Karnataka High Court
Gopalappa S/O Durgappa Kattimani vs The State Through on 29 June, 2017
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200276/2017
Between:
Gopalappa S/o Durgappa Kattimani
Age: 49 years, Occ: Manager of KSFG
R/o Yadgir
... Petitioner
(By Sri Raja Venkatappa Naik, Advocate)
And:
The State through
Raichur West PS, Raichur
Rept. By Addl. SPP
Kalaburagi Bench
... Respondent
(By Sri Sheshadri Jaishankar M., HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to allow the application to quash the
impugned FIR referred to Annexure P-7 dated 26.05.2016
bearing Crime No.113/2016 registered with Raichur West
Police Station, Raichur for the offences punishable under
Section 3(1)(IV) of SC/ST (Prevention of Atrocities) Act, 1989
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and Sec. 467, 468, 420, 470, 471 R/W 34 of IPC against the
petitioner.
This petition coming on for admission this day, the
Court made the following:-
ORDER
This petition is filed by the petitioner/accused No.22 under Section 482 of Cr.P.C., praying to quash the criminal proceedings initiated in Crime No.113/2016 of Raichur West Police Station, registered for the offences punishable under Sections 467, 468, 420, 470, 471 R/w Section 34 of IPC and also Section 3(1)(IV) of SC/ST (Prevention of Atrocities) Act.
2. Brief facts of the case are that, a complaint was registered on 26.05.2010 alleging that accused No.1 originally belongs to Madiwala Caste and in order to avail the land from the Board in the scheme of Bhuvadethan created a false certificate as Scheduled Caste and thereby caused financial loss to the Board. It is further alleged that, accused Nos.2 to 21 have 3 violated the rules of the Board and created false document and thereby cheating the Board, they have facilitated to avail the benefit of the scheme and thereby deprived the benefit to the Scheduled Caste beneficiaries. It is further alleged that accused Nos.22 to 25 being the Government Servants, have made benefit to all the above accused persons under the Bhuvadethan scheme and the lands given by the Board have been granted to in-eligible women belonging to the same family and those who are already having lands and as per the rules of the Board they have allotted the lands who are residing at far distance, as the rule of the Board is, the land has to be granted to the residents who are residing within 5 kms. Thereby, they have violated the rules and fabricated the documents and have committed the offence. On the basis of the said complaint, a case was registered against accused persons in the above said crime. Now the same has 4 been challenged before this Court under Section 482 of Cr.P.C.
3. I have heard the learned senior counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
4. The main grounds urged by Sri Raja Venkatappa Naik, learned senior counsel for the petitioner are that, the petitioner is nothing to do with the alleged crime and he is not a person to issue the caste certificate. The caste certificate is going to be issued by the concerned Tahasildar and a committee will be there to verify the said caste certificate and they will submit the report to the Government and in that event the accused/petitioner is nothing to do with the fabrication of the document. It is also contended that the accused/petitioner has not involved in any manner in the alleged activities of the Board for the purpose of creation of the documents and sanctioning of the lands 5 to the Scheduled Castes and Scheduled Tribes people. It is further contended that the land, which has been sanctioned has been already waved by the Government before filing of the complaint. Under the circumstances, there is no prima facie case made out as against the petitioner. To substantiate his contentions, he has relied upon the decision in the case of Sate of Haryana and others Vs. Ch. Bhajan Lal and others reported in AIR 1992 SC 604 and contends that where the allegations made in the 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. Under such circumstances, the said case requires to be quashed. It is further contended that the District Committee had submitted the report to the Secretary of the Government, Social Welfare Department and the proceedings have been held in this behalf and on the basis of the proceedings, the sanction of the land has 6 been done. It is further contended that, the material, which has been produced clearly indicates that, there is no prima facie material to proceed against the petitioner. On these grounds, he prays for allowing the petition by quashing the criminal proceedings.
5. Per contra, learned High Court Government Pleader appearing for the respondent-State vehemently contended that, the investigation is in progress and the full material is not before the Court for the purpose of considering the facts and circumstances of the case. He would also contend that, there is prima facie material as against the petitioner including the other accused persons to show that they have fabricated the documents and thereby they have manipulated and allotted the sites to the persons who are not entitled and even those who are not eligible for the said scheme. He would further contend that, when the investigation is pending, then the Court cannot exercise its power under 7 Section 482 of Cr.P.C. and quash the proceedings. On these grounds, he prays for dismissal of the petition.
6. I have gone through the submissions made by the learned senior counsel for the petitioner and the learned High Court Government Pleader and also gone through the documents, which have been produced along with the petition carefully.
7. Learned Senior counsel appearing for the petitioner has drawn my attention to various documents to show that the petitioner is nothing to do with the transaction and it is the Tahsildar, who is going to issue the Caste Certificate and thereafter the District Committee constituted in this behalf, which is going to give its report to the Secretary of the Government, Social Welfare Department and the Secretary of the Social Welfare Department is going to consider who are the beneficiaries under the said Scheme and as per the 8 advise of the Committee, the said allotment is going to be done.
8. By going through the records, which have been produced with the petition, the main allegation in the complaint is that accused No.1 belongs to Madiwal Caste and in order to avail the land from the Board in the Scheme of Bhuvadethan, he has created a false certificate as he belongs to Scheduled Caste and he got allotted the land in his favour so as to cause the financial loss to the board. The further allegation in the complaint is that it is accused Nos.2 to 21 have violated the rules of the board and created the false documents and thereby cheated the board in order to facilitate the persons who are not eligible to get the land under the scheme and thereby deprived the persons belonging to the Scheduled Caste. It is the further allegation that accused Nos.22 to 25 are in Government service and they have made benefit to all the above accused persons 9 under the Bhuvadethan Scheme and the lands have been granted to in-eligible women belongs to the same family and those who are already having lands and as per the rules of the Board, they have allotted the lands who are residing at far distance as the rules of the Board is that land has to be granted to the residents who are residing within 5 kms. Thereby, they have violated the rules.
9. It is an admitted fact that accused No.22 was working as District Manager of KSFG and during his tenure, all the transactions have taken place. When the investigation is still pending and the full material is not before this Court, then it is very difficult for this Court now to adjudicate whether the petitioner has committed any violation of the rules or not as contemplated under the law. As per the contents of the complaint, petitioner/accused No.22 being the Manager of KSFG, along with other accused persons has granted 10 the lands to in-eligible women and also to the persons, who have already got lands by violating the rules. Though the learned counsel pr the petitioner contends that petitioner/accused No.22 is nothing to do with the other persons who will issue the Caste Certificate and eligibility certificate, but accused No.22 is the main person to sanction the lands after rectifying the documents. When an allegation has been made that by creating and fabricating the documents and by violating the rules of the Board the land has been granted, the petitioner/accused No.22 cannot simply put his signature by holding a very responsible position in that Board. He is also equally liable in allotment of lands. In this behalf, there appears to be a prima facie material as against the petitioner.
10. It is contended by the learned counsel for the petitioner that the Government has waived the loan given under the scheme. But, when fraud has been 11 played and by cheating, in-eligible persons have been granted the land, then waiver of this loan will not going to wave the loan given to in-eligible persons. It will also not help the petitioner in any manner.
11. Though it is contended that it is the Tahsildar, who issues Caste Certificate and a Committee recommends it in the District Committee which submits the report for permission is consisting of Deputy Commissioner, Joint Director of Agriculture Department, District Social Welfare Officer, Sub- Division Officer and District Manager, it means, petitioner/accused No.22 who is working as a Manager is the Secretary of the Committee. Under such circumstances, he cannot now say that he is nothing to do with the report. Before giving report, it has to verify the authenticity of documents. In the absence, it shows collusion. In this behalf, the contention is not acceptable. Under what circumstances, the provisions of 12 Section 482 of Cr.P.C. are to be exercised has been elaborately discussed by the Apex Court in the case of State of Orissa and Another vs. Saroj Kumar Sahoo reported in 2005 (13) SCC 540 at para Nos.9 and 10, which is as under:
"9. In R. P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a 13 reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335:
1992 SCC (Cri) 426. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(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, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.14
(3) Where 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 Act concerned (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 Act concerned, 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."
12. In the above decision, it has been observed that where the allegations made in the FIR or complaint 15 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. Under such circumstances, the power vested with this Court under Section 482 of Cr.P.C. can be exercised and the proceedings can be quashed. However, on perusal of the records, though it indicate that some prima facie material is there as against the petitioner/accused, but what is the actual role, which has been played at the time of sanctioning the lands under the Scheme and other things, in this behalf still the investigation is pending. Under such circumstances, now it cannot be held that there is no prima facie material as against the petitioner.
13. Keeping in view the above said proposition of law, the power possessed by this Court under Section 482 of Cr.P.C. are very wide and very plenitude of the 16 power requires great caution in its exercise. While exercising such power, Court must be careful and it must be based on sound principles. The inherent power should be exercised to stifle a legitimate prosecution. When a big fraud and cheating has taken place and when entire material is not before the Court, normally this Court will refrain from giving a decision on an issue involved. Even though the learned counsel would raise several contentions, but it would be erroneous to assess the material which has been collected during investigation by the police. It is the evidence, which is going to be lead in the Court would decide the case. In that light, it cannot be held that, there is no material or there is material against the petitioner. Under the above said circumstances, this Court cannot interfere with the disputed question of facts and cannot exercise the power under Section 482 of Cr.P.C.
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14. Be that as it may. When the investigation is still pending and it is the specific contention of the learned counsel for the petitioner that the land sanctioned under the said Scheme has been waived by the Government and all the things have been settled and also when the matter is referred for the purpose of investigation to C.I.D, under such circumstances, whether the petitioner is going to be shown as accused after the investigation or not is a matter, which has to be adjudicated at the time of investigation and after filing of the charge-sheet. At this premature stage, now it cannot be held that the act of the accused is there or not. Under the circumstances, I feel that it is not just and proper to quash the proceedings at this premature stage.
15. In view of the principles laid down in the above decision and the facts and circumstances of the case, the petition is dismissed with a liberty to the 18 petitioner to file appropriate petition after the charge sheet is filed.
In view of dismissal of the petition, I.A.2/2017 for stay does not survive for consideration and the same is accordingly dismissed.
Sd/-
JUDGE LG