T.M. Kotraiah and Others vs State of Karnataka

Budihal R.B., J.—Though the matter is listed for admission, with the consent of both the sides it is taken up for final disposal.

This is the petition filed by petitioners-Accused Nos. 3 and 4 under Section 391(1) read with Section 401 of Cr.P.C., requesting the Court to allow the application filed under Section 227 of the Cr.P.C. and to discharge them from the proceedings.

The brief facts of the prosecution case are that the complainant filed a complaint on 07.07.2013 alleging that on the same day at about 1.00 p.m. the accused Nos. 1 and 2 came to the house of complainant for asking laptop and thereafter at about 5.30 p.m., they again came to the house of the complainant and accused No. 1 with an intention to murder the complainant tried to assault the complainant on his head with Matchu and as the complainant has taken his head towards side he sustained injuries on his left shoulder and at that time accused No. 2 enraged accused No. 1 to take away his life and thereafter neighbourers pacified quarrel and accused Nos. 3 and 4 i.e. present petitioners have abetted accused Nos. 1 and 2 for commission of the alleged offences. Hence, on the basis of the said complaint, the respondent-police have registered a case in crime No. 184/2013 for the offences punishable under Sections 109, 307 R/w. 34 of IPC.

After conducting and completing investigation, the Investigating Officer filed a charge sheet against accused Nos. 1 and 2 so also the present petitioners i.e. accused Nos. 3 and 4. This matter was committed to the District Court and it was registered in Sessions Case No. 31/2014. Petitioners and accused Nos. 1 and 2 have filed an application under Section 227 of Cr.P.C. for discharge of petitioners from the said proceedings. The respondent-police have filed objection statement. But the learned Sessions Judge without considering the material on record and the contention taken up by the petitioners in the application, so also the charge sheet materials, was pleased to reject the application filed by the petitioners vide order dated 07.04.2015 at Annexure-A. Being aggrieved by the said orders, the petitioners who are accused Nos. 3 and 4 before the trial Court are before this Court.

Heard the arguments of the learned counsel for the petitioners-Accused Nos. 3 and 4 and also the learned HCGP for the respondent-State.

Learned counsel for the petitioners/accused Nos. 3 and 4 made the submission that, perusing the entire materials placed on record the prosecution has not made the prima facie case against the present petitioners that they have instigated accused Nos. 1 and 2 in committing the alleged offences. He also submits that there is no such material collected even during the course of investigation and in spite of these things the learned Sessions Judge while considering the application has not appreciated all these things and simply proceeded to reject the application holding that there is prima facie case against the present petitioners. Hence, he submitted to allow the petition.

Per contra, learned HCGP made the submission that, looking to the materials placed on record, the Investigating Officer has collected materials during the course of investigation which go to show that the present petitioners also involved in the case and they have instigated accused Nos. 1 and 2 in committing the alleged offences. Therefore, they are also liable to face criminal proceedings for the alleged offences punishable under Sections 109 of IPC. Hence, he submitted that whatever order passed by the learned Sessions Judge is right and it is justified and there are no grounds for this Court to interfere into the order of the trial Court. Hence, he made the submission that there is no merit in the petition and the same is to be dismissed.

I have perused the averments made in the bail petition, also the FIR, Complaint and the entire order sheet of the trial Court so also the order dated 07.04.2015 which is challenged in this petition. I have also perused the other charge sheet materials produced along with the petition. Looking to the complaint in this case, one Sri G. Ramesh S/o. Late J. Shivanangouda lodged a complaint on 07.07.2013. I have perused the averments of the entire complaint. Looking to these complaint averments the allegations are against accused Nos. 1 and 2 in this complaint and no where it is mentioned specifically by the complainant that accused Nos. 3 and 4 were also present along with them and they instigated accused Nos. 1 and 2. I have also perused the further statement of the complainant recorded by the Investigating Officer during investigation and it was on 17.07.2013. That is after lapse of 10 days the further statement of the complainant was recorded. Even perusing this further statement of the complainant again there is no mention about the involvement of the present petitioners in the commission of the alleged offence in any manner. Even, in the further statement also there was no mention at least that these petitioners i.e. accused Nos. 3 and 4 instigated accused Nos. 1 and 2 in committing the alleged offences. The complaint and the further statement of the complainant is the foundation and base of the prosecution case about the persons who are involved in committing the alleged offences. The investigation is on the basis of the complaint itself. When in the complaint and in the further statement of the complainant there is no whisper about the involvement of the present petitioners that they either assaulted the complainant or instigated accused Nos. 1 and 2, the learned Sessions Judge ought to have considered these aspects of the matter while considering the application filed under Section 227 of the Cr.P.C. seeking their discharge from the proceedings. The stage of hearing before charge or hearing the application under Section 227 and framing the charge against the accused persons is very important stage in the criminal proceedings which substantially affects the liberty of the accused persons. Therefore, the Court should not take the materials or the aspects lightly and it has to apply its judicial mind to all available materials on record and should appreciate whether really the applicants/accused are entitled for discharge from the said proceedings or not. It is not done in this case and considering the materials placed on record, I am of the opinion that the trial Court simply stated that accused Nos. 3 and 4 have abetted accused Nos. 1 and 2 in commission of the alleged offences without referring to the complaint averments and the further statement of the complainant. In that view of the matter I am of the opinion that, the materials placed on record clearly go to show that the petitioners/accused Nos. 3 and 4 have made out a case for discharge from the proceedings.

Therefore the order passed by the learned Sessions Judge is not sustainable in law. Petition is allowed and the said order of the learned Sessions judge as it relates to petitioners/Accused Nos. 3 and 4 is set aside and they are ordered for discharge from the proceedings.