KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 14th DAY OF MARCH v. JAGANNATHAN CRIMINAL PETITION NO.8347/2010 BETWEEN

10. Shri Nagaraj Ravindra Jangi Age: 18 years, 0cc: Student R/o. Bellad Bagewadi — 591 305 Tauka: Hukeri, Dist: Belgaum

11. Smt, Shalawa Annappa Jangi Age: 43 years, 0cc: Household R/o. Bellaci Bagewadi — 591 305 Taluka: Hukeri, Dist: Belgaum

12. Smt. Kempawa Bhagawant Jangi Age: 48 years, 0cc: Household R/o. Bellad Bagewadi - 591 305 Taluka: Hukeri, Dist: Belgaum

13. Mahananda Bhagawant Jangi Age: 22 years, 0cc: Student R/o. Bellad Bagewadi — 591 305 Taluka: Hukeri, Dist: Belgaum

14. Smt. Shobha W/o. Ravindra Jangi Age: 38 years, 0cc: Household R/o. Bellad Bagewadi — 591 305 Taluka: Hukeri, Dist: Belgaum

15. Smt. Malawa W/o. Purandar Jangi Age: 43 years, 0cc: Household R/o. Bellad Bagewadi — 591 305 TaIuka: Hukeri, Dist: Belgaum

16. Meenakshi Purandar Jangi Age: 30 years, 0cc: Household R/o. Bellad Bagewadi — 591 305 Taluka: Hukeri, Dist: Belgaum

17.Smt. KalpanaW/o. DilipJangi Age: 30 years, 0cc: Household R/o. Bellad Bagewadi — 591 305 Taluka: Hukeri, Dist: Belgaum

18. Laxmi, D/o. Bhagawant Jangi Age: 20 years, 0cc: Student R/o. Bellad Bagewadi - 591 305 Taluka: Hukeri, Dist: Belgaum 4

19. Smt. Sharawa, W/o. Maruti Jangi Age: 75 years, 0cc: Agriculture R/o. Bellad Bagewadi — 591 305 Taluka: Hukeri, Dist: Belgaum (By Sri. M. G. Naganuri, Adv.) AND:

1. Shri Kumar Gurusidd Jangi Age: 41 years, 0cc: Service R/o. Bellad Bagewadi — 591 305 Taluka: Hukeri, Dist. Belgaum

2. State of Karnataka Represented by State Prosecutor Hon’ble High Court of Karnataka Circuit Bench, Dharwad. (By Sri. B. S. Kamate, Adv. for Ri PETITIONERS RESPONDENTS Sri. Anand K, Navalgimath, HCGP for R2) THIS CRIMINAL PETITION IS FILED U/S 482 CR.P.C SEEKING TO QUASH THE COMPLAINT FILED BY THE RESPONDENT IN PC NO.44/2007 AND THE ORDER OF ISSUE OF PROCESS PASSED BY THE CIVIL JUDGE IN C.C.NO.150/2010 THE OFFENCES PUNiSHABLE U/S 323 R/W 34 OF IPC AND CONFIRMED BY THE PRINCIPAL SESSIONS JUDGE, BELGAUM, IN CRL.RP NO.175/20 10. JMFC, NO.44/207) HUKKERI, (JR.DN.) & (PC FOR THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Heard petitioners’ Counsel Sri. M, G. Naganuri, Sri. B. S. Kamate, learned Counsel respondent No.1 and also the learned High Court Government Pleader for respondent No .2-State.

2. In this petition under Section 482 of Cr.P.C, the petitioners have prayed for quashing of the order of issuing process to the petitioners by the trial Court in C.C.No.150/2010 in respect of the offences punishable under Section 323 r/w Section 34 of IPC.

3. Submission of the petitioners’ counsel is that, a private complaint was filed by the respondent No.1 under Section 200 of Cr.P.C, alleging offences under Sections 323, 504, 506(2) r/w. Section 34 of the IPC. The allegation complaint was that,

13. 10.2007, while the complainant and his family were 6 in the farmhouse, all the accused/petitioners carrying the deadly weapons like sticks, sickle were came shouting at the complainant and others asking for share in the property and then the complainant was pulled by the accused No.2 Annappa and all other accused persons joined hands and assaulted complainant’s sisterin-1aws, wife, sister, mother and niece, with sticks thereby causing physical and mental agony and threatened them. Based on the said complaint, learned trial Judge directed the police to investigate and accordingly, the police filed ‘B’ report. Thereafterwards, the learned trial Judge issued process against petitioners based on the sworn statement of complainant. It is this order of the trial Court, which is called in question by the petitioners.

4. Submission of the learned Counsel petitioners Sri. M. 0. Naganuri is that, the trial Court’s order does not reveal as to whether the ‘B’ report was 7 accepted or rejected, but on the other hand even after noting that the ‘B’ report has been filed by the police, the learned trial Judge recorded the sworn statement of the complainant and based on that issued the process. This is impermissible in law because the trial Court ought to have accepted or rejected the ‘B’ report and only thereafterwards, the question of recording the sworn statement based upon the protest petition of the complainant arises. Moreover, the protest petition is not in a form of complaint and for this reason also the impugned order is liable to be set aside. One more submission made is that, the complaint does not indicate as to which of the accused person assaulted the complainant party and moreover, when all accused persons numbering 19 were all carrying deadly weapons like sticks and sickle and had assaulted the complainant group, obviously the complainant and his family members ought to have suffered serious injuries. 8 But in the sworn statement, there is no word spoken by the complainant about any injury being caused to him or any of his family members and for this reason also, the impugned require to be set aside. To support this submission, the learned Counsel relied on the rulings reported in ILR 1991 KAR 712, ILR 1998 KAR 3599 AND ILR 1987 KAR 994.

5. On the other hand, submission of Sri. B. S. Kamate, learned Counsel for the respondent No.1 is that, the impugned order of the trial Court does not require interference because it is based on the sworn statement of the complainant and Section 323 of IPC has been mentioned by trial Court, complainant and his family members were hurt by the action of the petitioners.

6. Having thus heard both sides and taking note of the defects pointed out by the petitioner’s Counsel, 9 first of all, the learned trial Judge does not mention in his order as to whether he has accepted the ‘B’ report or has rejected the ‘B’ report. Second error is that, the sworn statement of the complainant does not even whisper about any injury being caused or any pain having been caused to the complainant. The third aspect is, if all the accused persons numbering 19 persons had assaulted the complainant and his fainfly members with stick or other weapons, obviously some injuries have been caused to the complainant and others, but that is not the statement made by the complainant and therefore, it gives rise to doubt the very complaint allegations. The fourth error is that a civil dispute is pending between the parties in Civil Suit No.37/2007 and because of the said civil suit, present complaint has been made. k 10

7. In the decision referred to b the petitioner’s Counse’ in the case of Basappa Vs. State of Karnataka reported in ILR 1987 KAR 994, it has been held by this Court that a Magistrate cannot take cognizance on the basis of protest memo, particularly when the protest memo is riot in the form of complaint and there are no allegations constituting any offence in the protest memo. In the decision reported in ILR 1991 KAR 712 in the case of Mrs. Nina Nargis Devaud Vs. Mrs. Farida 0. Devacha, it is held by this Court that, when the incident had happened involving number of persons, the names of the witnesses should have been furnished by the complainant and apart from that, the Court also should have examine the complainant out as to whether it would be necessary to continue the proceedings, particularly where the civil suit is also pending between the parties. 11

8. In the case of Pepsi Foods Ltd., and Another Vs. Special Judicial Magistrate and Others reported in ILR 1998 KAR 3599, the Apex Court has held that Magistrate has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereto and has to ascertain as to whether that would be sufficient for the complainant to succeed in bringing home the charge against accused.

9. Applying the aforesaid principles of law to the case on hand, it is rather doubtful as to the complaint allegations can be believed at all, because in the sworn statement the complainant does not mention about any injury being caused to any one of the complainant party. But the complaint reveals that all the accused numbering 19 said to have assaulted the complainant and others with deadly weapons. Therefore, in the 12 e absence of even one medical certificate being produced indicating any kind of injury being caused to any of the complainant party and nobody except the complainant coming and making the sworn statement and the police also having filed ‘B’ report on earlier occasion, in my view, when the civil suit is pending between the very same parties, continuation of criminal petition in the light of the aforesaid defects in the complainant’s case, would be not in the interest of justice.

10. For the above reasons, the criminal petition is allowed and the impugned order of Magistrate issuing summons to the petitioners and all the proceedings thereto stands quashed. Sd! JUDGE