Karnataka High Court
Sanjay Danachand Ghodawat vs Annasaheb Malgonda Patil on 23 July, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD OF JULY, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 10763/2013
BETWEEN:
1. Shri. Sanjay Danachand Ghodawat,
Age: 47 years, Occ: Industrialist,
R/o Majale, Tal. Hatkanagla,
Dist. Kolhapur,
Maharashtra State.
2. Shri. Satish S/o Danchand Ghodawat,
Age: 51 years, Occ: Industrialist,
R/o 6th Lane, Jayasinghpur,
Tal. Shirol, Dist. Kolhapur,
Maharashtra State.
3. Shri. Atul S/o Mahadevrao Shinde,
Age: 42 years, Occ: Director,
Godhawat Pan Masala
Products Pvt. Ltd., R/o Near Deccan
Spinning Mill, Ichalkaranji,
Tal. Hathakanagala,
Dist. Kolhapur,
Maharashtra State.
2
4. Shri. Shamrao S/o Bhausao Hande,
Age: 42 years, Occ: Managing Director,
Godhawat Pan Masala
Products Pvt. Ltd.
R/o Sushila Nagar,
Behind Kachare Society,
Yayasinghpur, Tal. Shirol,
Dist. Kolhapur, Maharashtra State.
5. Shri. Sunil S/o Amrutlal Shah,
Age: 45 years, Occ: Trustee,
Sanjay Godhawat Institute,
Atigre, R/o Near Deccan
Spinning Mill, Ichalkaranji,
Tal. Hathakanagala,
Dist. Kolhapur, Maharashtra State.
6. Shri. Dattatreya S/o Anna Pujari,
Age: 42 years, Occ: Service,
R/o Manakapur, Tal. Chikkodi,
Dist. Belgaum.
7. Shri. Sachin S/o Subhas Chougale,
Age: 32 years, Occ: Service,
R/o Manakapur, Tal. Chikkodi,
Dist. Belgaum. Petitioners
(By Sri. Veeresh Budihal &
Sri. Prashant F. Goudar, Advs.)
AND:
1. Sri. Annasaheb Malgonda Patil,
Aged about 49 years,
Occ: Service, R/o Saraswati Nagar,
3
Vishram Bagh, Sangli,
Dist. Sangli,
Maharashtra State.
2. State of Karnataka,
Represented by its SPP,
Dharwad Bench. ... Respondents
(By Sri. Raviraj C. Patil, Adv. for R-1,
Sri. K.S. Patil, HCGP for R-2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 OF CODE OF CRIMINAL PROCEDURE,
PRAYING TO QUASH THE PROCEEDINGS IN
COMPLAINT IN P.C. NO. 23/2011 VIS-À-VIS C.C.
NO.454/2012 PENDING BEFORE THE 1ST ADDITIONAL
CIVIL JUDGE AND J.M.F.C., CHIKODI; SET ASIDE THE
ORDER DATED 23.05.2013 IN P.C. NO.23/2011 VIS-À-
VIS C.C. NO. 454/2012 PENDING BEFORE THE 1
ADDITIONAL CIVIL JUDGE AND J.M.F.C., CHIKODI.
THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
ORDER
The petitioners approached this Court for the third time seeking quashing of the entire proceedings in C.C. No.454/2012 pending on the file of the 1st Additional Civil Judge and J.M.F.C., Chikodi, registered against 4 the petitioners for the offences punishable under Sections 143, 147, 148, 324, 307, 504, 506 r/w 149 of I.P.C.
2. After the appearance of the respondents, the Court heard the arguments of both the sides. Both Counsel have submitted their elaborate arguments along with some Rulings of the Apex Court. I would like to discuss the arguments of the learned Counsel at the relevant stage. It is just and necessary for this Court to have brief factual matrix of this checkered litigation between the parties to the proceedings. The records disclose that on 21.01.2011 at about 7.45 a.m. near North Gate of Star Factory situated at Manakapur Village within the jurisdiction of Sadalaga Police, Belgaum District, some of the persons by name Anna Saheb Patil and 7 others, totally 8 accused persons formed into an unlawful assembly came in a Hero Honda motorcycle and a Scorpio vehicle to that spot. 5 The complainant by name Dattatreya Appanna Poojara and other his colleagues demanded for the proper disbursement of the salary to the workers of the said Star Factory. In this context the complainant and others requested the other workers not to go to the factory to do any work. It is further alleged that the accused persons have enraged themselves and refused to heed to the request of the accused persons. Therefore, all the accused persons have took clubs, stones, etc., assaulted the complainant - Dattatreya Poojara and others, thereby committed the offences under the above said provisions.
3. On these allegations, the Police have registered a case in Crime No. 17/2011, investigated the matter and submitted a charge sheet against 8 accused persons. Out of them accused No.1 is the respondent No.1 before this Court in this petition. 6
4. It is the case of the petitioners that, on that particular day the incident actually happened, but, not as narrated by the respondent No.1 herein and other witnesses of the said case. It is submitted that narrating the real facts as to how the incident happened, the petitioners herein have moved a private complaint in P.C. No.23/2011 which is subsequently registered as C.C. No.454/2012 making allegations that the respondent No.1 is the Founder of different companies under the Sanjay Ghodawat Group i.e. Godhawat Pan Masala Products Private Limited, Manakapur. The petitioners herein are the workers of the above named Industry run by the respondent No.1 and other persons. It is alleged that there was a meeting held on 26.11.2010 between the petitioners and other members of Swabhiman Kamagar Sangatan with respondent No.1 and others on behalf of their Company. On 11.12.2010 the respondent No.1 had agreed to fulfil 7 various demands of the workers, but they did not stick to their assurance. In this regard, on 21.01.2011 at about 6.45 A.M. the respondent No.1 and others have intimated the petitioners and requested them to come over to the Ghodawat Pan Masala Products premises at Manakapur. The petitioners in fact went there along with their associates. When they reached near the gate premises at about 7.30 a.m. all of a sudden the respondent No.1 and other 7 to 8 persons came from inside the gate holding sticks, iron rods, big knifes and stones and assaulted the complainant and his associates by abusing them in filthy language and also instigated others to assault the petitioners herein and his associates. By hurling threatening calls the respondent No.1, other persons have indiscriminately assaulted with the weapons they have on the petitioners by surrounding the 1st petitioner and his associates and thereby caused severe injuries to them and caused 8 fracture to the upper and lower limbs of the 1st petitioner and also caused injury to others, which are fatal in nature. However, the complainant and others survived because of the treatment. It is specifically stated that the complainant and the petitioners and others were also admitted to the Hospital in this context and they came to know that Sadalaga Police have registered a crime in No.17/2011 against the petitioners. In fact, the petitioners obtained anticipatory bail and thereby they came to know that the Police have not registered any case though the petitioners have informed the Police regarding the offences committed by the respondent No.1 and others. As the Police have shown their inaction as such they filed a private complaint before the jurisdictional Magistrate alleging the above said offences.
5. After lodgment of the complaint, the jurisdictional Magistrate in fact at the first instance took 9 cognizance of the offences alleged against the respondent No.1 and others and recorded the sworn statement of the petitioner No.1 and others, passed a detailed order directing to register a case against the respondent No.1 and 6 others for the offences punishable under Sections 109, 143, 147, 148, 149, 307, 323, 324, 326, 352, 500, 506 r/w 34 of I.P.C. and ordered to issue NBW against respondent No.1 and six others to secure their presence.
6. The above said order passed by the learned Magistrate dated 13.04.2012 was subjected to challenge before this Court in Crl. P. No. 2252/2012. This Court vide orders dated 25th July 2012 allowed the said petition and directed the Magistrate to reconsider the matter by issuing specific directions. The directions issued are found at paragraph 7 of the order which reads as follows :
10
"It is noted, as contended by the learned Counsel for the respondent that, the procedure prescribed under Section 202 of Cr.P.C. is that, on receipt of complaint, the Magistrate is authorised to take cognizance and to examine the complainant on oath before taking cognizance. If the Magistrate finds that it is a case, which is to be exclusively tried by the Court of Sessions, not only the complainant, but also his witnesses are to be examined as provided under the proviso to Sub-Section (2). This is a contention, which would be relevant, if there was no other case, which has already been committed to the court of Sessions. The difference in the present case on hand is that, there was a police complaint, which has already been committed to the Court of Sessions in respect of the same incident. Therefore, the question of the complainant and his witnesses being examined all over again to enable the Court to decide whether the case requires to be committed to the Sessions Court is redundant. However, it 11 would be necessary for the complainant to satisfy the Court in terms of the Section 202 (1)(a) of Cr.P.C. If the offence complained of is triable exclusively by the Court of Sessions on prima-facie, then the bonafides of the complainant would have to be examined by the Magistrate in deciding whether the case can be so committed, it should not be mechanical".
Finding some discrepancy in the above order on the ground that there was no specific order quashing the order passed by the Trial Court or setting aside the orders impugned under the said petition, the petitioners once again approached this Court seeking clarification. In the same petition, vide orders dated 25th September 2012, this Court has clarified that, the conclusion of this Court in the last paragraph of the earlier order in unequivocal terms required the Magistrate to reconsider the case afresh which could be termed as a direction for de-nova proceedings. The said order reads thus, 12 "the complainant in the said case to satisfy the Court in terms of Section 202 (1) (a) of Cr.P.C. If the offence complained of is triable exclusively by the Court of Sessions on a prima facie, then the bonafides of the complainant would have to be examined by the Magistrate in deciding whether the case can be so committed, it should not be mechanical".
The respondent was required to satisfy the Magistrate about his bonafides and to make out a case for taking cognizance and secondly the Magistrate was directed to examine the case as made out by the complainant for ascertaining as to whether it was a bonafide case and to decide as to whether it is a fit case for committal to the Sessions Court for trial. Since it is clarified that the earlier order is nothing but a direction for de-novo consideration of the materials on record, bearing in mind the observations of this Court and 13 virtually it amounts to setting aside the orders of the Magistrate dated 13.04.2012.
7. After receipt of the above said clarificatory order passed by this Court, again it appears the Magistrate proceeded to reconsider the same and passed an order afresh on 23rd Day of May 2013 in C.C. No.454/2012, again issued process against respondent No.1 and six others for the above said offences, against which order the present petition is filed.
8. The learned Senior Counsel Sri. K.G. Raghavan, elaborated his arguments contended that on three counts, the orders of the learned Magistrate is not in compliance with the directions issued earlier by this Court.
9. He contended that this Court has directed the Magistrate to consider the bonafides of the complaint in view of the pendency of a criminal case already before 14 the Sessions Court by virtue of the Charge sheet filed by the Police.
Secondly, it is contended that the Magistrate has not recorded his satisfaction by giving reasons with regard to the existence of a factual allegations, which constitute offences alleged against the petitioners.
The Magistrate has not properly appreciated the delay in filing the complaint and also has not properly followed Section 202 of Cr.P.C. in its proper perspective.
10. He argued by drawing my attention to the orders passed by this Court earlier, specifically to paragraphs 5 to 7 of the orders wherein, it is explicitly mentioned that the complainant has to satisfy the Court in terms of Section 202(1)(a) of Cr.P.C. and the learned Magistrate has to prima facie ascertain the bonafides of the complainant in order to ascertain whether the case can be committed to the Court of Sessions and the said process should not be mechanical. Subsequently, in 15 continuation of the arguments, the learned Counsel appearing for the petitioners also contended that the sworn statement and the complaint averments even if they are accepted on their face value, are not sufficient to come to a conclusion that there is a prima facie case made out against the petitioners to call them before the Court to answer the allegations made against them. The Doctor has not been examined, injury certificates have not been marked and independent witnesses are not examined before the Magistrate in order to establish a prima facie case for issuance of process against the accused persons.
11. Per contra, the learned Counsel for the respondent strenuously contended that though the Magistrate has not elaborately discussed in his order before issuance of process, but it is only prima facie satisfaction of the Magistrate which is explicit in the orders. He argued before the Court that, on the earlier 16 occasion, the arguments of the learned Counsel for the petitioners was that a case which was already pending before the Sessions Court and the present complaint is a counter case, as such both have to be committed to the Court of Sessions and the Court has to try the cases simultaneously. Therefore, the learned Magistrate according to the petitioners' Counsel ought to have committed the counter cases under Section 209 of Cr.P.C. and a different yardstick could not be applied in respect of the alleged counter case in relation to the same incident. But, now the arguments is altogether different before this Court. Therefore, he contended that when the case and counter case are clearly establishes, the Magistrate has to secure the presence of the accused under Section 202 of Cr.P.C. and then commit the case to the Court of Sessions.
12. He also contends that the opinion of the Magistrate in his order is perfectly in compliance with 17 the directions issued by this Court earlier, though in so many words the Magistrate has not stated but on over all reading of the order, shows that he has applied his judicious mind and passed the orders which is impugned under this petition. He also contends that, taking cognizance and the proceeding under Sections 200 to 204 of Cr.P.C. should not be like a mini trial, but on over all satisfaction of the factual materials available on record, if the Magistrate is satisfied that there is a prima facie case then the Magistrate has to secure the accused persons by issuing process under Section 204 of Cr.P.C. and if the offence is exclusively triable by the Court of Sessions the same has to be committed to the Court of Sessions.
13. Having heard the arguments of the learned Counsel for the petitioners and the respondents, it is just and necessary to look into the orders passed by this Court earlier and the orders passed by the learned 18 Magistrate and whether the orders impugned under this petition comply the directions issued by this Court.
14. I have already referred to the orders of this Court passed earlier on 25.07.2012 and a clarificatory order on 25.09.2012. In both the cases the direction issued to the Magistrate was that the learned Magistrate also ought to have considered the sensation created in the case before the said Court, with reference to a case already committed to the Court of sessions. The difference being that the present complaint is a private complaint and the proviso to Sub-Section (1) to Section 202 r/w Sec. 209 of Cr.P.C. enables the Magistrate to commit the case to the Court of Sessions. The Court was sufficiently informed of the case already committed relating to the same incident on which the petitioners are aggrieved. Therefore, the Magistrate has to satisfy himself about the necessity of committing this case also to the Sessions Court. On the other hand, the 19 complainant has to satisfy the Court in terms of Section 202(1)(a) of Cr.P.C. and if the offence is triable exclusively by the Court of Sessions on satisfying with regard to the bonafides of the complainant, the Magistrate has to decide the matter and it should not be a mechanical one.
15. In this background, though the learned Counsel for the petitioners cited innumerable Rulings as to the guidelines of the Apex Court while exercising the powers under Section 482 of Cr.P.C. He drawn my attention to the decision reported in AIR 2010 SC 201 between M.N. Ojha and others Vs. Alok Kumar Srivastav and another the Apex Court relying upon its earlier Ruling reported in Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others [(1998) 5 SCC 749] held :
"Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be 20 set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind. The Magistrate has to scrutinize the contents of the complaint, leave aside the material documents available on record and he should not be a silent spectator at the time of recording of preliminary evidence before summoning the appellants".
If the Act of the Magistrate is bereft of application of the judicious mind then the High Court cannot refuse to exercise its jurisdiction if the interest of justice so demands. Where the allegations made in the FIR or the complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, the High Court can interfere with such situations. 21
16. The perusal of the other Ruling cited by the learned Counsel clearly discloses that the observations made in the Rulings are nothing but the consistent reiteration of the guidelines laid down by the Apex Court in State of Haryana and others Vs. Bhajan Lal and others reported in AIR 1992 SC 605. In the said case, the following guidelines have been laid down referring to the inherent powers of the High Court under Section 482 of Cr.P.C. Though not the said guidelines are so exhausted but the said guidelines run as a road man as to how the extraordinary powers under Section 482 of Cr.P.C. can be exercised by the Court. The said guidelines 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.22
(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 the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(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.23
(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 concerned Act (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 concerned Act, 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""
In reply to the above rulings, the respondent's Counsel also relied upon a ruling of Apex Court 24 reported in AIR 1980 SC 1780 between Kewal Krishan Vs. Suraj Bhan and another, wherein it was held that:
"At the stage of Sections 203 and 204, Criminal Procedure Code in a case exclusively triable by the Court of Sessions, all that the Magistrate has to do is to see whether on a cursory perusal of the complaint and the evidence recorded during the preliminary inquiry under Sections 200 and 201, Criminal Procedure Code, there is prima facie evidence in support of the charge levelled against the accused. All that he has to see is whether or not there is "sufficient ground for proceeding"
against the accused. At this stage, the Magistrate is not to weigh the evidence meticulously as if he were the Trial Court. The standard to be adopted by the Magistrate in scrutinising the evidence is not the same as the one which is to be kept in view at the stage of framing charges. This Court has held in Ramesh Singh's case, that even at the stage of framing charges the truth, veracity and effect of the evidence which the complaint produces or proposes 25 to adduce at the trial, is not to be meticulously judged. The standard of proof and judgment, which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of framing charges. A fortiori, at the stage of Sections 202/204, if there is prima facie evidence in support of the allegations in the complaint relating to a case exclusively triable by the Court of Sessions, that will be a sufficient ground for issuing process to the accused and committing them for trial to the Court of Sessions".
17. In view of the above said Rulings, this Court has to examine the order of the Trial Court to find out whether the Magistrate in view of the directions issued by this Court has applied his judicious mind and satisfied himself with regard to the existence of a prima
-facie case, that the present case is a counter case and the same is also to be tried by the Court of Sessions. Whether the Magistrate was also satisfied with regard to the bonafides of the complaint and then issued process 26 against the accused. I would like to discuss with regard to the delay in filing the complaint and how it has been considered by the Court little later and also the Court has to find out whether the delay in filing the complaint is not at all explained in the complaint and whether the Magistrate without looking into the said aspect has issued process against the accused persons.
18. On consolidation of the guidelines and the observations made by the Hon'ble Apex Court, in my opinion, the following factors can be raised.
19. The Court should bear in mind that at the time of issuing process, the Court has to pass through the procedure as contemplated under Section 200 to 204 of Cr.P.C. Section 200 contemplates that, whether the Magistrate has got power to take cognizance of an offence under Section 190 of Cr.P.C., he has to take cognizance of the offence immediately after going 27 through the complaint averments, satisfying himself that the averments made in the complaint constitute some penal offences against the accused persons and thereafter he has to examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and his witnesses. In fact, such procedure has been followed in this particular case.
20. Section 202 of Cr.P.C. envisages under what circumstances the Magistrate can postpone the issue of process. Though the learned Counsel for the petitioners argued that at the earlier stages this ground was not taken but, subsequently they have come up with this ground. Nevertheless, on perusal of this provision it clearly indicates that -
"the Magistrate who is authorised to take cognizance under Section 192 of Cr.P.C. may, 28 if he thinks fit and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.
This provision mandates that the Magistrate himself can inquire into the matter or he can direct the investigation to be made by a Police Officer. If the accused are residing at a place beyond the area in which he exercises his jurisdiction, if he feels that till the enquiry is conducted issuance of process is to be postponed, then he can inquire into the truth and thereafter satisfying himself that there is sufficient ground to proceed, he can issue process. This Court has posed a question to the learned Counsel for the 29 petitioners as to what is the difference in the provision under Section 202 in the amended provision compared to the earlier existed provision. Except it is made mandatory to the Magistrate that till the enquiry is conducted he shall postpone the issue of process against the accused if the accused is residing at a place beyond the area. In spite of taking time, there is no differentiation made by the learned Counsel except admitting that the said procedure is made mandatory under the amended provisions. Therefore, it goes without saying that in view of the said provision, if the accused is residing at a place beyond the area in which the Magistrate exercises his jurisdiction, he shall postpone the issue of process unless he makes an enquiry himself or direct the Investigation to be made by the Police Officer and secure the information to satisfy himself whether there is sufficient ground to proceed against the accused or not.30
21. In this particular case, the proceedings of the Magistrate if it is seen, after taking cognizance, he himself has inquired into the matter and gave opportunity to the complainant and his witnesses to adduce their sworn statement before the Court and the statements of the thereafter analysing the contents of the complaint and the statements of the witnesses and also bearing in mind the directions of this Court passed an orders afresh satisfying himself that there existed a prima facie case for issuance of process against the accused. The question of whether the complainant has satisfied the Court in terms of Section 202(1)(a) of Cr.P.C. is to be looked into by the Court. But I am unable find fault with the procedure followed by the learned Magistrate cannot be find fault with. After recording the sworn statement of the complainant and the evidence of witnesses under Section 202(1)(a) of Cr.P.C., if it appears to the Magistrate that the offence 31 complained of is triable exclusively by the Court of Sessions, then he shall call upon the complainant to produce all his witnesses and examine them on oath. Here itself it can be said that the complainant has examined himself on oath and examined as many as (6) six more witnesses and thereafter perhaps satisfying himself that he has no more witnesses, the Court has recorded its finding with regard to its satisfaction regarding the existing of a prima facie case and issued process. Therefore, the procedurally the order of the learned Magistrate is strictly in compliance with Section 202 of Cr.P.C. Section 203 of Cr.P.C. mandates that after considering the statements on oath if any, of the complainant and the witnesses and the result of the enquiry, if the Magistrate is of the opinion that there is no sufficient ground, then he shall dismiss the complaint. Therefore, if the order is passed under Section 204 of Cr.P.C. where the Magistrate records the 32 finding that there is sufficient ground for proceeding against those accused, then he shall issue process to the accused or a warrant or in a warrant case, he may issue a warrant to the accused. Therefore, if once the order under Section 204 of Cr.P.C. is passed considering the materials on record, it goes without saying that the learned Magistrate has complied with Section 203 of Cr.P.C. also. Therefore, looking to the above said procedural aspect, the learned Magistrate in this particular case has meticulously followed the procedure before issuance of the process against the accused persons.
22. Now, coming to the Rulings cited by the learned Counsel above, as I have already narrated that on culmination of the guidelines noted above the Court has to see whether it is an extraordinary case where the Court can exercise powers under Section 482 of Cr.P.C. The important three guidelines in Bhajan Lal's case 33 noted above are to be looked into by this Court. Those are :
"(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.
(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.
(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.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the 34 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""
The orders passed by the learned Magistrate discloses that he has the knowledge of the observations made by this Court and the directions issued in the earlier orders. The learned Magistrate has perused the materials placed by the complainant and the sworn statement and evidence of the witnesses at paragraph 4 of his orders and he has in fact considered the factual matrix of this case at paragraph 5 of his order. He has in fact reiterated the overt acts of the accused persons as stated by the complainant. Paragraphs 6 to 11 discloses that the Magistrate has applied his mind to the evidence of other witnesses examined and about the overt acts told by them.
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23. I have also carefully perused the said observations made by the Trial Judge. In fact, he has elucidated the statements of the witnesses and ultimately on the basis of such elucidation of the materials on records, has come to the conclusion that the allegations made in the complaint are fully supported by the sworn statement and that the allegations constitute the offences alleged against the accused persons. I have also carefully perused the statement of the witnesses. In fact, the complainant and the statement of witnesses have stated that the overt acts of the accused persons and the attempt made by this accused Dattatreya Pujari to stab the complainant who received the injury to his left hand, etc. I won't find any strong reason to differ from the opinion of the Magistrate what the Court has to see at the time of taking cognizance and issuing summons under Section 204, the Court has to only find out 36 whether there are sufficient grounds for proceeding and it is not for framing of charges or for the purpose of convicting the accused. The sufficiency of materials, if they are apparently accepted, it must be sufficient to call upon the accused to answer those allegations made against them. Therefore, a very wide discretion has been given in the matter of issuance of process. Of course, it has to be used with caution, the test is not whether there are material to frame charges or the materials are sufficient to convict the accused, but whether prima facie case has been made out. Even if the offence charged is triable by the Court of Sessions, at that stage the Magistrate is debarred from appreciating or evaluating the materials on record, but only to ascertain on the face value of the evidence they constitute the offences alleged against the accused persons.
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24. On perusal of the complaint averments and the sworn statement, there are allegations against the accused persons and explanation as to how the incident happened and how the complainant and others have sustained injuries and what are all the overt acts of the accused persons, whether it falls exactly under Section 307 of I.P.C. or not is not the domain of the Magistrate to decide at that stage because it will again drag the Magistrate on to the stage of appreciation of evidence. If on prima facie looking into the material, the Magistrate is satisfied that those allegations are sufficient to constitute an offence, that itself is sufficient to proceed against the accused persons by issuing summons. Of course, if the allegations made in the complaint are so absurd and do not disclose any offence then the Magistrate can summon the accused. The Magistrate or this Court at that stage cannot appreciate the pros and cons and also conduct of the witnesses, complainant, 38 etc. Mere allegations of the offences are sufficient to issue the process. Therefore, the first ingredient that whether the allegations constitute an offence has to be answered in the affirmative holding that the Magistrate has not committed any illegality in considering the materials on record.
25. It is the direction of this Court that the complainant has to satisfy the Court in terms of Section 202(1)(a) of Cr.P.C. As I have already noted Section 202(1)(a) of Cr.P.C. which only says whether it appears to the Magistrate, if the offence complained is triable exclusively by the Court of Sessions then, he has to apply Sub-Clause (2) proviso. In this particular case, in order to establish this aspect, the complainant has examined himself and adduced the evidence of all the witnesses on his side. So therefore, no hard and fast rule is available to the Magistrate as to how to appreciate the materials on record. It is only his 39 satisfaction as to whether the allegations made in the complaint satisfy the requirement of Constitution of an offence against the accused persons, which prevails. The learned Magistrate has also analyse at paragraph 17 that the injury sustained by the injured persons is not the criteria for deciding whether an offence under Section 307 of I.P.C. is constituted and the Magistrate has gathered from surrounding circumstances and specifically satisfied himself that the offence under Section 307 of I.P.C. was also constituted. He also in fact relied upon a Supreme Court decision in this regard reported in AIR 1980 SC 1780. It is true that no Court can appreciate the evidence on record to ascertain the truth or falsity of the allegations made in the complaint and the evidence, but only to ascertain whether there are sufficient reasons against the accused.
26. Looking to the above said materials on record neither it can be said that, the allegations are not 40 sufficient to constitute an offence nor it can be said that the allegations made are so absurd that no prudent man can come to such conclusion that the allegations are insufficient to proceed against the accused. Therefore, I don't find any strong reasons to come to a conclusion that the Magistrate has committed any error in satisfying himself with regard to the materials available on record.
27. At the stage of issuing summons it is the satisfaction of the Magistrate which is a prime requirement of law and not the satisfaction of the Appellate Court or the High Courts. Under the circumstances, even if this Court comes to a different opinion on the basis of the same factual aspects, that should not be substituted to the satisfaction of the Magistrate. It is well profounded principle of Criminal jurisprudence that varieties of men will have varieties of perception, variety of understanding capacity, variety of 41 intelligence, variety of efficiency. Therefore, it all depends upon the capacity of the person who is in the helm of the affairs to understand the facts and satisfy himself. Therefore, the Court has to see when an ordinary prudent man posed with such circumstances whether such person understand the situation and say that there are sufficient materials and allegations are sufficient to proceed against the persons against whom the allegations are made.
28. Therefore, I am of the opinion the materials placed before the Court the Magistrate has satisfied himself before passing such an order and complainant has produced certain materials before the Court it is sufficient to proceed against the accused at that stage. The same principle is also applicable with regard to the analysis of the materials compared to a case already committed to Sessions Court. The learned Counsel strenuously contended that the Court has to bear in 42 mind the case has already been there before the Sessions Court on the basis of the charge sheet submitted by the Police. The learned Magistrate in fact has narrated the same at paragraph 5 that there is a counter case arising out of the same incident which is registered by Sadalaga Police in Crime No. 17/2011 and pending before the Second Additional District Judge, Belgaum. Therefore, this case is also required to be committed to the same Court. That itself clear indication that the Magistrate is having knowledge of the pendency of the said proceedings. The learned Advocate contended that the Magistrate would have been kept in mind having due regard to the sensation that the case must have created before the said Court. Though the learned Magistrate has not in so many words stated, but he has come to the conclusion that, in spite of the clash between the two groups which created sensation before the said Court, he held that it is a 43 counter case, whenever a case and counter case are reported to the Court or to the Police then the allegations made in one case cannot be mixed up with another case, each case has to be taken on its own considering the materials available on record. The Court has to refer the matter to the concerned jurisdictional Court having jurisdiction to try both the cases. It is an undisputed proposition of law that case and counter case are two different distinct and separate entities and one cannot be clubbed with another and common evidence also should not be recorded. The Court has to try both the cases separately and independently one after another and after analyzing the entire materials on record, the Court has to apply its judicious mind appreciating the evidence recorded in each case separately. But the Court has to dispose of the cases simultaneously on the same day. When such being the case, merely because there was sensation or 44 some discrepancies between two groups that should not be taken into consideration at the threshold. It is ultimately left to the parties to the proceedings to prove their cases independently. The Court at this stage on issuance of summons cannot or should not imagine what evidence the complainant is going to give, how he is going to prove his case. It is the domain of the Trial Court to appreciate all those materials on record.
29. Last but not least, the learned Counsel for the petitioners strenuously contended that there is a delay in lodging the complaint. The delay has not been properly explained and that the learned Magistrate has not properly appreciated the same.
30. The complaint averments disclose the complainant has explained the delay in lodging the complaint at paragraph 8 of the complaint stating that : 45
"When the complainant was in the Hospital he had narrated the above assault. He has in fact informed the Police and the Police assured that they will take necessary action against the accused. Thereafter, when the complainant was discharged from the Hospital immediately he surrendered before the Sadalaga Police in Crime No.17/2011 and enlarged on bail on the basis of the anticipatory bail granted to him and others. Thereafter, the complainant enquired about his complaint against the accused and came to know that no case was registered against the accused. So, again the complainant requested Sadalaga Police to register the complaint against the accused, but the Police have refused to register the complaint. Therefore, a private complaint is filed".
In the earlier orders passed by this Court the question of delay in lodging the complaint and the explanation offered by the complainant was not questioned before this Court. But at this stage before 46 this Court it is stated that though there is delay in lodging the complaint there is some explanation in the complaint how that explanation has to be considered by the Magistrate at the time of taking cognizance and issuing process. The learned Counsel for the petitioner has relied upon certain Rulings in this regard.
In a decision reported in Sahib Singh Vs. State of Haryana - AIR 1997 SC 3247 wherein it was held that :
"Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. In cases where there is a delay in lodging an FIR, the Court has to look for a plausible 47 explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an after thought or had given a coloured version of events. In such cases, the Court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with malafide intentions or with the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking jurisdiction of the Criminal Court".
In another Ruling in a decision reported in AIR 1973 SC 501 between Thulia Kali Vs. State of Tamil Nadu at paragraph 12 the Apex Court observed :
"First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the 48 standpoint of the accused. The object of insisting upon prompt lodging of the report to the Police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained".
The above said Rulings of the Apex Court are rendered undue different contexts. One decision noted above clearly discloses that the explanation offered by the complainant should be of such a nature could be appreciated properly by the Court compared with the 49 surrounding circumstances as to whether the delay have reasonably and properly explained. In another Ruling, even for the purpose of quashing the proceedings, the delay can be taken into consideration. If the Court comes to the conclusion that such delay is unreasonable, inordinate and it cannot be countenance by any other materials on record.
31. Though the learned Magistrate has not touched upon this particular point, perhaps there was no challenge to the said delay on earlier occasion before this Court. Therefore, the Magistrate has not touched upon that point but, ultimately the view taken up by the Magistrate shows that, on overall reading of the complaint averments and the statement of the witnesses he was fully satisfied that a prima facie case was made out and grounds are made out to proceed against the accused. In my opinion, it goes without saying the Magistrate has also applied his mind to paragraph 8 of 50 complaint averments and perhaps he was also satisfied with the said explanation given at that stage leaving the same to be appreciated by the Sessions Court, later, whether such explanation offered by the complainant is genuine, true and it can be considered along with the other materials on record. Therefore, I don't find any strong reasons to hold that reasons assigned for delay are sufficient to throw out the entire case.
32. It should be noted that the delay is of two types. One is delay in lodging the complaint, which prohibits the complaint under any statute for the time being imposed to lodge a complaint, that means to say complaint is barred by limitation. Second type of delay, though the complaint is in time, but there is delay in submitting the case to the Court. The two important aspects should be dealt with independently. The Magistrate has to very meticulously considered the delay if the delay point itself is sufficient to throw the 51 complaint away from the Court in its entirety. Further, the delay debars the Court from taking cognizance itself. Chapter 36 of the Code of Criminal Procedure imposes restrictions on Court for taking the cognizance. If the complaint is filed beyond the period of limitation as contemplated under the said Chapter then it goes to the route of the cognizance taken by the Magistrate itself. Therefore, at that stage, the Magistrate shall look into the said aspects whether the complaint can be dismissed at that stage itself, as the provisions of Criminal Procedure Code envisages that no Court shall take cognizance of offence if it is barred by time.
33. So far as the delay in lodging the complaint by explanation by the complainant such delay cannot be made so easy for the purpose of throwing out the case of the complainant, an opportunity should be provided to explain the delay considered with the other 52 circumstances of the case. Therefore, I am unable to upheld the contention of the learned Counsel. I am not even impress by the argument of the learned Counsel for the petitioner that the delay itself is sufficient to quash the proceedings. Therefore, the ultimate conclusion should be that the Court before which the complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing the complaint may be a circumstance to be taken into consideration in arriving at the final verdict, but that itself is no ground for dismissing the complaint. Moreover, the delay has to be appreciated only after recording the evidence of the parties to the proceedings as to ascertain whether that delay is totally fatal to the prosecution.
34. Before concluding, I must also bear in mind as I have noted earlier that it is purely a case and counter case lodged by the parties to the proceedings. 53 The earlier case has already been committed, pending before the Sessions Court. In such eventuality how the Court should deal with such matters also play a dominant rule. It is a grey area which has been tried to be replenished by judicious pronouncement. To my perception a case and counter case both have to be committed to the same Court i.e. to say, counter case has to be committed to the Court where a case is pending. If it is a Sessions Court, the other case also should be tried by the Sessions Court. A charge in each criminal case shall be framed on the basis of the materials available on records of that particular case. The facts in the counter case cannot be mixed up with the case on hand either for the purpose of framing the charges or for the purpose of appreciating the evidence in either of the case. The solitary practice, when two criminal cases relating to the same incident they are to be tried and disposed of by the same Court by 54 pronouncing the judgment on the same day. Such two different versions of the same incident resulting in two criminal cases or to be dealt with independently. The evidence recorded in one case also should not be relied upon in another case unless that evidence is also brought in another case in accordance with law.
35. Therefore, it goes without saying that the Magistrate cannot look into the sensation or the contents of the charge sheet in another case but, the Magistrate is only governed by the materials produced by the complainant in the counter case. On such basis, if the Magistrate is satisfied that a prima facie case is made out to issue process against the accused, the Magistrate is not debarred from exercising such power. It is also a well profounded principle that at the time of issuance of process nitpicking and meticulous examination word to word of the complaint and the sworn statement is unwarranted.
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36. Overall understanding of the materials and the satisfaction of the Magistrate it play a dominant role to be considered by the Higher Court. The opinion of the Appellate Court or the Revisional Court or the Court which exercises its powers under Section 482 of the Cr.P.C. should not be a substitute to the opinion or the satisfaction of the learned Magistrate. Therefore, I am of the opinion, looking to the above said facts, surrounding circumstances, the Magistrate has dealt in detail with the matter including considering the prima facie evidence available on record and issued process against the accused. Such an order in my opinion should not be disturbed.
37. The Court should also bear in mind as said by the Apex Court in Amit Kapoor Vs. Ramesh Chander and another in (2012) 9 SCC 460 at para 27.13 that:
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"Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie".
(Emphasis supplied)
38. In view of my above observations, this petition is devoid of merits and the same is liable to be dismissed.
Accordingly, this petition is dismissed.
Sd/-
JUDGE Rbv