Karnataka High Court
M Rajesh Palani vs The Station House Officer on 18 August, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE DR.JUSTICE JAWAD RAHIM
WRIT PETITION NOs.31228-231/2013
BETWEEN:
1. M.RAJESH PALANI
S/O.LATE G.P.PALANI
AGED ABOUT 45 YEARS
NO.10, SUYEJ FARM ROAD
KANAKAGIRI, KILLE MOHALLA
MYSORE- 570 001.
2. M.K.VANAJAKSHI
W/O.LATE G.P.PALANI
AGED ABOUT 69 YEARS.
3. NETRAVATHI
W/O.M.RAJESH PALANI
AGED ABOUT 43 YEARS.
PETITIONERS 2 AND 3 ARE
R/AT NO.10, SUYEJ FARM ROAD
KANAKAGIRI, KILLE MOHALLA
VIDYARANYAPURAM
MYSORE - 570 001.
4. BANGARAPPA
S/O.LATE LINGAPPA
R/AT NO.64, SUYEJ FARM ROAD
KANAKAGIRI, KILLE MOHALLA
VIDYARANYAPURAM
MYSORE - 570 001.
...PETITIONERS
(BY SRI D.R.RAVISHANKAR, ADV.)
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AND:
1. THE STATION HOUSE OFFICER
KRISHNARAJA POLICE STATION
MYSORE CITY.
2. S.SIDDARAJU
S/O.LATE SIDDAIAH
AGED ABOUT 65 YEARS.
3. S.RAMESHA
S/O.S.SIDDARAJU
AGED ABOUT 40 YEARS.
BOTH ARE R/AT NO.1739
13TH CROSS, ASHOKA PURAM
MYSORE - 570 001.
...RESPONDENTS
(BY SRI NASRULLA KHAN, SPP FOR R-1
SRI P.NATRAJU, ADV. FOR R-3)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA
WITH A PRAYER TO QUASH THE ORDER OF REFERENCE
MADE BY THE JURISDICTION MAGISTRATE AS PER ANN-G,
DATED 25.4.2013 AND ALSO TO QUASH ANN-J THE
CONSEQUENTIAL REGISTRATION OF THE FIR IN CRIME
NO.101/13, DATED 2.5.2013 BY THE R-1.
THESE PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioners have brought in question under Articles 226 and 227 of the Constitution of India, the proceedings before the learned Additional Metropolitan Magistrate, Bangalore, accepting the complaint 3 submitted by respondents 2 and 3 to prosecute the petitioners for the offences punishable under Sections 420, 423, 426, 463, 468 r/w. Section 34 of IPC.
2. Learned counsel for the petitioners seek admission of this writ petition and to issue writ of certiorari to quash the proceedings and has referred to certain factual and legal issues as in its favour.
3. The contextual facts to which he has referred to would show respondents 2 and 3 through their complaint under Section 200 Cr.P.C approached the jurisdictional Magistrate marked as Annexure 'G' in which they alleged that they had in belief that the power of attorney, authorizing the petitioners was necessary to represent them in a proceeding before the revenue authorities for change of katha and executed a document vide Annexure 'A'. The said document was used as authorization by the petitioners to alienate the properties owned by them. The petitioners misusing the trust reposed by them, sold the properties diminishing their interest thereby, not 4 only causing loss but cheating them. As the acts of the petitioners were fraudulent, mischievous and criminal, it comes within the mischief of offences defined under the Indian Penal Code in the provisions of Sections 420, 423, 426, 463, 468 r/w. Section 34 of IPC. On presentation of the complaint, the learned jurisdictional Magistrate has passed the order on the complaint itself.
4. Learned counsel for the petitioners has initiated this writ action on their behalf to assail the said order on the ground, once the joint complaint is filed, the jurisdictional Magistrate could not have referred the complaint for investigation under Section 156(3) of Cr.P.C in as much as the joint complaint itself was not maintainable; that the statement of facts in the complaint do not make out any case for criminal action as it appears, the grievance of complainant is that the petitioners had taken advantage of the illiteracy and had obtained power of attorney for the purpose of making out pahanies in 5 respect of land in Sy.No.124/1 and also 123. By this, he would submit there is no material made available either in the form of material propositions or otherwise that the overt acts of the petitioners come within the mischief of any of the provisions referred to above.
5. Learned counsel submits without examining the nature of allegations which revealed only civil dispute, the Magistrate could not have referred it for enquiry by the police invoking power under Section 156(3) of Cr.P.C. Describing the order of Magistrate as illegal and not as per law, he submits it has caused severe infringement to the rights of the petitioners and needs to be quashed.
6. Lastly, he would submit that for any action in criminal law, the statement of facts must make out a prima facie case indicating criminality in the conduct against whom an action is sought.
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7. In the instant case, the averment in the complaint do not make out any case and therefore, the action itself is bad in law. Learned counsel therefore seeks quashing of the entire proceedings before the Magistrate and seeks citational support to his contentions relying on the following decisions:
i) 1998 SCC (Cri) 1400 in the case of Pepsi Foods Ltd., vs. Special Judicial Magistrate;
ii) (2009) 3 SCC (Cri) 1297 in the case of Chunduru Siva Ram Krishna vs. Peddi Ravindra Babu
iii) 2008 AIR SCW 3262 in the case of Suneet Gupta vs. Anil Triloknath Sharma
8. The petitioners have brought into party array, the S.H.O of Krishnaraja Police Station as first respondent and S.Siddaraju and S.Ramesha as respondents 2 and 3.
9. Sri Nasrulla Khan, learned SPP has taken notice for respondent No.1 and thus, I have taken this matter for preliminary hearing.
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10. The petitioners have combined the relief under Articles 226 & 227 of the Constitution of India and under Section 482 of Cr.P.C but the petitioners have classified it as writ petition and listed.
11. Though the learned counsel would try to refer to the factual matrix on the basis of which, prosecution is sought by the respondents, it could be seen, the substance of allegation against the petitioners is that they have misused the trust of respondents 2 and 3 and misused the general power of attorney obtained from them for sale of property though it was issued for a limited purpose after obtaining pahanies. The execution of power of attorney vide Annexure 'A' is not in dispute to the action sought by the respondents. They are illiterates and have signed the document in favour of the petitioners in full confidence and belief that the pahanies would be changed and there was no authorization to sell the property in question. The sale of property is described as fraudulent act as a result of 8 mens-rea of cheating and therefore, they sought for action. On receipt of private complaint under Section 200 of Cr.P.C., the Magistrate had two options, (i) to take cognizance and (ii) to refer the sworn statement of the complainant or any one of the complainants for investigation and then decide either to issue process or call upon the petitioners to substantiate.
12. The conspectus of the provisions of Sections 200 to 204 of Cr.P.C therefore is necessary. The scheme enumerated in these provisions leaves no scope for doubt that at the time of taking cognizance, when a private complaint is presented in writing or when the complainant appears and requests the Court through his oral statement, the Magistrate is required, in law, under Section 200 Cr.P.C to record the statement of the complainant if it is an oral complaint. If it is in writing, then he has to read the statement for the purpose of forming "an opinion". The word "opinion" spells out, the Magistrate is not required to read the propositions for a substantive satisfaction 9 and not objective assessment. No doubt, certain case laws are cited at the bar frequently to show that it is only an empty formality which requires a judicial approach.
13. We cannot ignore the statutory benefit conferred on the Magistrate by Section 156(3) of Cr.P.C to direct investigation by the S.H.O of jurisdictional Magistrate without having embark on even reading the statement on facts which constitute the complaint. By that, the Magistrate does not take any cognizance he referred for investigation. The present case is that the Magistrate had ordered the complaint to be referred to the jurisdictional Magistrate for investigation under Section 156(3) of Cr.P.C and undoubtedly, soliciting a report which the S.H.O will have to submit. Once, the report is submitted, then the Magistrate will then examine the report as envisaged under Section 203 of Cr.P.C.
14. We must notice the intended purpose of Section 203 of Cr.P.C. Section 203 of Cr.P.C requires 10 the Magistrate to examine the statement given by the complainant and the report of the police, if any. That itself would show, the Magistrate may, after securing the report from the police, examine again the complaint and after examining both, dismiss the complaint, if no prima facie case is made out. Therefore, the stage created by Section 203 of Cr.P.C is a preliminary stage which does not indicate that by mere ordering enquiry by the S.H.O., the Magistrate has taken cognizance or intends to proceed against the accused. The report given under Section 156(3) Cr.P.C has to be considered by the Magistrate under Section 203 of Cr.P.C. If on consideration of the report, the Magistrate forms an opinion that no case is made out, the complaint itself would be dismissed and if not, the Magistrate has to resort to Section 204 of Cr.P.C and order summons to the accused. In either case, the Magistrate's discretion to see the report and then examine the complaint is well defined by these provisions.
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15. The case laws cited by the learned counsel refer to an action where, in the case of Suneet Gupta vs. Anil Triloknath Sharma, it must be noticed, the order of High Court quashing the proceedings was affirmed by the Supreme Court, taking note of the litigious conduct of the complainant, who had sought to convert a civil litigation into criminal action. The facts, based on which action commenced would show that there are monitory transactions between the parties and accounting was questionable. While, the dispute was pending and it appears, the parties had not been able to reach the Agreement, the complainant change the course of action and filed a complaint who was before the police officer and the police officer enthusiastically initiated the prosecution. In that regard, the Supreme Court observed thus:
"The record further reveals as stated by respondent Nos.1, 2 and 3 in the counter affidavit, that it was contended by the accused that the matter was civil in nature and based on commercial transactions and there was a dispute 12 between the parties and as such there was no element of mens-rea. It was also submitted by the accused that the complainant with an ulterior motive and mala fide intention, used pressure tactics and was harassing them in connivance with local police and filed a complaint on May 2, 2003. The police authorities were convinced about the nature of dispute and after seeking legal opinion from District Attorney closed the proceedings. Subsequently, however, the complainant after making cosmetic changes in the earlier complaint and using undue influence filed FIR No.266/2003 on September 16, 2003 for commission of offences punishable under Sections 468, 406 r/w. 120-B of IPC. According to the accused, it was motivated and the police authorities obliged the complainant by helping him."
16. From such facts, it is evident that the first action initiated by the complainant to prosecute the accused to the Supreme Court was exercised in futility as the Investigating Officer had closed the matter describing it as civil in nature. Subsequently, as the 13 Supreme Court observed, it makes some cosmetic changes in the earlier complaint and was in connivance with police officers and initiated first action from which it was manifestly evidenced, it was misuse of document. The High Court quashed it and the Supreme Court confirmed it.
17. In the instant case, no such acts are shown. Submitting to the Court that they have been induced and fraudulently a document has been misused. They admit executing power of attorney to contend, intensive purpose was only to authorize the petitioners to get pahanies changed, but they have misused it. Therefore, this allegation requires a thorough investigation. Undoubtedly, the respondents could have submitted a report directly to S.H.O but would have been under law, obliged to the Registrar and complained and enquired into as required under Section 154 of Cr.P.C. The respondents did not chose that course and have approached the Magistrate. The Magistrate has thus acted in exercising his discretion 14 invoking Section 153 of Cr.P.C and referred to investigation. The stage is too preliminary. At this stage, the Magistrate is not required to give a finding on fact or form opinion of existence or non existence of the prima facie case.
18. Be that as it may. Since, the Magistrate by cryptic order directed investigation under Section 153 of Cr.P.C., all that could be done is to refer the matter back to the Magistrate who has examined the nature of allegation in the complaint and pragmatically examine the issues, take a decision as to whether prima facie case is made out for reference to the police for investigation. That is the maximum that could be done.
19. I do not find any illegality either in the submission of complaint by the respondents 2 and 3 or the Magistrate, accepting this report. Therefore, there is no question of quashing the proceedings before the Magistrate. Therefore, all that is required is to be done is set aside the order dated 25.4.2013, by 15 which the Magistrate has referred the complaint to the police to take the complaint on file and then pass a reasoned order as required under Section 200 of Cr.P.C or refer the matter under Section 156(3) of Cr.P.C. afresh. With these observations, the petition is disposed of.
Sd/-
JUDGE nas.