magistrate, who
takes cognizance of complaint when examined upon
oath the complainant and the witnesses present, in
that process, there should be no assistance to the
complainant or his witnesses from any third source
and it is the Magistrate alone who shall examine the
complainant and his witnesses without the assistance
of either prosecutor or any counsel. ON FACTS,
HELD, On filing of protest petition, the contents of
the protest petition and the sworn statement made
before the Magistrate by the complainant and his
witnesses would alone form integral part of the
complaint and the Magistrate will have to proceed as
provided under Chapter-XV of the
Cr.P.C. – The trial
Court fell in error in adopting such procedure and
therefore, the trial Court will have to proceed with
the matter from the stage of filing of protest petition

– Impugned order is setaside.

10. This Court in the above decision has already

clarified that the Magistrate is required to examine the

complainant and witnesses on oath but that was not the fact
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in the case in hand. Hence, the entire proceedings required to

be set aside in this regard.

11. Learned counsel for the petitioners further

contended that though the witnesses were present, the

learned Magistrate did not record their statement on the same

day and three months time is taken and mandate of the law is

to record their statement on the same day. But Section 200 of

Cr.P.C. simply says that the Magistrate shall examine upon the

complainant and witnesses but it does not say that

examination shall be on the same day. In this regard he has

placed reliance on the decision reported in 2001 AIR SCW

1335 but it was not in respect of recording sworn statement

but it was pertaining to Section 309 of Cr.P.C. wherein there is

a bar for granting adjournment during trial and matter is

required to be heard day to day. In this context it is held that

acquitting murder accused on ground of want of evidence

inspite of witnesses being present on large number of dates by

not examining the witnesses amounts defeating the criminal

justice. But the said principles are not applicable to the case in

hand as this is pertaining to taking cognizance but Section 309
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of Cr.P.C. deals with the trial. However, the Magistrate has

committed a grave mistake by recording examination in chief

of complainant and witnesses without recording her statement

on oath as contemplated under Section 200 of Cr.P.C. Hence,

in view of the decision cited supra in the case of

G.Krishnaprakash v/s The State of Karnataka by S.P.P,

the proceedings are required to be set aside and matter

requires to be remitted back to the learned Magistrate to

record the sworn statement of complainant and her witnesses

without the assistance of prosecutor or the learned counsel for

the complainant and then after appreciating the sworn

statement to pass an appropriate order.

12. Accordingly, both the petitions needs to be allowed

and hence, I proceed to pass the following:-

ORDER

Crl.P.No.200297/2019 and Crl.P.No.20298/2019 are

allowed.

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The impugned order passed by the Additional Civil Judge

and JMFC Court, Basavakalyan in P.C.No.51/2017

(CC.No.03/2019) dated 22.12.2018 is set aside. The matter is

remitted back to the learned Magistrate to record statement of

the complainant and her witnesses on oath independently

without the assistance of the prosecutor or learned counsel for

the complainant and then pass appropriate order in

accordance with law by appreciating the same.

Original order shall be placed in Crl.P.No.200297/2019

and copy there off shall be placed in Crl.P.No.200298/2019.

Sd/-

JUDGE

NS

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