Aswath vs State

K.N. Phaneendra, J.—Heard the learned counsel for the petitioners and also the learned HCGP. Perused the records.

The records disclose that the 2nd respondent herein has filed a private complaint in PCR No. 327/2012 for the offences punishable under Sections 324, 307, 341, 506 r/w. 149 of IPC.

The FIR reveals that the accused and the complainant belongs to the same family and there were some money transactions between them in respect of purchase and sale of sites.

The allegations made in the complaint in brief are that, on 22.07.2012 Accused Nos. 1 and 2 (Petitioner Nos. 1 & 2) were conducting Bhoomi Pooja in Site No. 2 situate at K.R. Nagar Town, Next to Kuvempu Block. At that time, the complainant (2nd respondent) along with his wife-Smt. Shashi Rekha came there and demanded the petitioners/accused persons for money, at that time, Accused No. 1 picked-up quarrel and suddenly abused the complainant and his wife and also assaulted the complainant with a club on his back, chest and on face. The 2nd accused also caught hold the color neck of the shirt of the complainant and assaulted him on several parts of his body. At that time, Accused Nos. 3 to 8 also came there and they also assaulted the complainant and his wife with a club and also threatened them with dire consequences of killing them and also outraged the modesty of the wife of the complainant. On these allegations the complaint came to be lodged.

The learned Magistrate at the initial stages when the complaint was filed, recorded that, the complainant was present and filed complaint; The office was directed to register the case as ''PCR''; For sworn statement by 17.12.2012. Subsequently, learned Magistrate on 30.11.2013, after perusal of the records, referred the case to P.S.I., K.R. Nagar Police Station, for investigation and report. The order sheet dated 27.12.2013 discloses that the PSI, K.R. Nagar Police Station has submitted the charge sheet and the Magistrate has taken cognizance of the offences and issued summons against the accused. Against that proceedings the present petition is filed seeking quashing of the entire proceedings.

Learned counsel for the petitioners has strenuously contended that once the Magistrate posted the case for recording the sworn statement of the complainant, it is deemed that he has taken cognizance of the complaint, therefore, he should have proceeded according to Sections 200 to 204 of Cr.PC and he has no jurisdiction to refer the complaint under Section 156(3) of Cr.PC to the police for investigation. Consequently, he has contended that the petitioners have purchased the property in which they were conducting Bhoomi Pooja about 16 years ago and till the date of incident in question, the respondents have not questioned the said purchase, but ultimately on the dote of Bhoomi Pooja, they came there and some quarrel took place. Taking advantage of the same, with a malafide intention, criminal complaint came to be lodged.

So far as the first ground urged before this court is concerned, though it is presumed that there is some indication in the order of the learned Magistrate that he has gone through the complaint averments and thereafter, he posted the case for sworn statement of the complainant, the order sheet discloses that the Magistrate has never taken cognizance of the complaint averments. However, he has committed irregularity in posting the case for sworn statement. But, subsequently, on 30.11.2013 it is specifically mentioned that he has gone through the records and on perusal of the complaint, he felt that the case has to be investigated by the police. Therefore, he referred the case to the PSI, K.R. Nagar Police Station for investigation. The order of the learned Magistrate at the first instance indicates that he has applied his mind to the contents of the complaint for limited purpose to ascertain whether any offence is constituted and thereafter, he posted the case for recording sworn statement. Therefore, when the Magistrate has not recorded the sworn statement, he is still at liberty to refer the complaint to the police for investigation. Therefore, I do not find any illegality though there is some irregularity committed by the Magistrate, in order to quash the entire proceedings.

So far as the second aspect is concerned, I do not want to give any finding on merits of the case. Prima facie reading of the complaint averments reveals that there is some scuffle, between the parties and specific allegations made in the complaint would constitute some offences and it is on the part of the accused to establish the malafides before the court at the time of hearing any application for their discharge or at the time of evidence. At this stage, when the complaint averments discloses the specific offences against the petitioners are sufficient to broadly constitute the offences, the court cannot interfere with such proceedings while exercising the powers under Section 482 of Cr.PC. Therefore, I do not find any strong reasons to interfere with the proceedings before the trial Court. However, the petitioners are at liberty to approach the trial Court, if advised, for their discharge by making necessary Application under Section 239 of Cr.PC.

With the above observations, the petition stands dismissed.