Karnataka High Court
Prof K S Rangappa vs The State Of Karnataka on 15 September, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.8762/2019
c/w.
CRIMINAL PETITION No.8752/2019
CRIMINAL PETITION No.8768/2019
CRIMINAL PETITION No.8772/2019
IN CRIMINAL PETITION No.8762/2019:
BETWEEN:
Prof. K.S.Rangappa
S/o late Subbegowda
Aged about 64 years
R/at No.227/9,
Bogadi 2nd Stage,
Bengaluru-570 026.
...Petitioner
(By Sri Jayakumar S. Patil, Senior Counsel for
Smt. Monica Patil, Advocate)
AND:
1. The State of Karnataka
by Jayalakshmipuram Police Station,
Mysuru,
Represented by its State Public Prosecutor
High Curt Building
Bengaluru560 001.
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2. The Registrar
Karnataka State Open University
Mukthagangothri,
Mysuru-570 006.
...Respondents
(By Sri M.Divakar Maddur, HCGP for R1;
Sri Sharana Patil, Advocate for
Sri Sonthosh S. Nagarale, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash all further investigation in Crime
No.53/2019 registered by the Jayalakshmipuram Police
Station, Mysuru, for the offences punishable under
Sections 406, 409 and 420 r/w. 34 of IPC now the case is
pending in protest petition on the file of the I Additional
Civil Judge (Sr. Dn.) and CJM Court, JLB Road, Mysuru
City.
IN CRIMINAL PETITION No.8752/2019:
BETWEEN:
Prof. M.G.Krishnan
S/o M.Guligowda
Aged about 66 years
Ex. Vice Chancellor
Karnataka State Open University
Mukthagangothri
Mysuru-570 026.
...Petitioner
(By Sri Dinesh Kumar K. Rao, A/w
Sri Eshwara H.H., Advocates)
AND:
1. The State of Karnataka
by Police Inspector
Jayalakshmipuram Police Station, Mysuru,
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Represented by its State Public Prosecutor
High Curt Building
Bengaluru560 001.
2. The Registrar
Karnataka State Open University
Mukthagangothri,
Mysuru-570 006.
...Respondents
(By Sri M.Divakar Maddur, HCGP for R1;
Sri Sharana Patil, Advocate for
Sri Sonthosh S. Nagarale, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the entire proceedings in Crime
No.53/2019 registered by the 1st respondent
Jayalakshmipuram Police Station, for the offences
punishable under Sections 406, 409 and 420 r/w. 34 of
IPC against the petitioner dated 17.12.2019 pending on the
file of the I Additional Civil Judge (Sr. Dn.) and CJM, JLB
Road, Mysuru City.
IN CRIMINAL PETITION No.8768/2019:
BETWEEN:
Prof. P.S.Nayak
S/o late Shankar Nayak
Aged about 64 years
Ex. Registrar
Karnataka State Open University
Mukthagangothri,
Mysuru-570 026
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Residing at Sonali Nivas,
No.1-873/5, Venkateshnagar,
Near Deshmuk Apartment
Kalburgi-585 102.
...Petitioner
(By Sri Eshwara H.H., Advocates)
AND:
1. The State of Karnataka
by Police Inspector
Jayalakshmipuram Police Station,
Mysuru,
Represented by its State Public Prosecutor
High Curt Building
Bengaluru560 001.
2. The Registrar
Karnataka State Open University
Mukthagangothri, Mysuru-570 006.
...Respondents
(By Sri M.Divakar Maddur, HCGP for R1;
Sri Sharana Patil, Advocate for
Sri Sonthosh S. Nagarale, Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the entire proceedings in Crime
No.53/2019 registered by the 1st respondent
Jayalakshmipuram Police Station, for the offences
punishable under Sections 406, 409 and 420 r/w. 34 of
IPC against the petitioner dated 17.12.2019 pending on the
file of the I Additional Civil Judge (Sr. Dn.) and CJM, JLB
Road, Mysuru City.
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IN CRIMINAL PETITION No.8772/2019:
BETWEEN:
Prof. B.S.Vishwanath
S/o B.N.Sannanayak
Aged about 60 years
Ex. Registrar
Karnataka State Open University
Mukthagangothri, Mysuru-570 026
Residing at No.163,
5th Main Road A Block,
3rd Stage, Vijayanagar
Mysuru-570 017.
...Petitioner
(By Sri Eshwara H.H., Advocates)
AND:
1. The State of Karnataka
by Police Inspector
Jayalakshmipuram Police Station, Mysuru,
Represented by its State Public Prosecutor
High Curt Building
Bengaluru560 001.
2. The Registrar
Karnataka State Open University
Mukthagangothri,
Mysuru-570 006.
...Respondents
(By Sri M.Divakar Maddur, HCGP for R1;
Sri Sharana Patil, Advocate for
Sri Sonthosh S. Nagarale, Advocate for R2)
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This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the entire proceedings in Crime
No.53/2019 registered by the 1st respondent
Jayalakshmipuram Police Station, for the offences
punishable under Sections 406, 409 and 420 r/w. 34 of
IPC against the petitioner dated 17.12.2019 pending on the
file of the I Additional Civil Judge (Sr. Dn.) and CJM, JLB
Road, Mysuru City.
These Criminal Petitions coming on for Orders
'through Video Conference', this day, the Court made the
following:-
ORDER
Criminal Petition No.8762/2019 has been filed by the petitioner-accused No.1, Criminal Petition No.8752/2019 has been filed by petitioner-accused No.2, Criminal Petition No.8768/2019 has been filed by the petitioner-accused No.4 and Criminal Petition No.8772/2019 has been filed by the petitioner-accused No.3 under Section 482 of Cr.P.C. to quash the complaint dated 20.11.2019 and the FIR registered in Crime No.53/2019 at Jayalakshmipura Police Station, Mysuru, for the offence punishable under Sections 406, 409, 420 r/w 34 of IPC pending on the file of Additional Civil Judge (Sr.Dn.) and CJM, JLB Road, Mysuru City.
-7-2. I have heard the learned Senior Counsel Sri.Jayakumar S.Patil, Dinesh Kumar K.Rao, Eshwara H.H. for the petitioners virtually and the learned High Court Government Pleader Sri.M.Divakar Maddur for respondent No.1 and Sri.Sharana Patil for Sri.Santhosh S.Nagarale for respondent No.2 virtually.
3. The brief facts of the case are that the 2nd respondent report stated that the Hon'ble His Excellency the Governor and Chancellor of the University directed to conduct one man committee enquiry regarding the irregularities committed in the University. After the enquiry the report has been submitted. His Excellency the Governor sought for investigation with regard to connivance and conspiracy of irregularities as provided under Section 8(8) of the Karnataka State Open University Act, 1992. On the basis of the complaint, a case has been investigated and 'B' report has been submitted.
-8-Subsequently, on 20.11.2019 second complaint has been filed.
4. It is the submission of the learned Senior Counsel that the petitioners-accused have been falsely implicated in the present case only with an intention to harass the petitioners-accused. It is his further submission that one man commission had clearly and categorically held and closed the case as against the petitioners and the same was within the knowledge of respondent No.2. It is his further submission that the first complaint has been filed with similar allegations on 19.8.2016 and the Investigating Agency investigated the said case and filed the 'B' report and the said aspect has been contested by the complainant by filing a protest petition on 20.11.2018 before the learned Magistrate and the said case is still pending in Crime No.42/2016. It is his further submission that 'B' report has to be heard and a decision has to be taken. Under the said circumstances a second complaint has been registered on 20.11.2019 alleging the same transaction and by relying -9- upon the same audit report. It is his further submission that when the first complaint has been filed and a 'B' report has been given and same has been pending in a protest petition, then under such circumstances the second complaint filed is nothing but abuse of process of law, abuse of right of the petitioner and it is also violation of Article 21 of the Constitution. In order to substantiate his said contention he has relied upon the decision in the case of Pattu Rajan Vs. State of Tamil Nadu reported in (2019) 4 SCC 771. It is his further submission that when the first complaint is there, filing of the second complaint is not maintainable. In order to maintain the fresh complaint, there must be fresh evidence or fresh facts. But in the instant case on hand, no such allegations have been made and on similar allegations the second complaint has been filed. In order to substantiate the said contention he has relied upon the decision in the case of Samta Naidu and another Vs. State of Madhya Pradesh and another reported in 2020 SCC OnLine SC 252. It is his further submission
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that when the Investigating Agency has concluded the investigation and has filed the 'B' report, then under such circumstances, the second investigation is not permissible, as already the first investigation reaches its finality. In order to substantiate his said contention he has relied upon the decision in the case of Prem Chand Singh Vs. the State of Uttar Pradesh and Another reported in 2020 SCC OnLine SC 144. It is his further submission that one man commission has also given a favourable report in favour of the petitioners. Then under such circumstances, proceeding with the second petition is nothing but abuse of process of law. On these grounds he prayed to allow the petition and to quash the proceedings. The other counsels appearing on behalf of the petitioners substantiating the arguments of the learned Senior Counsel and they also prayed to quash the proceedings.
5. Per contra, the learned counsel for the respondent No.2 vehemently argued and submitted that the protest petition is pending. However, the said petition has been
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filed by the Auditor and now the present complaint has been filed by the Registrar by giving all details of the irregularities. It is his further submission that the present petitions at this juncture are not maintainable and the same are liable to be dismissed. On these grounds he prayed to dismiss the petition. The learned High Court Government Pleader by substantiating the arguments of the learned counsel for respondent No.2 also prayed to dismiss the petitions.
6. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records.
7. On perusal of the records it is not in dispute that the first complaint has been filed on 19.8.2016 and on the basis of the said complaint a case has been registered in Crime No.42/2016 for the offences punishable under Sections 406, 409 r/w 149 of IPC in the same police station and subsequently the investigation has been
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conducted and 'B' report has been submitted before the Court on 17.10.2017. It is also not in dispute that subsequently the said 'B' report has been contested by the complainant by filing his objections on 20.11.2018. It is also noticed from the order sheet of the trial Court that after filing of the objections to the 'B' report, the case has been listed for hearing regarding the 'B' report. When the case is already pending in Crime No.42/2016 by with the same allegations, then under such circumstances the second complaint filed on 20.11.2019 on similar set of facts and circumstances is nothing but abuse of process of law. When the protest petition is pending and the complainant is pursuing the said protest petition and on the same cause of action if one more complaint is filed, it is going to violate the fundamental rights as guaranteed under Article 21 of the Constitution.
8. It is trite law that the second FIR in respect of an offence committed in the course of the same transaction is not only impermissible, but it is also violative of Article 21
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of the Constitution. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Pattu Rajan quoted supra. At paragraph 22 it has been observed as under:
22. There cannot be any dispute that a second FIR in respect of an offence or different offences committed in the course of the same transaction is not only impermissible but also violates Article 21 of the Constitution. In T.T. Antony v. State of Kerala, this Court has categorically held that the registration of a second FIR (which is not a counter case) is violative of Article 21 of the Constitution. It is relevant to note paras 19, 20 and 27 of the said decision in that regard: (SCC pp. 196-97 & 200) "19. The scheme of CrPC is that an officer in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the evidence collected, he has to form an opinion under Section 169 or 170 CrPC, as the
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case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation, normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC.
20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences.
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On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the officer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC.
27. A just balance between the fundamental rights of the citizens under Articles 19 and 21 of the Constitution and the expansive power of the police to investigate a cognizable offence has to be struck by the court. There cannot be any controversy that sub-section (8) of Section 173 CrPC empowers the police to make further investigation, obtain further evidence (both oral and documentary) and forward a further report or reports to the Magistrate. In Narang case it was, however, observed that it would be appropriate to conduct further investigation with the permission of the court. However, the sweeping power of investigation does not
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warrant subjecting a citizen each time to fresh investigation by the police in respect of the same incident, giving rise to one or more cognizable offences, consequent upon filing of successive FIRs whether before or after filing the final report under Section 173(2) CrPC. It would clearly be beyond the purview of Sections 154 and 156 CrPC, nay, a case of abuse of the statutory power of investigation in a given case. In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution."
9. Even it is trite law that when the issue has been reached its finality, then the second complaint is not maintainable on identical facts. This proposition of law has
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been laid down by the Hon'ble Apex Court in the case of Samta Naidu and another quoted supra. At paragraphs 22 and 26 it has been observed as under:
22. In Poonam Chand Jain v. Fazru14 the issue whether after the dismissal of the earlier complaint had attained finality, could a second complaint be maintained on identical facts was considered as under:--
"14. In the background of these facts, the question which crops up for determination by this Court is whether after an order of dismissal of complaint attained finality, the complainant can file another complaint on almost identical facts without disclosing in the second complaint the fact of either filing of the first complaint or its dismissal.
15. Almost similar questions came up for consideration before this Court in Pramatha Nath Talukdar v. Saroj Ranjan Sarkar2. The majority judgment in Pramatha Nath2 was delivered by Kapur, J. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code (for short "the Code") is, however, no bar to the entertainment of a second complaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as:
(a) where the previous order was passed on incomplete record, or
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(b) on a misunderstanding of the nature of the complaint, or
(c) the order which was passed was manifestly absurd, unjust or foolish,or
(d) where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings.
16. This Court in Pramatha Nath made it very clear that interest of justice cannot permit that after a decision has been given on a complaint upon full consideration of the case, the complainant should be given another opportunity to have the complaint enquired into again. In para 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which could not with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the complainant to place some evidence before the Magistrate which are in his possession and then if the complaint is dismissed adduce some more evidence. According to this Court, such a course is not permitted on a correct view of the law. (para 50, p. 899)
17. This question again came up for consideration before this Court in Jatinder Singh v. Ranjit Kaur. There also this Court by relying on the principle in Pramatha Nath held that there is no provision in the Code or in any other statute which debars a complainant from filing a second complaint on the same allegation as in the first complaint. But this Court added when a Magistrate conducts an
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enquiry under Section 202 of the Code and dismisses a complaint on merits a second complaint on the same facts could not be made unless there are "exceptional circumstances". This Court held in para 12, if the dismissal of the first complaint is not on merit but the dismissal is for the default of the complainant then there is no bar in filing a second complaint on the same facts. However, if the dismissal of the complaint under Section 203 of the Code was on merit the position will be different.
18. Saying so, the learned Judges in Ranjit Kaur held that the controversy has been settled by this Court in Pramatha Nath and quoted the observation of Kapur, J. in para 48 of Pramatha Nath: (AIR p. 899, para 48) "48. ... An order of dismissal under Section 203 of the Criminal Procedure Code, is, however, no bar to the entertainment of a second complaint on the same facts but it will be entertained only in exceptional circumstances e.g. where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or foolish or where new facts which could not, with reasonable diligence, have been brought on the record in the previous proceedings, have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the complainant upon a full consideration of his case, he or any other person should be given another opportunity to have his complaint enquired into."
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19. Again in Mahesh Chand v. B. Janardhan Reddy, a three-Judge Bench of this Court considered this question in para 19 at p. 740 of the Report. The learned Judges of this Court held that a second complaint is not completely barred nor is there any statutory bar in filing a second complaint on the same facts in a case where a previous complaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take cognizance of an offence and issue process if there is sufficient ground for proceeding. In Mahesh Chand this Court relied on the ratio in Pramatha Nath and held if the first complaint had been dismissed the second complaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha Nath were reiterated. Therefore, this Court holds that the ratio in Pramatha Nath is still holding the field. The same principle has been reiterated once again by this Court in Hira Lal v. State of U.P. In para 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand discussed hereinabove.
20. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second complaint in this case was on almost identical facts which was raised in the first complaint and which was dismissed on merits. So the second complaint is not maintainable. This Court finds that the core of both the complaints is the same. Nothing has been disclosed in the second complaint which is substantially new and not disclosed in first
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complaint. No case is made out that even after the exercise of due diligence the facts alleged in the second complaint were not within the of the first complainant. In fact, such a case could not be made out since the facts in both the complaints are almost identical. Therefore, the second complaint is not covered within exceptional circumstances explained in Pramatha Nath. In that view of the matter the second complaint in the facts of this case, cannot be entertained."
(Emphasised supplied)
23. xxxx xxxx xxxx.
24. xxxx xxxx xxxx.
25. xxxx xxxx xxxx
26. To similar effect are the conclusions in Ranvir Singh Poonam Chand Jain. Para 16 of the Poonam Chand Jain also considered the effect of para 50 of the majority judgment in Talukdar. These cases, therefore, show that if the earlier disposal of the complaint was on merits and in a manner known to law, the second complaint on "almost identical facts" which were raised in the first complaint would not be maintainable. What has been laid down is that "if the core of both the complaints is same", the second complaint ought not to be entertained.
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10. Keeping in view the ratio laid down in the above decisions and by taking into consideration the factual matrix of the case on hand, when already the first complaint and 'B' report has been filed by the Investigating Agency and the same has been contested and is still pending before the jurisdictional Court, the said issue is sub-judice, then under such circumstances, the second complaint is nothing but abuse of process of law only with an intention to harass the petitioners. In that light, it is a fit case to exercise the power under Section 482 of Cr.P.C.
and to quash the proceedings.
11. Accordingly, the petitions are allowed and the proceedings initiated as against the petitioners alone on the basis of the complaint dated 20.11.2019 in Crime No.53/2019 of Jayalakshmipuram Police Station, Mysuru, for the offences punishable under Sections 406, 409, 420 r/w 34 of IPC are hereby quashed.
Sd/-
JUDGE *AP/-