ANEESBA1( I A131)( TRASIIlI) lODE WA! E v. THE STATE OF KARNATAKA

(BY SRI. SANJAY S IKATAGERI. ADVOCATE) PETITIONERS -2- And: I.

2. THE STATE OF KARNATAKA THROUGH MARKET POLICE STATION. BELGAUM. REP. BY ADDL. SPP, HIGH COURT OF KARNATAKA, CIRCUIT BENCH, DHARWAD SMT. SHABANA WIO ANEES BAIG TODEWALE AGE: 32 YEARS, 0CC: HOUSEHOLD, R/O AZAD NAGAR. BELGAUM - 590 002. (BY SRI VINAYAK S.KULKARNI, HCGP. FOR Ri) Respondents THIS CRIMINAL PETITION IS FILED UNDER SECTION U/S 482 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER DATED 26.02.2010 IN CRL.RP.NO.469/2009 PASSED BY THE V-ADDL. DIST. & SESSIONS JUDGE, BELGAUM, AND THE ORDER DATED 07.03.2011 IN C.C.NO.1139/2007 PASSED BY THE JMFC Il-COURT, BELGUAM, WHEREIN THE THE PETITIONERS HEREIN FOR THE OFFENCES P/U/S 315, 316 R/W SEC. 34 OF IPC AND FURTHER U/S 498A AND SEC. 3 & 4 OF THE D.P. ACT. COGNIZANCE AGAINST TAKEN AS IS THIS PETITION COMING ON FOR DICTATING ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This petition is filed seeking to quash the proceedings in C.C.No. 1139/2007 pending on the file of JMFC, lI-Court, Belgaum. a 3

2. Respondent No.2 herein (hereinafter referred to as complainant) filed a complaint on 13.04.2006 before the Inspector of Police. Market Police Station, I3elgaum hk h t as registered by the police in Crime No.74/2006 for the offences under Sections 498A. 315. 316 r/w. Section 34 of IPC and Sections 3 and 4 of Down’ Prohibition Act. After registration of the complaint, the police conducted investigation and filed ‘B’ report before the Court. Thereafter, the complainant appeared before the Court below on 23.04.2007 and filed protest petition. Thereafter, the learned Magistrate recorded the sworn statement of the complainant on 02.06.2007. Based on the said statement and other materials, by order dated 02.07.2007, the learned Magistrate rejected ‘B’ report filed by the police and took cognizance of the offence against the petitioners and directed for registration of criminal case against them. Being aggrieved by the said order. petitioners approached the learned Sessions Judge, Belgaum and the learned Sessions Judge, Belgaum by order dated

15.03.2008 Crl.RP.No.334/2007 dismissed Crl.RP.No.334/2007, against which petitioners approached this Court in Crl.P.No. 1679/2008 connected with A 4 Crl.P.No.2351 /2008. However, since accused No.5 was out of station. he did not join in the petition before this Court. This Court by order dated 25.11.2008 observed complainant has not made it clear, as to how the petitioners Nos.2 to 6 could be held responsible and therefore, the order taking cognizance was set aside and matter was remanded to the learned Magistrate for re consideration of the complaint. sworn statement and proceed with the case in accordance with Section 204 of Cr.P.C. After remand, the complainant examined three more witnesses and requested the Court to pass an order for taking cognizance of the offence. The learned Magistrate by order dated 07.11.2009 again passed an order, taking cognizance of the offence under Section 498A IPC against accused No.1 and dismissing the complaint against accused Nos.2, 3. 4 and 6 and discharged them. As against order, complainant Crl.RP.No.469/2009 before the Sessions Judge. l3elgaum and the learned Sessions Judge by order dated 26.02.20 10 has set aside the order passed by the learned Magistrate dated

07.11.2009 and remanded the matter consideration of the same. The learned Magistrate again on 4 -a- remand, passed the order on 07.03.2011 taking cognizance of the offence against the petitioners, not only for the offences under Sections 498A, 315 and 316 r/w. 34 IPC but also for offences under Sections 3 and 4 of Dowry Prohibition Act against all the petitioners. The petitioners have challenged this order passed by the learned Magistrate in this petition and sought for quashing the complaint against them.

3. Heard Sri Sanjay S.Katageri, learned Counsel for the petitioners and Sri. Jagadish Patil, learned Counsel appearing for complainant and Sri V.S.ICulkarni, learned 1-ICOP for the first respondent State.

4. It is seen that this Court in Crl.RP.No. 1679/2008 has observed that there is no material to proceed against petitioners No.2 to 6 and that there is no clear reasons why petitioner Nos.2 to 6 could be held responsible for negligent acts of petitioner No.1 in taking care of his wife. This Court has further remanded the matter to the learned Magistrate for re-consideration of the complaint and the sworn statement and to proceed with the case in accordance with Section 204 Cr.P.C. But contrary to this direction, the complainant has 4 h further examined 3 witnesses which is not the scope of order passed by this Court and that Court has directed only to re consider the materials available as to ho petitioner Nos.2 to 6 could be held responsible. The learned Magistrate has not followed the direction of this Court strictly while allowing the complainant to adduce further evidence, which is not within his purview of Section 204 Cr.P.C. Recording of sorn statement of the complainant is provided under Section 200 Cr.P.C. and under Section 204 Cr.P.C examination of any witness is not contemplated. Therefore, the learned Magistrate has clearly acted beyond the scope of remand made by this Court.

5. On a careful scrutiny of the materials as it existed as on the date of remand by this Court, namely the complaint filed by the complainant before police and the siorn statement of the complainant does not clearly make out any case against petitioners No.2 to 5 (Accused Nos.3 to 6). Therefore, the learned Magistrate could not have overstepped in examining 3 more witnesses only in order to rope in those accused against whom this Court has already observed that I there is nn material in the nrder dated 25.11.2008. Under the circumstances. taking cognizance of the offence against petitioner Nos.2 to 5 (Accused Nos.3 to 6) is not only beyond the scope of remand but also a clear abuse of process of the Court. The learned Magistrate has no authority at all examine further itnesses when once this Court has considered the material while passing the order dated

25.11.2008.

6. I have gone through the entire materials on record and I find that petitioners 2 to 5 have been implicated ‘without there being any cogent basis and therefore, they have been wrongly proceeded against in this case. Interest of justice requires that the proceedings against petitioner Ios.2 to 5 (Accused Nos.3 6) quashed. Accordingly, C.C.No. 1139/2007 on the file of the JMFC. II Court. Belgaum is quashed in so far as petitioner Nos.2 to 5 (Accused Nos.3 to 6) are concerned. Petition filed by petitioner No. I (accused No.1) is dismissed. n’j