SRI SATHISH POOJARY v. STATE OF KARNATAKA

REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU - 01.

2. SMT. GEETHA W/O SANJEEVA KHARVI AGED ABOUT 35 YEARS, R/AT NEAR WAKWADI PANCHAYAT OFFICE, WAKWADI VILLAGE KUNDAPURA TALUK, UDUPI DISTRICT - 576 201. (BY SMT. SOUMYA R., HCGP FOR R1; R2 - SERVED) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET FILED IN C.C.NO.1680/2018 AS …RESPONDENTS - 2 - NC: 2026:KHC:29126 CRL.P No. 3656 of 2019 HC-KAR PER ANNEXURE-C WHICH IS FILED BY 1ST RESPONDENT POLICE WHICH IS PENDING FOR CONSIDERATION BEFORE THE ADDITIONAL CIVIL JUDGE AND J.M.F.C., KUNDAPURA IN SO FOR AS THE PETITIONER IS CONCERNED. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI ORAL ORDER Challenging charge sheet filed and entire proceedings in CC no.1680/2018 on file of Additional Civil Judge and J.M.F.C., Kundapura, this petition is filed.

2. Sri Nagaraja Hegde, learned counsel for petitioner submitted that on a complaint filed by respondent no.2 (complainant) on 17.05.2018 at 8:45 p.m., Kundapura Police registered Crime no.72/2018 against Hemavathi Poojary, Mookambika, Nataraj (accused no.1 to 3) as well as petitioner herein (accused no.4). In complaint, it was alleged that when complainant went to house of accused no.1 with request to vacate and hand over possession, accused no.1 to 3 assaulted complainant and drove him out of house. At that time, petitioner who was present instigated accused no.1 to 3 to - 3 - NC: 2026:KHC:29126 CRL.P No. 3656 of 2019 HC-KAR assault complainant. It was alleged that gold ornaments were also taken away from house. On completion of investigation, charge sheet as per Annexure-C was filed on 17.05.2018. It was submitted, offence alleged against petitioner were under Sections 354, 114 read with Section 34 of Indian Penal Code, 1860 ('IPC').

3. It was submitted, due to lack of ingredients charge of offence under Sections 354 and 114 of IPC could made to be out therefore continuation of proceedings would amount to abuse of process of Court and sought for quashing. Elaborating same, it was submitted, both in complaint and charge sheet merely presence of petitioner was mentioned, without explanation. Further absence of allegation of taking away of jewellery from house in charge sheet would indicate that complaint was based on wholly false allegations and required to be quashed.

4. It was submitted, there were no allegations of petitioner having committed offence punishable under Section 354 of IPC and petitioner was charged under Section 114 of IPC as an abettor. It was submitted, 'abetment' as defined in IPC - 4 - NC: 2026:KHC:29126 CRL.P No. 3656 of 2019 HC-KAR would contemplate intent preceding incident. But in complaint or charge sheet, there was no mention of any antecedent incident of planning or conspiracy to commit offence, in order to substantiate allegation of abetment against petitioner. It was submitted, on basis of bare allegation, charges could not be substantiated, especially as there was no reason assigned for presence of petitioner at incident spot.

5. In support of his submission, learned counsel relied on decision of High Court of Gujarat in case of Ranchhodbhai Manjibhai Chovatia v. Pravinbhai Kalubhai Italiya, reported in 2016 SCC OnLine Guj 398, wherein it was held that Section 114 will not apply unless prima facie material established abetment prior to commission of offence and abettor's presence at such commission. Based on same, it was submitted that continuation of proceedings in absence of essential ingredients for offences alleged would amount to abuse of process of law and sought for quashing.

6. On other hand, Smt.Soumya R., learned HCGP for respondent no.1 - State opposed petition. It was submitted, allegations against petitioner in complaint as well as in charge - 5 - NC: 2026:KHC:29126 CRL.P No. 3656 of 2019 HC-KAR sheet would meet requirements of Section 114 of IPC and there was no merit in challenge.

7. Heard learned counsel and perused material on record.

8. This petition is under Section 482 of CrPC challenging charge sheet and proceedings in CC no.1680/2018 insofar as petitioner (accused no.4) for offences punishable under Sections 354 and 114 read with Section 34 of IPC. As rightly submitted, is no allegation of petitioner committing offence punishable under Section 354 of IPC. Charge against petitioner is mainly for offence punishable under Section 114 of IPC. Ratio laid down in Ranchhodbhai's case (supra) is that charge sheet under Section 114 will not attract unless there is material to indicate abetment prior to commission of offence and presence of abettor at time of commission.

9. Perusal of complaint and charge sheet reveals allegation not only of presence but also of instigation. Contention that an act of abetment should precede incident would appear far-fetched as next question that would arise if - 6 - NC: 2026:KHC:29126 CRL.P No. 3656 of 2019 HC-KAR prior then, how far prior and also entail deep analysis of words used in complaint and charge sheet instead of awaiting trial to clarify same. Such contention in a petition for quashing under Section 482 of CrPC would not be available. Even other contention that there is no explanation for presence of petitioner at spot of incident and his presence is shown only to implicate him, would also not hold water at this stage, as prosecution has recorded statement of complainant and other witnesses who have stated about presence and utterances as would constitute instigation. Whether act of instigation was prior or simultaneously to act of offence would require trial and cannot be considered at this stage.

10. In view of above, no grounds to interfere, petition stand dismissed. However, reserving liberty to petitioner to urge contentions at time of disposal of main matter. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 18