'Reckless' Order Of Magistrate Taking Cognizance Of Rape Offence Despite Lack Of Allegations : Karnataka HC Quashes Proceedings

The Karnataka High Court recently quashed a criminal complaint in which a Magistrate took cognizance of the offence of rape on a complaint filed by the estranged wife of the accused, despite there being no allegations of rape against the accused.The complainant had filed the complaint against several persons, including the Pontiff of Ramachandrapura Mutt, with various allegations including rape. The husband of the complainant was also one of the accused. The Magistrate took cognizance of the offence of rape against the husband. Aggrieved, the husband Manjunath Hebbar approached the High Court to quash the proceedings. Allowing the petition, the High Court observed, "Neither the complaint, the investigation nor final report speaks of Section 376 of IPC or offence of rape against the petitioner. Therefore, in the light of the facts at hand as considered herein and the judgments of the Apex Court, the order taking cognizance on the face of it is reckless and suffers from non-application of mind." A single judge bench of Justice M Nagaprasanna while allowing the petition filed by Hebbar said, "All the points that have arisen for consideration are held against the prosecution viz., delay in lodging the FIR; final report being filed by an officer who was not in-charge of the Police Station; act of the learned Magistrate in taking cognizance of the offence which bears no application of mind and fact that the complaint itself not linking any event narrated to the offences alleged." It added, "In my considered view that such allegations cannot enmesh the petitioner for continuance of trial, as it would without doubt degenerate into harassment and be an abuse of the process of law, resulting in miscarriage of justice. Therefore, this is a fit case where this Court has to exercise its jurisdiction under Section 482 of the Cr.P.C. and obliterate entire proceedings against the petitioner."The Court clarified in its order that it has dealt with only the proceedings against the petitioner Manjunath Hebbar and has not dealt with the other accused. "The trial, if any, pending against any other accused shall be considered by the competent Court without being influenced by the observations or the findings in the case at hand", the Court said. Case Background: The accused and the victim got married at Sirsi, on 27.05.2009. The petitioner claimed the 2nd respondent on 18.03.2012 left the marital house and started to live away from him. Following which she issued a legal notice in 2014 seeking maintenance. A reply was sent to it. Notwithstanding the same, the complainant filed a petition under Section 125 of the Cr.P.C. seeking maintenance from the hands of the petitioner. The petitioner filed objections to the petition, after which the petitioner filed a petition under Section 9 of the Hindu Marriage Act seeking restitution of conjugal rights. Countering this, the complainant filed a petition in M.C.No.25 of 2016 seeking annulment of marriage with the petitioner. On issuance of notice in the petition filed by the complainant seeking a divorce in M.C.No.25 of 2016, the petitioner filed a civil petition in C.P.No.141 of 2018 seeking transfer of petition filed by the petitioner and during the pendency of consideration of the said petition, the complainant registers a complaint on 29.08.2015. After registration of the crime, the police investigated the matter and filed a final report/charge sheet for offences punishable under Sections 323, 376, 376(2)(f)(i)(n), 498A and 109 of the IPC. The Magistrate took cognizance of the matter and issues the process on 27.09.2018. Following which the petitioner approached the court. By an interim order, the court had stayed further proceedings. Petitioner submissions: Senior Advocate CV Nagesh and Advocate S.Rajashekar appearing for petitioner contended that, "Entire proceedings right from the word go is a rude shock, to known canons of law as every stage of the proceedings are vitiated on account of it being blatantly contrary to law." Further, it was submitted there is a delay in lodging the complaint and registration of FIR have vitiated the entire proceedings, as there is admittedly, a delay of 9 months in registration of complaint. The cognizance of the offence taken by the learned Magistrate of the offences alleged is without application of mind. It was also said that, "The learned Magistrate takes cognizance under Section 190 of the Cr.P.C., for offences punishable under Sections 323, 376, 498A and 109 of the IPC without there being any allegation of the said nature against the petitioner." It was also contended that the Magistrate grossly erred in taking cognizance of the offence on the basis of a final report submitted by the CID who admittedly is not an officer in–charge of the police station. The issuance of process is violative of section 204 of the Criminal Procedure Code (CrPC). Victims submissions: ...

'Reckless' Order Of Magistrate Taking Cognizance Of Rape Offence Despite Lack Of Allegations : Karnataka HC Quashes Proceedings

Mustafa Plumber

Tags