Karnataka High Court A.Eranna S/O Basanna vs The State Of Karnataka on 19 February, 2014Author: K.N.Phaneendra
IN THE HIGH COURT OF KARNATAKA
DATED THIS THE 19TH DAY OF FEBRUARY, 2014 BEFORE
THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO. 11208/2013
1. A.ERANNA S/O. BASANNA
AGE: 41 YEARS,
OCC: JUDICIAL OFFICER,
R/O: JUDGES QUARTERS,
2. MALLIKARJUNA S/O. BASANNA
AGE: 37 YEARS, OCC: ADVOCATE,
R/O: JUDGES QUARTERS,
3. CHANDRASEKHAR S/O. BASANNA
AGE: 36 YEARS, OCC: ADVOCATE,
R/O: JUDGES QUARTERS,
4. BASANNA S/O. KURUBA
AGE: 67 YEARS,
R/O: JUDGES QUARTERS,
AGE: 22 YEARS, OCC: SDA,
DISTRICT COURT RAICHUR
R/O: JUDGES QUARTERS,
AGE: 23 YEARS, OCC: STUDENT,
R/O: JUDGES QUARTERS,
7. CHANDRAKALA D/O. PARAPPA
AGE: 20 YEARS, OCC: STUDENT,
R/O: JUDGES QUARTERS,
8. GIRIJAMMA D/O. PARAPPA
AGE: 22 YEARS,
R/O: JUDGES QUARTERS,
AGE: 29 YEARS,
R/O: JUDGES QUARTERS,
(BY SRIYUTHS V. M. SHEELVANT & M. L. WANTI, ADVOCATES)
1. THE STATE OF KARNATAKA
PSI, HOSPET RURAL POLICE STATION,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
DHARWAD BENCH, DHARWAD.
AGE: 27 YEARS,
OCC: HOUSE WIFE,
R/O: GUTTAPPA COLONY,
2ND CROSS, SHIMOGA
(BY SRI V.M. BANAKAR, ADDL. STATE PUBLIC PROSECUTOR FOR R1;
SRI ANANAT HEGDE & SRI VISHWANATH HEGDE, ADVOCATES FOR R2)
THIS CRIMINAL PETITIOJN FILED U/S 482 OF CR.P.C. PRAYING TO QUASH FIR AND COMPLAINT AGAINST PETITIONERS REGISTERED BY THE HOSPET RURAL POLICE STATION, HOSPET IN CRIME NO.137/2013 FOR OFFENCES P/U/S. 498A, 504, 149, 313, 232 OF IPC R/W SEC. 3 & 4 OF DOWRY PROHIBITION ACT PENDING ON THE FILE OF CIVIL JUDGE (JR.DN) & JMFC, HOSPET. 4
THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
Heard learned counsel for the petitioners, learned Additional State Public Prosecutor for respondent No.1 – State and learned counsel for respondent No.2. Perused the records.
2. The petitioners, who are arrayed as accused Nos. 1 to 9 in Crime No.137/2013 on the file of Hospet Rural police Station, Hospet are accused of the alleged offences punishable under Sections 498A, 504, 149, 313 and 323 of the Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’ for brevity) and read with Sections 3 and 4 of Dowry Prohibition Act, 1961.
3. The learned counsel for petitioners has strenuously submitted that even the allegations made in complaint are translated into evidence and they do not disclose any 5
specific offence against all the petitioners and that the petitioners have been falsely implicated into the crime. It is also submitted that petitioner No.1 is a Judicial Officer, after his marriage with the complainant by name Smt. S.M. Usha, he lived happily with his wife for about one year. Thereafter they started quarreling with each other. It is contended by learned counsel for petitioners that petitioner Nos.2 to 9 are shown as, they are residing along with petitioner No.1 in his house, which is palpably false statement given by the complainant before police as well as before this Court. He further submitted that the allegations regarding the offences punishable under Sections 498A, 504, 149 and 323 of I.P.C. are not at all applicable against all the petitioners. He further contends that petitioner Nos.2 and 3 are brothers of petitioner No.1 and they are practicing Advocates at different places. Petitioner No.4, is the father of petitioner No.1, is an agriculturist and is residing at a different place, but not with petitioner No.1. Petitioner No. 5 is working as SDA in District Court, Raichur, and she is residing at a different 6
place. Petitioner Nos.6 to 8 are students and they are studying at different place. If the entire allegations are gone through in a meticulous and proper perspective then the contradictions in the complaint, would be sufficient to uproot the case of complainant. The learned counsel has also relied upon two decisions of Hon’ble Supreme Court. Therefore, he seeks for quashing of the proceedings.
4. Per contra, learned counsel for respondent No.2 contends that the Court at this stage cannot evaluate the materials on record. The allegations made in complaint are sufficient to hold that the allegations are sufficient to constitute the offences alleged. Normally, this Court cannot interfere with the investigation. The police are conducting investigation only for the purpose of ascertaining the truth or falsity of the allegations made in the complaint. Petitioners can produce the materials before the I.O. and persuade the I.O. to file true report before the Court. Whether the averments made in complaint are true or false 7
have to be investigated by the police. At this stage Court cannot scuttle the investigation merely on the ground that there are some contradictions in the complaint itself. This is not a stage where the Court can appreciate the contradictions and omissions in the FIR. Even if charge sheet is filed before the Court, after investigation the jurisdictional Magistrate has got ample opportunity to once again re-evaluate and look into the charge sheet averments and the statement of witnesses and documents produced along with the charge sheet and consider whether it is a fit case to take cognizance against the accused persons and to proceed against them. Hence, this exercise has to be done by competent authorities and the powers vested with competent authorities should not be interfered by this Court.
5. After hearing the arguments on both sides, now let me go through the contents of allegations made in the complaint by respondent No.2. Respondent No.2 is the wife 8
of petitioner No.1. Petitioner No.1 has married respondent No.2 on 29.11.2007 after taking money, gold, car, site, etc. as dowry. They lived happily for a period of one year. When respondent No.2 became pregnant petitioner No.1 was not happy and he has forced her to abort the pregnancy and also to take contraceptives as he didn’t like to have any child till his declaration of probationary period. It is specifically alleged that in the month of September – October the accused persons started abusing and harassing the respondent No.2. In the month of October 2008 during Dasara vacation due to frustration respondent No.2 has consumed poison and petitioner No.1 himself admitted her to the hospital. It is further alleged that in the year 2009 petitioner No.1 was transferred to Bangalore, she also went to Bangalore. Thereafter, she once again conceived, petitioner No.1 again started illtreating her to get aborted for the second time. She was also abused in filthy language by other petitioners and made her life miserable. Inspite of counseling and advise by elders the matter was not settled 9
between them. Therefore, respondent No.2 has lodged a complaint stating that petitioner have committed the alleged offences and the same has to be investigated by competent authority.
6. As rightly contended by learned counsel for petitioners, petitioner No.1 and respondent No.2 have lived happily for a period of one year. The fact that respondent No.2 was sent out from matrimonial house creates a serious doubt in my mind. But, at this stage, this Court is debarred from saying anything about this particular aspect, because this will have a very far reaching effect so far as the conduct of petitioners or respondent No.2 are concerned. Therefore, I do not want to say anything about this aspect is concerned. But, this is not sufficient to say that the entire complaint is devoid of any merits and requires no investigation.
7. Now coming to the decisions relied upon by learned counsel for petitioners and respondent. The Hon’ble 10
Supreme Court in a case between Preeti Gupta and Another vs. State of Jharkhand and Another, has in fact culling out all the previous decisions rendered has ultimately cautioned the Courts that the power of Court under Section 482 of of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity) has to be very carefully exercised. It is also well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations made in the FIR or complaint prima facie constitute any offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. On the basis of the principle that the Court cannot be utilized for any oblique purpose and where, in the opinion of the court chances of an ultimate conviction is bleak and that no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking 11
into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
8. In the above judgment the Hon’ble Supreme Court has also culled certain important aspects by relying upon the decisions in the case of, State of Haryana and Ors. V. Bhajan Lal and Ors., reported in 1992 Supp. (1) SCC 335. In my opinion, this is a landmark judgment, where so many illustrations and guidelines have been given by Hon’ble Supreme Court, which reads as follows : “The Court has to exercise its extraordinary power under Section 482 of Cr.P.C. to quash the proceedings, wherein such power should be exercised : 1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the first information report and other materials, if any, 12
accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3) Whether the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6) Where there is an express legal bar engrafted in any of the provisions of the Code or the 13
concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”
9. In view of the above said guidelines, it amplify that the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally 14
refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.
10. The same principles have almost been reiterated in another decision reported in –
LAWS (SC) – 2012 – 10 – 53 between Geeta Mehrotra v. State of U.P.
The learned counsel for respondent No.2 has relied upon a decision reported in –
AIR 2009 Supreme Court 1863 between State of A.P. v. Aravapally Venkanna and Anr. 15
11. The Hon’ble Supreme Court at paragraph 8 of the judgment has reiterated the above said principles and that how the High Courts have to exercise their powers under Section 482 of Cr.P.C. The para 8 is extracted as under : ” 8. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magniture and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court 16
will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on 17
consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the F.I.R. that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceeding.”
12. In view of the above said ruling of the Hon’ble Supreme Court, it is clear that when the allegations made in the first information report or in the complaint or in the sworn statement of the complainant, if it is a private complaint, on overall analysis of the materials on record not 18
entering into appreciating the contradictions and omissions in the complaint if overall reading of the complaint if the Court comes to the conclusion that there are certain materials or certain allegations in the complaint or in the first information report which constitute an offence and if there are no other materials produced before the Court, to directly come to the conclusion that these allegations palpably false and no investigation is absolutely necessary in such cases then only the Court has to tentatively draw an inference that no further investigation is absolutely necessary in such cases. Only if the Court arrives at such a conclusion the Court can quash the proceedings otherwise the normal tendency of the Court should be to continue the prosecution. In this particular case, if this Court applies the above said principles, as I have already culled out certain factual allegations made against the petitioners, wherein the allegations made on overall reading of the complaint averments constitute some offences against the petitioners herein. However, there are some discrepancies and 19
omissions in the first information report. But it is a wellknown principle of law that FIR cannot be an encyclopedia and it cannot be considered as a substantive piece of evidence at this stage. It is completely the domain of Investigating Agency to find out on the basis of such information whether the contents of FIR are true or false by thoroughly investigating into the matter. In such context, the petitioners are also entitled to produce all the relevant materials before the Investigating Officer in order to show and establish that the allegations made against the petitioners are palpably false and no charge sheet or final report confirming the allegations of the complainant can be submitted to the Court. Even in the event of the Police Officer by misconception or misdirecting himself files any charge sheet against the accused persons / petitioners then there is ample opportunity to the Magistrate before whom the charge sheet is filed has to once again look into the contents of entire charge sheet papers and come to the conclusion whether such allegations made by complainant 20
are established by means of cogent and sufficient materials in the charge sheet. In such event the Magistrate can also refuse to take cognizance and reject the charge sheet at that stage itself or if the Magistrate comes to the conclusion that the materials collected by the Investigating Officer are not adequate and properly collected, then the Magistrate has got jurisdiction to refer the matter to the Investigating Agency for further enquiry and report. When such being the procedure, in my opinion, at this stage, which is too premature stage, petitioners cannot call upon the indulgence of this Court to quash the entire proceedings. It is worth to note here a decision of the Hon’ble Apex Court reported in – (2012) 9 SCC 460 between Amit Kapoor vs. Ramesh Chander and Another.
13. The Hon’ble Supreme Court had laid down certain guidelines particularly at paragraph 27.13, which is applicable to the present case. Wherein, it has been observed that –
” Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.”
14. In the above said ruling the Hon’ble Supreme Court has cautioned that normally continuation of the prosecution should not be interfered with. The wordings used in above said decision that, “where the offence is even broadly satisfied”, gives an implication that the Court should not meticulously read the allegations made in the complaint or in the FIR, the Court has to read the complaint or the FIR and on overall reading of the allegations made in the complaint if the Court is of the opinion that some materials are available to constitute the offences against the accused 22
then the prosecution should be allowed to continue because at the threshold the Court is not in a position to find out what is the truthness or falsehood in the allegations made in the FIR.
15. Before parting with the order, it is just and necessary to refer some of the documents produced by learned counsel for the petitioners. He has produced certain documents i.e., certificates showing accused Nos.2 and 3 (petitioner Nos.2 and 3) are practising Advocacy at different places. He has also produced certain documents to show that petitioner No.4 is the resident of Athani, petitioner No.5 is working as SDA in District Court, Raichur, petitioner Nos.6 to 8 are students and they are prosecuting their studies at different places. But as I have stated these documents are extraneous materials to the Court, on the basis of these materials this Court cannot draw an inference that the allegations made in FIR are all false. It is a very premature stage to come to any conclusion. However, 23
petitioners are at liberty to produce these documents before Investigating Agency. The Investigating Agency has to provide an opportunity to all the petitioners to produce documents or any evidence available to them and thereafter culminating the entire investigation the police have to submit a truthful report to the jurisdictional Magistrate. Hence, I am of the opinion that there is no substantial material to interfere with the investigation. With these observations, petition is dismissed. SD/-