IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 18TH DAY OF SEPTEMBER, 2019

BEFORE

THE HON’BLE MR.JUSTICE B.A. PATIL

CRIMINAL REVISION PETITION NO.1033/2019

BETWEEN:

1. Harish Marian Fernandes,

S/o Mr. Sebastian Fernandes,
Aged 46 years,
2. Pooja R D/o Rudraiah,
Aged 23 years,
3. Premakumari D/o Muniyappa,
Aged 25 years,

All R/at No.16, Albert Street,

Richmond Town,
Bengaluru – 560025.
...Petitioners
(By Smt. P. Anu Chengappa, Advocate)

AND:
State of Karnataka,
Ashoknagar Police Station,
Commissariate Road,
Bengaluru – 560025.
Rep by its SPP
High Court Building,
Bengaluru – 560001.
... Respondent
(By Sri M. Divakar Maddur, HCGP)
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This Criminal Revision Petition is filed under

Section 397 read with Section 401 of Criminal
Procedure Code praying to set aside the
Spl.C.C.No.532/2018 on the file of the learned L
Additional City Civil and Sessions Judge, Bengaluru
City Civil Court and after hearing the petitioners and
respondent the impugned order dated 03.07.2019
passed by learned L Additional City Civil and Sessions
Judge, Bengaluru City Civil Court.

This Criminal Revision Petition coming on for

Admission, this day, the Court made the following:

ORDER

This petition is filed by the petitioners-accused

Nos.1 to 3 being aggrieved by the order passed by L

Additional City Civil and Sessions Judge, Bengaluru in

Special Case No.532/2018 dated 03.07.2019.

2. I have heard the learned counsel for the

petitioners-accused Nos.1 to 3 and learned High Court

Government Pleader for respondent-State.

3. The gist of the complaint is that accused No.1

on 03.03.2017 at about 6.00 p.m., in Richmond town,

because of the family dispute he came to the house and

destroyed the documents by taking them to terrace by

 -3-

burning them and at that time when C.W.5 tried to save

the same, the accused abused him in filthy language

and used force against him. When C.W.5 came to

rescue, accused Nos.2 and 3 touched the private parts

of C.W.6 and sexually assaulted him and on the basis of

complaint, a case has been registered in Crime

No.105/2017 and after investigation the charge sheet

has been filed.

4. Accused Nos.1 to 3 appeared before the Court

below and filed an application for discharging from the

offences levelled against them. The said application was

objected by the prosecution and after hearing the

learned counsel for accused and the learned Public

Prosecutor the trial Court rejected the said application.

Being aggrieved by the same, the petitioners-accused

Nos.1 to 3 are before this Court.

5. It is the contention of the learned counsel for

the petitioners that the Court below has not applied its
 -4-

mind and has deliberately not discharged the accused.

A plain reading of the application and other material,

clearly goes to show that earlier a complaint has been

filed under Section 107 of Cr.P.C. and the mother of

accused No.1 also filed an application under the

maintenance of Welfare of Parents and Senior Citizens

Act and only with an intention to harass the petitioners-

accused so also the present complaint has been filed. It

is her further contention that the complaint has been

filed on 03.03.2017 and originally it was only for the

offences punishable under Sections 323, 354, 435, 504,

read with Section 34 of IPC, subsequently after one and

half years the charge sheet has been filed and at that

time the provisions of Section 8 of Protection of Children

from Sexual Offences (POCSO) Act, 2012 (hereinafter

called as ‘Act’ for short) has been included only with an

intention to harass. She further submitted that the

charge sheet has also been filed belatedly after one and

half years. It is her further submission that when the

 -5-

alleged offences were taken place, the witnesses were

present and in their evidence they have given

inconsistent statement before the Police. It is her

further contention that the statement of minor victim

has been recorded under Section 164 of Cr.P.C. only on

28.09.2017. She further submitted that as per Section

7 of the Act, in order to constitute an offence the said

Act must be done with sexual intent, but either in the

complaint or in any of the statement recorded by the

Police including the statement recorded under Section

164 of Cr.P.C. before the Magistrate, no such intention

has been shown by the complainant. In the absence of

any such intention under the provisions of Section 8 of

the Act does not attract and it is not a fit case to charge

under Section 8 of the Act. It is her further submission

that insofar as the other offences are concerned, there is

no material to come to the conclusion that the accused

persons have committed the alleged offences. She

further submitted that the trial Court without

 -6-

considering the said aspect has dismissed the

application. It is her further contention that earlier

some stringent conditions have been imposed at the

time of releasing the accused on bail, subsequently

when the charge sheet has been filed, for modification of

the conditions an application was filed and the Court

below modified the conditions only with an intention to

harass the petitioners-accused. The subsequent

application has been also filed for including the POCSO

Act and cancellation of the bail. On these grounds, she

prayed to allow the petition and discharge the accused.

6. Per contra, the learned counsel appearing on

behalf of the respondent-complainant vehemently

argued and submitted that the accused No.1 with an

earlier grudge intending to take revenge, had come to

the house and broke open the door and took the papers

of the office to the terrace and burnt them. He further

submitted that the complaint itself discloses the fact

that the accused Nos.2 and 3 who have touched the

 -7-

private part of the victim with an intention to embarrass

and getting him to move away. He further submitted

that there is a prima-facie material made out as against

the accused persons for involving in the above said

offence. He further submitted that full pledge trial is

required to come to the conclusion whether accused

persons are involved in the alleged offences are not. He

further submitted that the prima-facie material discloses

that accused persons are involved and even the trial

Court after considering the fact, the statement of the

witnesses has dismissed the application. The minor

victim has also deposed before the learned Magistrate

under Section 164 of Cr.P.C about the act done by

accused Nos.2 and 3. On these grounds, he prayed to

dismiss the petition.

7. I have carefully and cautiously gone through the

submissions made by the learned counsel appearing for

the parties and perused the records.

 -8-

8. Learned counsel for the petitioners and learned

High Court Government Pleader has also made available

the documents, I have given my thoughtful

consideration to the said documents. It is the

contention of the learned counsel for the petitioners-

accused Nos.1 to 3 that there is no prima-facie material

as against the accused persons to proceed and there is

ample material to show that earlier complaints have

also been filed and only with an intention to harass,

such a false complaint has been filed against

petitioners-accused. I am conscious of the fact that the

earlier complaints and pending cases is an admitted fact

and it cuts both the edges, some times it can be used as

a weapon and it can also be used as a shield. Only on

the ground that the earlier complaints are there and

only on the basis of that it cannot be inferred that the

present complaint is a false complaint has been

registered, cannot be considered at this juncture, that

too when the case is at a preliminary stage. It is well

 -9-

proposed proposition of law by the Hon’ble Apex Court

and in catena of decisions of the Hon’ble Apex Court

while considering the question of framing of a charge

the Court has undoubted power to shift the weight of

the evidence for a limited purpose to find out whether

the prima-facie case is made out as against the accused

or not. The test to determine prima-facie case would

naturally depend upon the facts of each case and

straight jacket formula or universal law can be applied

in this behalf. This proposition of law has been laid

down by the Hon’ble Apex Court in the case of Union of

India Vs. Prafulla Kumar Samal and Another,

reported in (1979)3 SCC 4 at paragraph 10, that it has

been observed as under:

“10. Thus, on a consideration of the

authorities mentioned above, the following
principles emerge:

(1) That the Judge while considering the

question of framing the charges under Section
227 of the Code has the undoubted power to
 - 10 -

sift and weigh the evidence for the limited

purpose of finding out whether or not a prima
facie case against the accused has been
made out:

(2) Where the materials placed before the

Court disclose grave suspicion against the
accused which has not been properly
explained the Court will be, fully justified in
framing a charge and proceeding with the
trial.

(3) The test to determine a prima facie case

would naturally depend upon the facts of
each case and it is difficult to lay down a rule
of universal application. By and large
however if two views are equally possible
and the Judge is satisfied that the evidence
produced before him while giving rise to some
suspicion but not grave suspicion against the
accused, he will be fully within his right to
discharge the accused.

(4) That in exercising his jurisdiction under

Section 227 of the Code the Judge which
under the present Code is a senior and
 - 11 -

experienced Judge cannot act merely as a

Post office or a mouth-piece of the prosecution,
but has to consider the broad probabilities of
the case, the total effect of the evidence and
the documents produced before the Court,
any basic infirmities appearing in the case
and so on. This however does not mean that
the Judge should make a roving enquiry into
the pros and cons of the matter and weigh the
evidence as if he was conducting a trial.”

9. On close reading of the said paragraph, it

discloses that where the material placed before the

Court discloses a suspicion against the accused which

has not been properly explained, the Court will be fully

justified in framing the charge and proceeding with trial.

But if there is a grave suspicion against the accused,

then the Court can discharge the accused for the

offences levelled against him.

10. Keeping in view the principle laid down in the

above decision, if the factual matrix are looked into with

reference to the contention of the learned counsel for

 - 12 -

the petitioners-accused Nos.1 to 3 that there is no

material to frame the charge as against the accused. I

have closely gone through the charge sheet and other

materials which have been made available in this

behalf. Though the witnesses have spoken with regard

to touching of a private part of minor child Sri. Kumar

Hiren Farnandes even in his 164 statement and 161

statement and in the complaint lodged on 03.03.2017,

reference has been made in this behalf. Even assuming

that the said act has been done, but as per Section 7 of

the Act in order to constitute an offence there must be

sexual intent which he does any such act like touching

the vagina, penis, anus or breast of the child or makes

the child to touch the vagina, penis, anus or breast of

such person, then under such circumstances it will be

punishable under Section 8 of the said Act.

11. On close reading of the entire materials which

have been produced including the complaint filed on

03.03.2017 it has been only stated that the two girls

 - 13 -

clandestinely touched his private part with an intention

to embarrass and getting him to move away, that itself

show that no sexual intention was existing at the

relevant time. Under the said facts and circumstances,

I am of the considered opinion that there is no material

to frame the charge as against the petitioners-accused

Nos.1 to 3 under Section 8 of Act. Insofar as the other

offences are concerned, I have given my thoughtful

consideration to the statement of witnesses and other

materials. C.Ws.5, 6 and other witnesses have clearly

stated about the overt acts of accused Nos.1 to 3 and in

this behalf there appears to be prima-facie material as

against the petitioners-accused Nos.1 to 3. Under the

said facts and circumstances, insofar as the remaining

offences are concerned the Court can proceed in

accordance with law.

12. Hon’ble Apex Court has laid down It is when

proposed the proposition of law that framing of a charge

 - 14 -

is the first major step in criminal trial where the Court

is expected to apply its mind to the entire records and

documents placed before the Court such as taking the

cognizance of the offences, charge sheet stated to

necessitate an application of mind by the Court by

framing of a charge with a major event where the Court

considered the possibility of the charge of the accused

for the offences which he is charged or requiring the

accused to face the trial. There are different categories

of cases where the Court may not proceed with the trial

and may discharge the accused or pass such other

orders as may be necessary. Keeping in view, the facts

of a given case this proposition of law has been laid

down by the Hon’ble Apex Court in the case of State

through Central Bureau of Investigation Vs.

Dr.Anup Kumar, Srivastava, reported in (2017) 15

SCC 560. wherein at paragraphs-25 to 30, it has been

observed as under:-
 - 15 -

“25. Framing of charge is the first major

step in a criminal trial where the court is
expected to apply its mind to the entire record
and documents placed therewith before the
court. Taking cognizance of an offence has
been stated to necessitate an application of
mind by the court but framing of charge is a
major event where the court considers the
possibility of discharging the accused of the
offence with which he is charged or requiring
the accused to face trial. There are different
categories of cases where the court may not
proceed with the trial and may discharge the
accused or pass such other orders as may be
necessary keeping in view the facts of a given
case. In a case where, upon considering the
record of the case and documents submitted
before it, the court finds that no offence is
made out or there is a legal bar to such
prosecution under the provisions of the Code
or any other law for the time being in force
and there exists no ground to proceed against
the accused, the court may discharge the
accused. There can be cases where such
record reveals the matter to be so
 - 16 -

predominantly of a civil nature that it neither

leaves any scope for an element of criminality
nor does it satisfy the ingredients of a
criminal offence with which the accused is
charged. In such cases, the court may
discharge him or quash the proceedings in
exercise of its powers under the provisions.

26. Similarly, the law on the issue

emerges to the effect that conspiracy is an
agreement between two or more persons to do
an illegal act or an act which is not illegal by
illegal means. The object behind the
conspiracy is to achieve the ultimate aim of
conspiracy. For a charge of conspiracy means
knowledge about indulgence in either an
illegal act or a legal act by illegal means is
necessary. In some cases, intent of unlawful
use being made of the goods or services in
question may be inferred from the knowledge
itself. This apart, the prosecution has not to
establish that a particular unlawful use was
intended, so long as the goods or service in
question could not be put to any lawful use.
Finally, when the ultimate offence consists of
 - 17 -

a chain of actions, it would not be necessary

for the prosecution to establish, to bring home
the charge of conspiracy, that each of the
conspirators had the knowledge of what the
collaborator would do.

27. At this stage, it would be

appropriate to quote a decision of this Court in
CBI v. K. Narayana Rao wherein it was held
as under: (SCC p. 530, para 24)
“24. The ingredients of the offence
of criminal conspiracy are that there
should be an agreement between the
persons who are alleged to conspire
and the said agreement should be for
doing of an illegal act or for doing, by
illegal means, an act which by itself
may not be illegal. In other words,
the essence of criminal conspiracy is
an agreement to do an illegal act and
such an agreement can be proved
either by direct evidence or by
circumstantial evidence or by both
and in a matter of common
experience that direct evidence to
 - 18 -

prove conspiracy is rarely available.

Accordingly, the circumstances
proved before and after the
occurrence have to be considered to
decide about the complicity of the
accused. Even if some acts are
proved to have been committed, it
must be clear that they were so
committed in pursuance of an
agreement made between the
accused persons who were parties to
the alleged conspiracy. Inferences
from such proved circumstances
regarding the guilt may be drawn
only when such circumstances are
incapable of any other reasonable
explanation. In other words, an
offence of conspiracy cannot be
deemed to have been established on
mere suspicion and surmises or
inference which are not supported by
cogent and acceptable evidence.”

28. Further, what constitutes illegal

gratification is a question of law; whether on
 - 19 -

the evidence that crime has been committed is

a question of fact. If, therefore, the evidence
regarding the demand and acceptance of a
bribe leaves room for doubt and does not
displace wholly, the presumption of
innocence, the charge cannot be said to have
been established.

29. In P. Satyanarayana Murthy v. State

of A.P., this Court has held as under:(SCC
p.159 paras 22-23)

“22. In a recent enunciation by

this Court to discern the imperative
prerequisites of Sections 7 and 13 of
the Act, it has been underlined in B.
Jayaraj in unequivocal terms, that
mere possession and recovery of
currency notes from an accused
without proof of demand would not
establish an offence under Section 7
as well as Sections 13(1)(d)(i) and (ii)
of the Act. It has been propounded
that in the absence of any proof of
demand for illegal gratification, the
use of corrupt or illegal means or
 - 20 -

abuse of position as a public servant

to obtain any valuable thing or
pecuniary advantage cannot be held
to be proved. The proof of demand,
thus, has been held to be an
indispensable essentiality and of
permeating mandate for an offence
under Sections 7 and 13 of the Act.
Qua Section 20 of the Act, which
permits a presumption as envisaged
therein, it has been held that while it
is extendable only to an offence
under Section 7 and not to those
under Sections 13(1)(d)(i) and (ii) of
the Act, it is contingent as well on the
proof of acceptance of illegal
gratification for doing or forbearing to
do any official act. Such proof of
acceptance of illegal gratification, it
was emphasized, could follow only if
there was proof of demand.
Axiomatically, it was held that in
absence of proof of demand, such
legal presumption under Section 20
of the Act would also not arise.
 - 21 -

23. The proof of demand of illegal

gratification, thus, is the gravamen of
the offence under Sections 7 and
13(1)(d)(i) and (ii) of the Act and in
absence thereof, unmistakably the
charge therefor, would fail. Mere
acceptance of any amount allegedly
by way of illegal gratification or
recovery thereof, dehors the proof of
demand, ipso facto, would thus not
be sufficient to bring home the charge
under these two sections of the Act.
As a corollary, failure of the
prosecution to prove the demand for
illegal gratification would be fatal
and mere recovery of the amount
from the person accused of the
offence under Section 7 or 13 of the
Act would not entail his conviction
thereunder.”

Hence, the proof of demand has been held to

be an indispensable essentiality and of
permeating mandate for an offence under
Sections 7 and 13 of the PC Act which is
absent in the case at hand.
 - 22 -

30. It was contended by learned

counsel for the appellant-State that the High
Court exceeded its jurisdiction while quashing
the order of charge passed by the Special
Court, CBI Cases. The legal position is well
settled that at the stage of framing of charge
the trial court is not to examine and assess in
detail the materials placed on record by the
prosecution nor is it for the court to consider
the sufficiency of the materials to establish
the offence alleged against the accused
persons. At the stage of charge the court is to
examine the materials only with a view to be
satisfied that a prima facie case of
commission of offence alleged has been made
out against the accused persons. It is also
well settled that when the petition is filed by
the accused under Section 482 of the Code
seeking for the quashing of charge framed
against him the court should not interfere
with the order unless there are strong
reasons to hold that in the interest of justice
and to avoid abuse of the process of the court
a charge framed against the accused needs to
 - 23 -

be quashed. Such an order can be passed

only in exceptional cases and on rare
occasions. The court is required to consider
the “record of the case” and documents
submitted therewith and, after hearing the
parties, may either discharge the accused or
where it appears to the court and in its
opinion there is ground for presuming that the
accused has committed an offence, it shall
frame the charge. Once the facts and
ingredients of the section exists, then the
court would be right in presuming that there
is ground to proceed against the accused and
frame the charge accordingly. This
presumption is not a presumption of law as
such. The satisfaction of the court in relation
to the existence of constituents of an offence
and the facts leading to that offence is a sine
qua non for exercise of such jurisdiction. It
may even be weaker than a prima facie
case.”

13. Keeping in view, the above said proposition of

law I am of the considered opinion that at this juncture

the petitioners-accused Nos.1 to 3 have not made out

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any good grounds to discharge for the offences

punishable under Sections 323, 354, 435, 504 read

with Section34 of IPC. Accordingly, the petition is

partly allowed and the petitioners-accused Nos.1 to 3

have been discharged for the offence punishable under

Section 8 of the Act and insofar as other offences are

concerned, the same is dismissed.

Learned Sessions Judge is directed to remit back

the case to the jurisdictional Magistrate since the said

offences are triable by the Court of Magistrate.

I.A.No.1 of 2019 does not survive for consideration

and the same is disposed of.

Interim of the above discussion, the petition is

disposed.

Sd/-
JUDGE

GJM