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Riyaz Ulla Shariff vs Nisar Ahamed on 18 April, 2017

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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.

Sd/-

JUDGE

nv

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