Karnataka High Court
Sri.Ravi S/O Deva Naik vs Sri.Shantolini Seemaov Fernandes on 12 November, 2020
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF NOVEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CHANDRASHEKAR
LAXMAN
KATTIMANI
Digitally signed by
CHANDRASHEKAR
LAXMAN
KATTIMANI
Date: 2020.11.25
11:30:37 +0530
CRIMINAL REVISION PETITION NO.100035 OF 2020
BETWEEN:
SRI RAVI S/O.DEVA NAIK,
AGED ABOUT 47 YEARS,
PRESENTLY WORKING AS
CIRCLE INSPECTOR OF POLICE,
MANGALORE POLICE STATION,
MANGALORE.
... PETITIONER
(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE)
AND:
1. SRI SHANTOLINI SEEMAOV FERNANDES,
AGED ABOUT 44 YEARS,
RESIDING BEHIND TAHASILDAR'S OFFICE,
HONNAVAR, DIST-KARWAR.
2. THE STATE OF KARNATAKA,
REP. BY SUB-INSPECTOR OF POLICE,
HONNAVAR POLICE STATION,
HONNAVAR, DIST -UTTAR KANNADA,
REP. BY THE ADDL. SPP,
HIGH COURT OF KARNATAKA,
AT DHARWAD.
... RESPONDENTS
(BY SRI MAHESH WODEYAR, ADVOCATE FOR R-1)
(BY SRI. RAMESH B.CHIGARI, HCGP FOR R-2)
Crl.R.P.No.100035/20
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THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C., PRAYING
TO SET ASIDE THE ORDER PASSED BY THE ADDL. J.M.F.C.,
KUMTA IN C.C.NO.566/2010 UNDER SECTIONS 447, 451, 504,
506 AND 500 OF IPC DATED 13.02.2019 ON APPLICATION
FILED UNDER SECTION 239 OF CR.P.C. AND ALLOW THE
APPLICATION BY ALLOWING THE PRESENT PETITION IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is preferred by accused No.1 against the order of Additional JMFC, Kumta dated 13.02.2019 in C.C.No.566/2010 dismissing the application filed by petitioner herein under Section 239 of Cr.P.C.
2. Brief facts leading to filing of this petition is as under:
2.1. Respondent No.1 had filed a Private Complaint on 29.10.2009 in Private Complaint No.228/2009 alleging that the brother of complainant running a liquor business for the past 20 years and had earned good name and fame in the Crl.R.P.No.100035/20 3 society. It is alleged in the said complaint that on 27.10.2009 at about 11.30 hours petitioner along with other accused persons entered the house of complainant and abused his aged mother infront of public and went to the Police Station to register a case. Thereafter, complaint was converted as C.C.No.566/2010 on the file of learned Additional JMFC, Kumta after taking cognizance of the matter.
3. Pursuant to the cognizance being taken in the matter, petitioner herein challenged the said cognizance by presenting the Criminal Petition No.11637/2011 before this Court. After hearing the parties, this Court dismissed the criminal petition vide its order dated 05.09.2014, wherein liberty was reserved to the petitioner to file an application for discharge, if he so desires and the trial Court to consider the same and pass appropriate order in accordance with law.
4. Pursuant to the said order of rejection of criminal petition filed by petitioner, he filed an application before the Magistrate under Section 239 of Cr.P.C. seeking for discharge from the case. It was main contention of petitioner that a Crl.R.P.No.100035/20 4 false complaint was filed against him and three other accused and there is no ground to proceed against the petitioner and accordingly, the petitioner deserves to be discharged from the case. It was also argued by petitioner that three other accused along with petitioner had filed a criminal petition for quashing the complaint and the criminal petition filed by accused Nos.2 to 4 was allowed and the complaint against them was quashed, whereas against the petitioner same was rejected and liberty was granted to file an application for discharge.
5. On consideration of materials available on record and on affording fair opportunity to petitioner and respondent, trial Court came to a conclusion that the documents relied by the petitioner were all in the nature of defence to the case of complainant and held that there are no sufficient materials to establish and allegations of complainant are prima-facie groundless. On the other hand, learned Magistrate held that there are sufficient materials to Crl.R.P.No.100035/20 5 proceed against the accused at this stage and accordingly rejected the application.
6. Aggrieved by the said order of rejection, petitioner is before this Court.
7. Heard learned counsel Sri.Mrutyunjay Tata Bangi for petitioner and learned counsel Sri.Mahesh Wodeyar for respondent No.1 and Sri.Ramesh Chigari, learned H.C.G.P. for respondent No.2.
8. It is the contention of learned counsel for petitioner that the order passed by trial Court is illegal and against the principles laid down by the Hon'ble Apex Court and accordingly same deserves to be set aside. He contends that the very cognizance taken by Magistrate itself is an abuse of process and deserves to be set aside. He further contends that while taking cognizance of the matter, the trial Court cannot mechanically take cognizance and issue summons, materials relevant will have to be examined and after coming to a prima-facie conclusion only the cognizance requires to Crl.R.P.No.100035/20 6 be taken. Learned counsel for petitioner contends that petitioner performed his duty in the official capacity which was against the interest of complainant and in order to subvert such investigation being carried out by petitioner in the official functions of his duty the present complaint is filed. Therefore, he contends that under such circumstances, the complainant ought to have obtained sanction from the government before filing the complaint against the petitioner.
9. It is his further contention that the complaint is filed by complainant only to wreck vengenes against the petitioner as petitioner had registered a case and seized the vehicle and liquor bottles of complainant and leading to initiation of proceedings against the complainant. It is further contended by learned counsel that several material documents were placed before the Court which would show that petitioner was not available on the date when the alleged incident had taken place as per the complaint. However, he contends that these vital material documents were not considered by the learned Magistrate while deciding the application under Section 239 Crl.R.P.No.100035/20 7 of Cr.P.C. and has mechanically rejected the application thereby causing miscarriage of justice to petitioner; petitioner is not an ordinary common man, but he is a Police Officer with responsibility. It is further contention of learned counsel that petitioner being a public servant, it is mandatory to take permission before initiation of any criminal proceedings against the petitioner. It is further contended that if private persons who are accused in an offence start preferring complaints against an official performing his official duty and if the same is not curtailed, it will send a wrong message to society as it is a vested right and duty cast on the Police Officer to conduct investigation in his official capacity. On these submissions, learned counsel for petitioner seeks to allow his petition to set aside the order passed by learned Magistrate and discharge him all the charges leveled against him.
10. To substantiate his arguments learned counsel for the petitioner relies on the following judgments : Crl.R.P.No.100035/20 8
(i) Anil Kumar and Others vs. M.K.Aiyappa and Another, reported in (2013) 10 SCC 705.
(ii) Om Prakash and Others vs. State of Jharkhand through the Secretary, Department of Home, Ranchi 1 and another, reported in (2012) 12 SCC 72.
11. Per Contra, learned counsel for respondent No.1- complainant vehemently contends that order passed by learned Magistrate is based on the material available on record and conforms to the provisions of Code of Criminal Procedure, 1973 and hence the same does not call for any interference by this Court. Learned counsel further controverts/refutes the arguments of petitioner and he contends that the submissions placed before the trial Court by petitioner are all in the nature of defence taken by petitioner to the allegations of complainant. Therefore, such defence taken cannot be looked into by the learned Magistrate while deciding the application under Section 239 of Cr.P.C. It is the contention of learned counsel for respondent No.1 that provisions of Section 239 of Cr.P.C. is Crl.R.P.No.100035/20 9 very clear as to what has to be considered while deciding such application filed under Section 239 of Cr.P.C. He further contends that the learned Magistrate has to only consider the materials available, on the basis of allegations made in the complaint, decide the application for discharge, as to whether there is any prima-facie case made out by the petitioner to not proceed to frame charges. He further contends that the learned Magistrate has adopted the correct procedure by looking into the materials available and on being satisfied that there is prima-facie ground to proceed against the petitioner, rejected the application of petitioner. On these submissions, he seeks for dismissal of the revision petition.
12. To substantiate his case learned counsel for respondent No.1 relies on the following Judgments :
(a) State of Karnataka Lokayukta, Police Station, Bengaluru vs. M.R.Hiremath, reported in (2019) 7 SCC 515.
(b) Srilekha Sentilkumar vs. Deputy Superintendent of Police, Central Bureau of Investigation ACB, Chennai, reported in (2019) 7 SCCC 82.Crl.R.P.No.100035/20
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(c) Bholu Ram vs. State of Punjab and Another, reported in (2008) 9 SCC 140.
13. Learned counsel for respondent No.2-State submits that cognizance has been taken otherwise, than on Police report, therefore, there is not much role of the State.
14. Having heard the submissions of learned counsel for petitioner and the learned counsel for respondents, points that arise for consideration before this Court are, (I) Whether the trial Court has committed any irregularity or illegality in rejecting the application of petitioner under Section 239 of Cr.P.C. seeking for discharge.
(II) Whether the said order calls for any interference by this Court.
15. It is not in dispute that there is a private complaint registered against the petitioner for the offences punishable under Sections 447, 451, 504, 506 and 500 of IPC. It is seen that this cognizance has been taken on the basis of Crl.R.P.No.100035/20 11 registration of private complaint and the Magistrate exercising the powers under Section 202 (1) of Cr.P.C. As such, the sworn statement by way of evidence has been recorded and petitioner has duly cross-examined the complainant-P.W.1. Pursuant to which, present application for discharge under Section 239 of Cr.P.C. came to be filed by petitioner herein. It is important to extract provisions of Section 239 of Cr.P.C. same is as under :
"239. When accused shall be discharged. - If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity to being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
16. While dealing with the provisions of Section 239 of Cr.P.C., it is necessary to see the powers and limitations of the Court. In dealing with such application, it is no doubt true that the trial Judge is not mere post office to frame the charge at the instance of prosecution. It is the duty of Judge Crl.R.P.No.100035/20 12 to look into the available materials to find out, whether there are any sufficient grounds for proceeding. If the evidence by way of statement or documents produced by prosecution or complainant, even if it is fully accepted before it is challenged in cross-examination or rebutted by defence evidence, if any, cannot show that accused has committed any offence, then there will be no ground for proceeding with the trial, it is no doubt open to the accused/petitioner herein to explain away materials giving rise to such grave suspicion. It is the duty of trial Court to consider about the probabilities, the total effect and documents and evidence produced before the Court, any basic infirmities appearing in case and so on.
17. However, this would not entitle the Court to make a roving enquiry to the pros and cons of the matter. It is important for the trial Court to note that at the time of framing of charges, probative value of the material on record cannot be gone into and the material brought on record by prosecution has to be accepted as true. There must exists some material to entertaining the strong suspicion which can Crl.R.P.No.100035/20 13 be relied on for refusing to discharge the accused. Another important aspect to be considered by the trial Court is that defence of the accused is not to be looked into at the stage when accused seeks to be discharged under the said provision.
18. At this stage, the materials produced by the accused need not be looked into by the trial Court and it has to place it's reliance on the already existing material and the evidence. No doubt, it is open to the accused to rely on such material and persuade the Court to discharge him. If at all, the accused is able to establish any grave suspicion then, same will have to be established on the materials available and placed on record by the prosecution/complainant in this case. Therefore, while dealing with an application under Section 239 of Cr.P.C. being challenged before this Court, this court cannot act as an Appellate Court and start appreciating the evidence and finding out the inconsistencies and lacunas in the statements of the witnesses. In the present case on hand, it is the defence taken by the Crl.R.P.No.100035/20 14 petitioner that he was not available at the alleged time stated by the complainant and on the contrary he was attending a meeting elsewhere in his official capacity. Petitioner is at liberty to take such defence and alibi but whether the same could be considered at the stage of pre-trial and discharged has to be affirmatively held to be in the negative.
19. Learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court to substantiate his arguments on the point that before initiating any complaint against the petitioner who is a public servant, it is required that a mandatory sanction under Section 197 of Code of Criminal Procedure has to be obtained which has not been obtained from the Government. Therefore, the complaint itself is not maintainable.
20. The other judgment relied by the petitioner is also on the same line of sanction having not been obtained before initiation of any legal proceedings against a public servant. It is relevant to note here that the petitioner had challenged the cognizance taken by the trial Court before this Court in Crl.R.P.No.100035/20 15 Crl.P.No.11637/2011 wherein, the petitioner had vociforcely addressed his arguments on the grounds of sanction having been not obtained and sought for quashing of the complaint and it is not in dispute that said petition came to be rejected by this Court. Presently, this Court is in the limited revisional jurisdiction to see whether there is any illegality or perversity committed by the trial Court in rejecting the application of petitioner seeking for discharge.
21. This Court would not want to go into the merits of the matter as the same would prejudice the mind of the trial Court while dealing the further proceedings and it would suffice to say that while dealing with an application under Section 239 of Cr.P.C., the trial Court is required to see that if there is prima facie material placed on record either by way of evidence oral or documentary to proceed to frame charge and if the Court is satisfied then, it is right in dismissing the application seeking for discharge.
22. In the present case on hand, the learned Magistrate has gone through the available materials and the Crl.R.P.No.100035/20 16 evidence available on record and having applied it's judicial mind has come to a conclusion that there is prima facie material available to proceed to frame charge. Valiant effort has been made by the learned counsel for the petitioner to show before this Court that there are voluminous material documents which would prove to the contrary that the petitioner is not involved or was not present at the time of incident as alleged by the complainant.
23. All these factual aspects will have to be dealt during the course of trial and decided at the relevant stage. At pre-trial stage, these aspects cannot be looked into by the learned Magistrate. Therefore, to answer point No.1, I find no illegality or perversity in the order passed by the learned Magistrate. Accordingly, no interference is called for from this Court.
24. Hence, I pass the following:
ORDER Petition is dismissed.
No orders as to costs.Crl.R.P.No.100035/20
17 It is also fairly submitted across the Bar by learned counsel for petitioner that the order passed by this Court in Crl.P.No.11637/2011 was challenged before the Hon'ble Apex Court in SLP No.9006/2015 which also came to be dismissed. The fair submission placed on record by learned counsel for petitioner is appreciated and appreciation is placed on record.
In view of the dismissal of the petition, IA No.1/2020 would not arise and the same is dismissed.
SD/-
JUDGE CKK/HMB