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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