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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 18TH DAY OF APRIL 2017
BEFORE
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.2304 OF 2017
BETWEEN:
1. Riyaz Ulla Shariff,
S/o. Late Pachavalli,
Aged about 48 years,
Advocate,
R/at No.19, Adams Church Road,
Patalamma Layout,
Kadugodi,
Bengaluru-560 067,
Native of Lakkur Village,
Lakkur Hobli, Malur Taluk,
Kolar District-563 130.
2. Fiyaz Ulla Shariff,
Son of Late Pachavalli,
Aged about 50 years,
Agriculturist,
3. Abdul Pasha @ Babu,
Son of Late Shariff Shab,
Aged about 56 years,
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Petitioner No. 2 and 3
are residing at Lakkur Village,
Lakkur Hobli, Malur Taluk,
Kolar District-563 130.
… Petitioners
(By Shri. A. V. Ramakrishna, Advocate)
AND:
1. Nisar Ahamad,
Son of Ajeej,
Aged about 64 years,
R/at No.606, Janata Electricals,
Ammavarapete,
Near B.M.S. School,
Kolara, Kolara District-563 101.
2. State by Malur Police,
Rep. by State Public Prosecutor,
High Court of Karnataka,
High Court Building,
Bengaluru – 560 001.
… Respondents
(By Shri. Vijayakumar Majage, Addl. SPP for R.2)
This Criminal Petition is filed Under Section 482 of Code
of Criminal Procedure, praying that this Hon’ble Court may be
pleased to quash the Order dated 29.04.2016 passed by the Prl.
Civil Judge and J.M.F.C., Malur in C.C.No.488/2016
(CR.No.139/2010) in Annexure-A and also Quash the Private
Complaint in PCR No.69/2010 in Annexure-C.
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This Criminal Petition coming on for Admission this day,
the court made the following:
ORDER
Notice to respondent no.2 is dispensed with.
2. The learned Additional State Public Prosecutor is
directed to take notice to respondent no.2.
3. Heard the learned Counsel for the petitioners. It
transpires that petitioners 1 and 2 are said to be the brothers-in-
law of the first respondent. It transpires that the sister of the
petitioner has fallen out with the complainant, the first
respondent and had instituted a case against him for offences
punishable under Section 498A of the Indian Penal Code, 1860
and other provisions. As a counter blast to the same, the said
complainant is said to have instituted a proceeding against the
petitioners alleging that they had assaulted him and etc., and in
respect of which, there was investigation and a ‘B’ Report is
said to have been filed by the Police. The respondent had
thereafter filed a protest petition against the ‘B’Report and in
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the course of the sworn statement, a counsel is said to have
participated in recording the sworn statement. This, according
to the learned Counsel, is impermissible in view of a judgment
of the Division Bench in Naganagouda Veeranagouda Patil vs.
Malatesh H Kulkarni, ILR 1997 Kar.2091. Further, it is alleged
that though the complainant had named two witnesses to make
submissions on his behalf, he had brought persons other than
those named and this is the second argument by which the
proceedings are vitiated.
4. Insofar as the first infirmity, namely, that an advocate
could not have been permitted to demonstrate while recording
the sworn statement of the complainant appears to be covered
by a judgment of a Division Bench of this court in
Naganagouda Veeranagouda Patil vs. Malatesh H Kulkarni,
ILR 1997 Kar.2091. In that light of the matter, the recording
of the sworn statement by the Magistrate in the court below
with the assistance of a counsel is held to be bad in law and it is
accordingly quashed.
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Insofar as the further assertion that the witnesses other
than those named by the complainant have been examined may
not be said an infirmity which would vitiate the proceedings.
However, the court below is directed to record the sworn
statement in accordance with law and it would not be
permissible to have the assistance of the advocate for the
complainant in the matter at the stage of recording the sworn
statement.
With that observation, the petition is allowed.
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JUDGE
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