Karnataka High Court
Sri Sharad Mohanrao Keshkamat vs Central Bureau Of Investigation on 3 August, 2018
Equivalent citations: AIRONLINE 2018 KAR 481
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 03RD DAY OF AUGUST 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.3750 OF 2017
BETWEEN:
SRI SHARAD MOHANRAO KESHKAMAT
S/O MOHANRAO SHANKARRAO KESHKAMAT
AGED ABOUT 47 YEARS
RESIDING AT PLOT NO.17, VASUDEV
NEXT TO COTTAGE HOSPITAL
CHIKALIM, VASCO
GOA-403802. ... PETITIONER
(BY SRI: MURTHY DAYANAND NAIK, ADVOCATE)
AND
CENTRAL BUREAU OF INVESTIGATION
ANTI CORRUPTION BRANCH
NO.36, BELLARY ROAD
DENA BANK COLONY
GANGA NAGAR
BENGALURU-560032. ... RESPONDENT
(BY SRI: PAVAN SAGAR, ADVOCATE FOR
P PRASANNA KUMAR - SPL PP)
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH
THE PROCEEDINGS IN SPL.C.C.NO.36/2014 PENDING BEFORE
THE COURT OF THE XXXII ADDL. CITY CIVIL AND S.J., AND SPL.
JUDGE FOR CBI CASES, BANGALORE.
2
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE
COURT MADE THE FOLLOWING:-
ORDER
Petitioner has challenged the common order passed by the XXXII Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru in Spl.C.C.No.36/2014, whereby the prayer made by the petitioner for discharge has been rejected and the Special Judge has ordered for framing of charges vide order dated 30.11.2016.
2. In the course of hearing, learned counsel for the petitioner pointed out that even though the Special Judge has ordered to frame charges against the petitioner in respect of the offences punishable under section 120-B r/w sections 409 and 420 Indian Penal Code, the order sheet maintained by the Special Judge indicates that the learned Special Judge did not take cognizance of the above offences at the inception and therefore the further proceedings undertaken by the Special Judge are vitiated. Further, the learned counsel would submit that for want of taking cognizance of the alleged offences, the 3 learned Special Judge could not have assumed jurisdiction to frame charges against the petitioner.
3. In support of his arguments, the learned counsel has placed reliance on the proposition of law laid down by Hon'ble Supreme Court of India in the following cases:
1. Abhijit Pawar v. Hemanth Madhukar Nimbalkar and another reported in AIR 2017 Supreme Court 299.
2. Sanjaysinh Ramrao Chavan V. Dattatray Gulabrao Phalke and others reported in (2015) 3 SCC 123.
3. Mehmood UL Rehman V. Khazir Mohammad Tunda & Ors reported in 2015 AIR SCW 3027.
4. Refuting the above argument, the learned counsel Sri. Pavan Sagar representing Special Public Prosecutor Sri Prasanna Kumar would submit that charge sheet was laid against the petitioner as back as in the year 2014. After taking cognizance of the offences, summons were issued to the petitioner and the petitioner participated in the trial till date.4
The above contentions were not urged at the stage of hearing before charge and therefore, the petitioner is estopped from raking up the said issue three years after entering into appearance. Learned counsel has pointed out that the instant petition is filed under Section 482 of Cr.P.C. only to quash the order dated 30.11.2016 directing to frame charges against the petitioner and not the order of cognizance. Even in this petition, the contention regarding not taking cognizance of the offences has not been urged. Placing reliance on the decision of this Court in Crl.P.No.1960/2017 dated 01.3.2018, learned counsel would further submit that the learned Special Judge having already ordered for framing of charges, the proceedings cannot be quashed on the purported plea now urged before this Court.
5. Further, placing reliance on the decision in the case of Cref Finance Ltd., Versus Shree Shanthi Homes (P) Ltd., and another reported in (2005) SCC 467 with reference to para 10, learned counsel contends that the order sheet maintained by the Special Judge clearly indicates that before issuance of summons, the learned Magistrate has taken cognizance of the offences based on the charge sheet materials 5 placed before it. It is noted in the order that the entire charge sheet material has been looked into and on application of mind, the learned Special Judge has taken cognizance of the offences. In the said circumstances, merely on the ground that some of the offences are not specifically mentioned in the order taking cognizance, does not vitiate the cognizance taken by the learned Special Judge. "Once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offences" as held in the above decision.
6. Considered the submissions and perused the records.
7. Since the whole controversy depends upon the factum of taking cognizance by the learned Special Judge, it may be necessary to refer to the order passed by the learned Special Judge on 30.01.2014. The order reads as follows: 6
Perused the charge sheet materials and the petition filed u/s.173 of Cr.P.C., by the Investigation Officer. Though the charge sheet was submitted on 16.1.2014, taking of cognizance was postponed as the charge sheet was required to be scrutinized by the office by following requisite procedure as per Rule 10 of KCSR 1968.
Having regard to the voluminous records which are part of the charge sheet papers and also having regard to the fact that the office was indulged in verifying the papers in regard to the other cases and also other day-to-day work, considerable time was spent in the office verifying the papers. In this case, after going through the entire records and after application of my mind to the facts of the case, I am of the clear opinion that prima facie, charge sheet materials establish that the accused Nos.2 to 5 have to be tried for the offences punishable u/s.13(2) r/w. Sec.13(1)(c) and (d) of PC Act 1988.
In view of sufficient evidence and materials against A-2 to 5, and also Sanction Order is not necessary as they are not public servants as on the date of commission of the offences, the cognizance is taken of the above said offences against the said accused persons and register the case against the 7 said accused persons i.e., A-2 M/s. Shanthadurga Transport Company Pvt. Ltd., A-3. Sharad Mohan Rao Keshkamath and A-4 M/s. ILC Industries Ltd., and A-5 Sri. K. Somashekar."
8. Undisputedly, the charge sheet was laid under Sections 120(B) r/w Sections 409 and 420 of IPC and under Sections 7, 13(2) r/w 13(1) (c) and (d) of P.C. Act, 1988. It is not in dispute that the petitioner herein is the non-public servant. The learned Magistrate has taken cognizance only of the offences under Sections 13(2) r/w 13(1) (c) and (d) of P.C. Act, 1988 only insofar as accused Nos.2 to 5. Petitioner is accused No.3. The order does not even make reference to the offences for which the charge sheet is laid against the petitioner which is indicative of the fact that the learned Special Judge has not applied his mind to the facts of the case. Though the learned counsel for respondent-CBI would contend that the contents of the order suggest that the learned Magistrate has taken into consideration the relevant material which makes out the offences, but I am unable to accept the said submission. If in fact, the learned Magistrate has gone into the materials produced before the Investigating Agency, it could not have 8 escaped the notice of the learned Magistrate that specific charges leveled against the petitioner are only for non IPC offences. The learned Magistrate therefore, ought to have taken cognizance of these offences. There is not even a remote reference to IPC offences in the instant order. Therefore, the submission of the learned counsel for the respondent-CBI cannot be accepted.
9. Learned counsel for the respondent has canvassed his arguments based on Section 460 of Cr.P.C. This contention, in my view, cannot be accepted for the simple reason that the provisions of Sections 460 and 461 of Cr.P.C. would apply when the Magistrate who is not empowered by law, takes cognizance of an offence under clause (a) or (b) of sub section (1) of Section 190 or the learned Magistrate not being empowered by law in this behalf takes cognizance of the offences. In the instant case, the specific contention of the petitioner is that in spite of there being sufficient material, the learned Special Judge has not taken cognizance of the alleged offences. Therefore, the provisions of Sections 460 and 461 of Cr.P.C. do not get attracted to the facts of this case.
9
10. For both the above reasons, the matter is remitted to the learned Magistrate to reconsider the matter from the stage of taking cognizance.
Accordingly, petitioner is directed to appear in person or through his counsel before the Trial Court on the next date of hearing to take further orders. All the contentions urged by the parties are kept open.
Petition is allowed in terms of the above order.
Sd/-
JUDGE *mn/-