Karnataka High Court
C. Dinakar vs S. Krishnamurthy on 4 January, 2016
Equivalent citations: 2016 (2) AKR 269, (2016) 3 KCCR 256
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 04TH DAY OF JANUARY 2016
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
CRL. REVISION PETITION NO. 1181/2015
BETWEEN:
C. DINAKAR
AGED ABOUT 75 YEARS, (FACILITY NOT CLAIMED),
ADVOCATE,
R/O NO. 380, 100 FEET ROAD, INDIRANAGAR,
BENGALURU - 560 008.
... PETITIONER
(By Sri: DINAKAR C(PARTY IN PERSON))
AND
S. KRISHNAMURTHY
R/O NO. 71, N.N.FARMS,
SANJAYNAGAR,
BENGALURU - 560 094.
... RESPONDENT
(By Sri: S. KRISHNAMURTHY-PARTY-IN-PERSON)
THIS CRL.RP FILED U/S.397 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HON'BLE COURT MAY BE PLEASED TO
a)SET ASIDE THE ORDER DATED 18.08.2015 AND ALL
THE PROCEEDINGS OF VIII A.C.M.M., BANGALORE IN
C.C.NO.8409/2005.
b)DECLARE THE PROCEEDINGS IN C.C.NO.8409/2005 IN
THE COURT OF VIII A.C.M.M., BANGALORE EMANATING
FROM THE ORDER DATED 07.03.2015 TAKING
COGNIZANCE OF THE OFFENCE AS NULLITY IN LAW
SINCE THE ORDER WAS OBTAINED BY MAKING
2
MISREPRESENTATIONS AMOUNTING TO FRAUD AS HELD
BY HONBLE SUPREME COURT IN (i) RAMACHANDRA
SINGH V SAVITRI DEVI (2003) 8 SCC 319 (PARAS 18 & 20).
(ii) BHAURAO DAGDU PARALKAR V STATE OF
MAHARASHRA IN (2005) 7 SCC 605 (PARA 12) AND (iii)
A.V.PAPAYYA SASTRY.V. GOVT. OF A.P. REPORTED IN
(2007) 4 SCC 221 (PARAS 21,22 & 26).
THIS CRL.RP HAVING BEEN HEARD AND RESERVED
ON 16.12.2015 AND COMING ON FOR PRONOUNCEMENT
OF ORDERS THIS DAY, A.V.CHANDRASHEKARA, J., MADE
THE FOLLOWING:
ORDER
The present petition is filed under Section 397, Cr.P.C. challenging the order passed by the VIII Metropolitan Magistrage, BEngaluru, in C.C.8409/05.
2. Revision petitioner is the accused in the said case. His plea is recorded for the offence punishable under Section 500, I.P.C. on 21.1.2013. Petitioner has filed an application under Sections 211(5) and 461, Cr.P.C. to drop the proceedings contending that the proceedings were irregular and the complainant has made misrepresentations to obtain an order from the court. The said application came to be dismissed on 8.8.2015. It is this order which is called in question on 3 various grounds as set out in the memorandum of revision petition.
3. The case is set out for admission. The respondent is duly served and present. Both the parties are not represented by any advocate and have submitted their arguments.
4. The facts leading to the filing of this revision petition are as follows:
a) The petitioner was serving as Director General and Inspector General of Police (DG & IGP), Government of Karnataka and after his superannuation, he is practicing as an advocate from 2.3.2001. On the night of 24.12.2001, a young man was shot dead inside the residence of the respondent who was then a senior police officer at that point of time. On the representation made by the relatives of the deceased, petitioner is stated to have written a letter dated 26.12.2001 to the Home Minister, Government of Karnataka, and another letter dated 28.12.2001 to the Chairman, National Human Rights Commission (NHRC), 4 New Delhi, requesting to transfer the investigation of the case to CBI.
b) The case of the petitioner is that those two letters were written by him as C.Dinakar, advocate and not as C.Dinakar, retired DG &IGP. On the request of the brother of the deceased, petitioner had filed a writ petition in W.P.5250/02 and another writ petition in W.P.6671/02 on behalf of the wife of the deceased, before this court.
c) Respondent herein has chosen to file a complaint under section (d) of Cr.P.C. alleging that the petitioner has defamed him by writing the said two letters dated 26.12.2001 and 28.12.2001 in the capacity of DG & IGP and had also given an interview to Star T.V. which telecast the same continuously for two days. The trial court has recorded the plea of the petitioner on 21.1.2013 relating to the defamatory contents found in the letter dated 26.12.2001 addressed by him to the Home Minister, Government of Karnataka. In the said plea, no reference is made to the letter dated 5 28.12.2001, letter addressed to the Chairman, NHRC New Delhi.
d) According ot the petitioner, his action is covered under exceptions 8 and 9 of Section. 499 and Section 79, I.P.C. and the letters were written by him as advocate of the party. The magistrate, while dismissing the application filed under Section 211(5), Cr.P.C., has observed that those exceptions could be considered after the trial is over and the respondent-complainant could lead evidence on the basis of both the letters stated above.
e) In the light of dismissal of the application, the present revision petition is filed.
5. The respondent who is present in person, has furnished as many as 16 certified copies of various judicial proceedings for reference. He has argued that the petitioner has suppressed material facts from the purview of the court in having suffered various orders at the hands of this court as also the Hon'ble apex court. Therefore he has requested this court to dismiss the 6 petition. He has argued that the revision petition is not maintainable and revisonal jurisdiction is very limited to entertain a petition of this nature.
6. After hearing the parties, the points that arise for the consideration of this court are:
(1) Whether the case on hand is fit to invoke the revisional jurisdiction under Section 397, Cr.P.C.?
(2) What order?
7. A person by name Murugan allegedly entered the house of the respondent in Sanjaynagar, KEB Colony, Bengaluru, on the early morning of 24.8.2001 at 12.30 a.m. He was shot dead. The version of the respondent is that a police constable named Purushotam Rao was in the cellar of the residence of the respondent and he heard thudding sound and the door being broken open and saw a few persons scaling up the compound wall. He found the cellar door being locked from outside and managed to open it. When he saw a man breaking the kitchen door with a stone slab, he opened fire with his 7 0.9 mm pistol, killing one of them while the others escaped under the cover of darkness.
8. The above version, according to the petitioner, is a mere cover-up story for the cold-blooded murder committed without any justifiable reason whatsoever. He wanted the version to be scrutinized. According to him, Purushotam Rao was only working as a cook in the house of the respondent for several years and was not trained in firing pistol and was reportedly not issued any pistol. Only security guards posted in the house of senior police officers would be provided with a pistol. According to him, said Murugan (deceased) had done some construction work in the house of Krishnamurthy (respondent herein) and had gone to the house for payment, and that there was an altercation between them in which Krishnamurthy took up his pistol and fired at Murugan. According to him, the plea of self- defence raised on behalf of the respondent is false and therefore, he wanted the entire case to be handed over to CBI. In this regard, he wrote a letter dated 26.12.2001 to the Home Minister, Government of 8 Karnataka, and another letter to the Chairman, NHRC, New Delhi, dated 28.12.2001.
9. The contents of both the letters stated above are identical. Two separate writ petitions were also filed under Article 222 of the Constitution of India, one by the brother of the deceased and another by Smt. Anjali- wife of the deceased, in W.Ps.5250/02 and 6671/02 respectively. The prayer sought in both the writ petitions was to issue a writ of mandamus directing the respondents to register a case of murder and hand over investigation to CBI so as to ensure a fair and impartial investigation and also for payment of compensation of Rs.5,00,000/- to the wife of the deceased for defaming him and calling him a dacoit and murdering him. Both the writ petitions came to be dismissed.
10. A private complaint is filed by the respondent against the petitioner before the Metropolitan Magistrate Court, Bengaluru, in PCR.21333/04 alleging the offence under Section 499, I.P.C. punishable under Section 500, I.P.C. The learned magistrate before whom the 9 complaint was presented, took cognizance of the case and recorded the sworn statement of the complainant. Summons was issued vide order dated 7.3.2005 to the petitioner. Later on this petitioner challenged the order of taking cognizance and issuing summons against him, before this court seeking to quash the order dated 7.3.2005. However the said writ petition was got dismissed as withdrawn vide order dated 5.4.2005. Thereafter a revision petition was filed in Crl.R.P.231/05 before the XI Additional City Civil and Sessions Judge, BEngaluru, seeking to set aside the order dated 7.3.2005 and the said revision petition was also dismissed vide order dated 3.9.2005 after contest.
11. Thereafter the petitioner herein had approached this court under Section 482, Cr.P.C. in Crl.P.3994/05 and that was also dismissed on 22.11.2005, as against which SLP was filed in SLP.(Crl.)18191/10 and that was dismissed vide order dated 12.3.2010. Thereafter the case was set down for recording the plea of the petitioner. In the meantime, an application was filed under Section 252, Cr.P.C. and Section 66 of the 10 Evidence Act stating that cognizance could not have been taken on the basis of Xerox copies of the alleged letters said to have been written by the accused. The said application was dismissed.
12. Subsequently another criminal petition in Crl.P.233/11 under Section 482, Cr.P.C. was filed by the petitioner herein seeking to quash the proceedings in PCR.21233/04 and the order dated 25.10.2010 passed by the VIII Metropolitan Magistrate in C.,C.8409/05. The said petition was dismissed by framing the following points for consideration as found in paragraph 6 at page 9 of the impugned order:
Whether the prosecution launched against the petitioner is liable to be quashed? What is observed by this court is that the original letters written by the petitioner herein-C.Dinakar are in the custody of Governmentof Karnataka and Chairman, NHRC, New Delhi, and therefore, the respondent- complainant cannot produce the original and he could summon them at any time during trial. It is also held that the stage of admitting the document in court has 11 not yet reached, and the case is still at the stage of recording plea of the accused. It is also observed that the maximum punishment contemplated for the offence punishable under Section 500, I.P.C. could extend upto 2 years and therefore, should be treated as a summons case covered by Chapter XX, Cr.P.C. It is also held that the stage has not arrived for considering the application under Section 239, Cr.P.C. also since the said provision is applicable only to seek discharge in a warrant case.
The said application was dismissed specifically holding that the attempt made by the petitioner is nothing but a clear abuse of the process of this court and one to drag on the proceedings. The petition was ultimately dismissed on 3.5.2011 after contest.
13. Apart from this, the petitioner had approached this court in Crl.P.3994/05 requesting this court to quash the proceedings initiated in PCR.21233/04 which was subsequently registered as C.C.8409/09. That petition was also rejected holding that issuing process against the petitioner is perfectly justified. The said order dated 22.11.2005 had been questioned before the 12 Hon'ble apex court in SLP.(Crl.)285/06 and that was dismissed on 27.2.2006. The order dated 12.11.2009 passed in Crl.P.949/08 was also questioned before the Hon'ble apex court in SLP.(Crl.)1810/10 and that was also dismissed on 15.3.2010. The order dated 3.5.2011 passed in Crl.P.233/11 had been challenged by the petitioner herein in SLP.(Crl).4812/11 and that was got dismissed as withdrawn on 18.7.2011. The order dated 9.2.2012 passed in Crl.P.602/12 by this court had also been called in question in SLP.(Crl.)4080/12 and was dismissed on 19.11.2012. This court, while dismissing Crl.P.602/12, has dealt with the allegation that the aspect of complainant having obtained a fraudulent order, has specifically held that there is no reference to that fraudulent order and the submissions are untenable.
14. The main grievance of the petitioner is that in the impugned order, the VIII Metropolitan Magistrate has referred to the letter written by him to the Chairman, NHRC, New Delhi, on 28.12.2001 and that is not the basis of the plea recorded by the trial court. It is argued 13 that the learned judge could not have given permission to the complainant to lead evidence on that letter also. The plea recorded is in regard to the alleged defamation made by the petitioner herein relating to the death of Murugan. The contents of the letter dated 26.12.2001 and 28.12.2001 are one and the same. A clear reference is found about these letters in the private complaint filed under Section 2(d), Cr.P.C. on the basis of which PCR.21233/04 was registered. The allegation is that the accused has written these letters in his individual capacity and with clear malice and not as the advocate representing the party and that he is trying to spew venom. In paragraph 19 of the complaint, there is a specific reference to the letter written to the Chairman of NHRC, New Delhi, on 28.12.2001 also. The complainant's case is that Dinakar had nurtured negative feelings against him in the year 1990 and that was being expressed in so many ways about the guise of seniority vis-à-vis the complainant. The accused, without any basis, is stated to have written those letters and deliberate hatred against the complainant. 14
15. The contents of the letter dated 28.12.2001 addressed to the Chairman of NHRC, New Delhi, would be in support of the earlier letter dated 26.12.2001 and does not create any further cause of action for filing another complaint. The document referred to by the complainant is to buttress the fact that the accused has made false and venomous allegations against him. Therefore the observation made by the learned trial judge that he could adduce evidence on both the letters while leading evidence cannot be found fault with.
16. The learned judge has adopted right approach to the real state of affairs and has referred to the proceedings initiated by the petitioner-accused in various forums including the Hon'ble apex court on several occasions. In fact, the learned sessions judge had directed the trial court to dispose of the matter within 3 months. The petitioner has been obstructing the progress of the case filed by the complainant in one form or the other at every stage. It is unfortunate that 15 in spite of a lapse of 10 years, he has not allowed the summons case to progress and find a logical end.
17. Revisional power under Section 397, Cr.P.C. would lie only when there is a clear illegality in the order. The defect sought to be pointed out by the petitioner is not glaring and is not of such nature as to cause grave injustice to the petitioner. While the court of appeal dealing with criminal appeals sits only to correct the error of the inferior court and in fact, an appeal is a matter of right subject, of course, to exceptions provided under the Code of Criminal Procedure; whereas revisional jurisdiction is of supervisory jurisdiction of the superior court and if the superior court may, in its discretion, interfere to correct the miscarriage of justice. The aggrieved party has no right to obtain relief in the revisional court in every case if the inferior court is incorrect. Though the powers of revision are substantially co-extensive with appellate powers, revisional jurisdiction, whether of the sessions court or High Court being discretionary in nature, is normally to be exercised only in exceptional cases where 16 a glaring procedural defect is found or an error is manifest, or where there has been flagrant miscarriage of justice.
18. Hence on perusing the materials placed on record and the contents of the revision petition, this court is of the specific opinion that this is not at all a fit case to exercise the jurisdiction vested under Section 397, Cr.P.C. No apparent illegality is found, and no glaring injustice is caused to the petitioner. Accordingly the petition will have to be dismissed.
19. In the result, the following order is passed:
ORDER The petition is dismissed. The petitioner shall co- operate with the trial court in disposing of the matter within four (4) months from today.
Send a copy of this order to the trial court at the earliest for reference and compliance.
Sd/-
JUDGE vgh*