Karnataka High Court
Mrs. Doris K. Raj @ Doris D' Souza And Anr. vs A.T. Francis on 5 December, 2003
Equivalent citations: ILR2004KAR853
ORDER M.F. Saldanha, J.
1. This case is very different from the general character of petitions that are filed for quashing of criminal proceedings before the lower Courts in so far as it deals with an issue of very crucial significance. The petitioners are husband and wife and as will be presently illustrated, they are persons of status who have come forward to undertake the cleansing of public life and improvement of the general quality of life. Inevitably, they have had to deal with powerful anti-social elements and underworld forces and the familiar tactic has been used against them by way of threats and intimidation in order to beat them down. The Courts have come across instances where human beings of substance and of courage fight on, these attacks and pressures notwithstanding, and the basic issue, and one of very very deep seated significance that has been arising in this case is whether the laws and the institutions that administer them are required to support, assist and redress a situation wherein litigation and Court cases are used as a weapon against them. It is a cruel joke when statements are made that the finest form of harassment and torture is to institute a Court proceeding against parties and drag them through the torture and trauma of an unjust litigation, not to mention the heavy expenditure that it entails even to contend with such a litigation. Are the Courts powerless when a frivolous, vexatious, unjustified, malafide and motivated litigation is instituted and is it the scheme and requirement of the law that the victim in these instances has to go through the entire turmoil and turbulence for years together and be at the receiving end until that litigation finally concludes or is it the intention of the law that the powers vested in the High Court under Section 482 Cr.P.C. have specifically been promulgated for purposes of culling and quashing this class of litigation at its very inception; are really the basic issues involved in this very heavily contested litigation. It is a point of immense importance because the Courts have always adopted the principle that the High Court will be extremely slow and reluctant in the matter of quashing a criminal prosecution, the familiar argument being that the complainant must have an adequate opportunity of establishing the case at the time of the trial, the obvious difficulty that arises where the Courts have for good reason refused to go into any assessment with regard to the falsity or otherwise of the allegations at a pre-trial stage and the general principle that where the complainant has been careful enough to make out a prima facie case that interference would be improper or situations which create almost a total bar to the aggrieved party obtaining any redressal at a pre-trial stage. The end result is that these cases linger and fester in the trial Courts and the time factor alone acts as an unbearable pressure on the accused. The justice dispensation machinery is choked up with these complaints and one is left with very telling and eye opening statistics which would perhaps impel the High Court to do some drastic rethinking as far as the approach in this field of law is concerned.
2. Private complaints are resorted to with very high frequency and cover everything from defamation to petty assaults and commercial transactions that are given the colour and complexion of criminal offences in order to coerce a settlement. The only precaution which the complainant has to take is to ensure that the drafting is letter perfect, that overtacts of culpability are attributed, that the facts are so arranged that they come within the ingredients of the charging section and that the complaint satisfies the requirement of a "prima facie case". The learned Magistrate is duty bound to issue process, applications for discharge are rejected on the ground that they are premature if the evidence is required to be lead and applications for quashing have also failed on the ground that a prima facie case is made out. Between 1995 and 2000 the percentage of acquittals in private complaints in the State of Karnataka was as high as 94.6 percent. Between the years 2000 and 2003 this figure rose to 96.5 percent. Do these statistics tell us that a very large percentage of private complaints that are instituted required culling? The Courts themselves are heavily conscious of the fact that unjustified overloading of the system is contributing to chaos, which the Chief Justices and legal luminaries have termed as the near collapse of the criminal justice system and does the remedy therefore lie in taking necessary steps to ensure the Courts make way for the genuine cases by eliminating the underserving ones and taking deterrent action for purposes of ensuring that their number does not increase. These basically are the wider considerations that have been thrown up for decision in this petition.
3. Before dealing with the issues that are in dispute, it would be of some relevance to deal with the status of the parties before the Court. It would be appropriate to reproduce paragraphs 3 and 4 of the petition which summarise the position:-
"Para.3:- The petitioners are husband and wife. The petitioner No. 1 was the 1st founder manager of Canfin Homes, a subsidiary of M/s.Canara Bank. The petitioner No. 2 an Engineer passed his engineering in first class, travelled widely was trained in Europe and held several sensitive and important positions. He worked in research and development department in the Ministry of Defence and M/s. BHEL. The petitioners took voluntary retirement. After their retirement the petitioners have associated themselves with public service. The petitioners are issueless, they are income tax assesses and own properties worth crores. The petitioners are members of Federation of Karnataka Chambers of Commerce and Industries. They have written several articles which were published and were appreciated. The petitioners enjoy absolute moral, social and professional reputation and are held in high esteem by friends, relatives, authorities and the general public as they have acknowledged honesty, integrity and commitment of the petitioners."
"Para 4:-The petitioners submit that during 1995 the Administrator of Bangalore City Corporation, Dr. A. Ravindra who enjoyed the reputation of being an upright honest and committed officer discovered the efficacy of involving non-governmental agencies in providing basic civic amenities, like power water, proper roads, lights, transport and other related services. Dr. A. Ravindra conceived an innovative concept which resulted in the birth of "Swabhimana" an organisation consisting of genuine, honest, concerned prominent citizens , NGO's , corporate bodies, besides respective departmental representatives from the government agencies for the effective functioning of the department so as to make the department not only vibrant but also responsive to the public requirement. Thus came into existence "BEST" - Bangalore East Swabhimana Trust. The petitioner No. 1 was appointed as its Chairperson who had an excellent track record in the Banking Sector. Petitioner No. 2 is its Treasurer who is known for effective and creative thinking besides concern for the less fortunate."
4. Equally relevant would be a brief summary of the respondent's activities which are set out in paragraph 5 of the petition:-
"Pars 5- The respondent is a notorious, lawless, organized, gangster running several wine shops, bars and restaurants, money lending business and other activities of the like nature. The respondent had occupied several shops in the corporation market, located on Lazer Road, Frazer Town, Bangalore. In shop No. 10, the respondent started a wine shop under the name and style of "Rosary Wines" and in shop No. 22 which is behind shop No. 10 the respondent started vending loose Liquor. Thus started a make shift illegal bar on Permanent basis. The Bangalore City Corporation constructed this market acceding to the long standing demand of the residents. The respondent opened the wine shop in shop No. 10, which was licenced for running a grocery business to one Smt. Carolene. The opening of the wine shop is absolutely illegal, besides a gross violation of Rule 5 of the Karnataka Excise Act as the wine shop is situated just few yards away from Lord Ganesha Temple, Goddess Mahakali Temple, K.E.B. (now K.P.T.C.L.) office, petitioners' residence etc. It is relevant to mention that abutting this Corporation market, the houses of the residents are located."
5. I need to record at this stage that the petitioners were husband and wife who have annexed to the petition voluminous documentary evidence in support of everything that they have contended. It is of some relevance for the Court to take cognizance of the fact that though it is customary in this High Court, even in the smallest of situations such as applications for condonation of delay etc. to file replies and objections that the respondent though represented by not one but two learned Advocates and even though this proceeding was pending before the Court for a long time after it was admitted on 13.10.1999 and the notice, was served on the respondent, that no reply of any type is on record. At the commencement of the hearing, I brought this fact to the notice of the respondent's learned Advocate that everything pointed by the petitioners including their sworn averments in the petition and the documents produced by them in support thereof is uncontroverted. The only reply was that the respondent has confined his submissions to points of law namely that the petition is premature and that this is a case where the complainant will have to be given an opportunity to lead evidence before the trial Court and that therefore the complainant does not desire to deal with the facts. Though this is not a civil proceeding, to my mind the averments made and all the material produced on behalf of the petitioners has gone uncontroverted. I have examined every page of the annexures and to my mind the reason why they have not been disputed is because they are all beyond dispute. This material unequivocally establishes that the petitioners are in the category of respected senior citizens, that they have been devoted to consistently addressing themselves to public causes that concern the community, that they have been fighting for the welfare of the citizens in the area and that they have also been waging a relentless battle against criminal and anti social elements and that this has subjected them to the wrath of the latter. In the course of the hearing, the petitioners' learned Advocate alluded to the series of complaints on record with the local police station outlining intimidation and threats that the petitioners have been subjected to over a period of time even to the extent of huge loads of glass pieces being regularly flung into the compound of the house occupied by the petitioners, repeated attempts to poison the petitioners Labrador dog belonging to them which ultimately succeeded and caused not only great distress to the petitioners but serious insecurity, repeated threats to disfigure them with the use of acid which is a familiar revenge tactic in the city of Bangalore and in all of this, the central figure is none other than the respondent. The reason for this is because he had been running an illegal liquor business in the local municipal market which resulted in very serious problems to the entire area because the place was swarming with drunkards and anti social elements, not to mention prostitution that was a byproduct. It was unsafe and unpleasant for the residents of the area and as was to be expected, the respondent was flushed with money and therefore, complaints to the authorities would not yield any redressal. The very sad observation that I am required to make after going through the various proceedings and orders produced before me is that the respondent was extremely well served by a team of talented lawyers who not only got him out of every problem but interestingly enough, secured for him repeated orders that turned the tables on the authorities. When action was taken to get his liquor licence cancelled on a variety of valid grounds, he succeeded in beating back the litigation and getting his licence restored and extended through Court orders. When pursuant to citizens' complaints action was taken to close and seal the premises in the municipal market because the shops had been allotted for vegetable trade and had been illegally converted into liquor vending businesses, the respondent still succeeded in getting orders for the premises to be opened forthwith, possession restored and action taken against the officers who had acted according to law. On the other hand, there is also a lot of evidence in these proceedings of the fact that most of the authorities were acting in collusion with the respondent for which the reasons are not difficult to understand. Normally, I would not have referred to all this material except that it becomes relevant because, as is indicated earlier it is uncontroverted and secondly because it is very necessary for purposes of assessing the background and the circumstances in which the criminal complaint in question has been filed and whether it in an expression of a genuine valid complaint or whether it is an obvious clear cut fabrication instituted for purposes of hitting back at those who were trying to uphold propriety and the rule of law.
6. A word about the fact that pursuant to the steps taken by the citizens' organisations headed by the petitioners, irrespective of the fact that the respondent was by and large able to curtail the steps and continue with his activity in and around the municipal market that many of the prosecutions and proceedings did go against him and ultimately he decided to move his activities to some other part of the city. The copies of the various proceedings and the orders are almost a basket load and one thing unequivocally emerges namely that the petitioners did not give up, that they and the other citizens persisted and despite the many reverses, that they were ultimately successful in their cleanup operation. Apart from all else that had been done, it is therefore established that at the point of time when the criminal complaint was filed with the background of the number of litigations that the respondent was hell bent on hitting back against the petitioners and taking his revenge on them.
7. Digressing here, it is necessary for me to point out that this petition along with several other petitions filed under Section 482 Cr.P.C. wherein the proceedings before the trial Court had been stayed came to be listed before me as a stop gap assignment during such times when the Division Bench was not sitting. These petitions were argued and in view of the limited time available, I made a departure from my normal practice of dictating every judgment in the Court-room and that too at the request of the learned Advocates in order to conserve judicial time and took up the petitions for hearing one after the other with a direction to the office that the records be sent to the Chambers for dictation of the orders. That explains how there is a time lag between the completion of the arguments and this order which is more adequately explained from the order dated 13.6.03 which is reproduced below and it is self- explanatory: -
"The learned Advocate who represents the petitioners filed a memo dated 21.3.2003 pointing out that the arguments had been completed by both the sides quite some time back and requesting that the orders be pronounced on this petition. This came as a complete surprise to me because as a matter of principle, I do not reserve judgments and all of them are dictated in the court room immediately after the arguments are concluded. Not only are the facts and the arguments fresh in everybody's mind but more importantly, if at all any small discrepancy occurs such as the facts, dates etc. the learned Advocates are present and these are pointed out and rectified on the spots. The Court Officer informed me that due to the absence of my colleague on the Division Bench at different times as a stop-gap, some criminal petitions had been listed before me singly that the arguments had been heard and because these were short, half day or one day assignments, in order to conserve time that she orders used to be reserved, and the entire bunch of records were sent to the chambers. I did recall that at the special request of the lawyers that more proceedings could be disposed off if the arguments were heard and the judgments dictated thereafter in chambers that as a special case I had done so at that time, but I also recall having disposed off all those files. The Court Officer was instructed to check the records and he informed me that this petition does not appear to have been disposed off. The Office was immediately directed to locate the records and the initial indication was that they appear to have been misplaced. I then directed the Registrar (Judicial) to ensure that a thorough search is made and it is only after the summer vacation that the entire file appeared. While admittedly there is nothing on record to indicate anything untoward, I need to add that it is equally familiar practice, an unfair, obnoxious and unpardonable one, which does occur from time to time in the courts, for the records to be tampered with or for them to disappear. Our Division Bench in the course of the last two years saw this happening on atleast 4 occasions and the liability could never be fixed and on an another occasion, a lawyer had gone to the extent of fabricating and signing a Judgment of the High Court, getting it certified and sealed and handing it over to his clients. One sometimes ask the question as to at whose instance these things happen because it is usually the party who wants to avoid an adverse verdict and is equally desirous of preventing the opposite party from getting justice who contrives at these malpractices. Mercifully, because I had warned the staff of the consequences, the records did appear, they are in tact right down to the elaborate notes that were made by me.
I spent considerable time re-reading the entire records for purposes of refreshing my memory, went through the detailed notes of arguments and revised the entire case law including the decisions relied on. My notes indicated that the petition had been argued on several dates of hearing and that for quite some time during the arguments the respondents lawyer was not present though his junior advocate followed the proceedings and took down the notes. The petitioners learned advocate produced several files, documents and records before me in the course of his arguments and the other side was confronted with all of these for purposes of affording them an opportunity of dealing with that material. After the arguments were finally concluded, these records along with a few other petitions which had been similarly heard and in which the orders were reserved were directed to be sent to the chambers for purposes of the dictation. All of them were disposed off in good time but it so transpires that these particular records made their way back to the office and not to the chambers which is how the error occurred. It is a little difficult to accept that this was a mistake particularly in the background of this case. However, since considerable time had elapsed in between I consider it only fair to relist the petition for further hearing which has been done today in order to afford the learned advocates an opportunity of advancing any further submissions which they wanted to.
I have also brought it to the notice of the learned Advocates that after a total review of the entire record this Court is prima facie of the view that this is a case in which heavy compensatory costs will have to be awarded and I have heard the learned Counsel with regard to this aspect of the case. Now that the records have been traced and produced before me , the judgment will be dictated and pronounced as soon as the same is ready."
8. It is also relevant to record here that there is on record one more order dated 1.8.03 which is reproduced below and which will indicate that as mentioned by me herein below, that this petition kept appearing and disappearing and furthermore, even when it was listed that the respondents learned Advocate was almost always absent. This is precisely what transpired on 8.8.03. The Orders dated 1.8.03 and 8.8,03 are reproduced as follows-
"Order dt. 1.8.03:-
Both the learned Counsel are present. This is an old petition which was reserved for orders at the time when I was sitting singly because the Division Bench was not functioning. It ought to have been disposed of a very long time back except for the reason that the office had misplaced the papers and that the same could only be traced after a memo was filed and a considerably lengthy search was undertaken. Thereafter, after re-reading the entire matter, before commencing the dictation of the order I thought it only fair to relist the matter in case the learned Advocates desire to submit anything more or anything further. Unfortunately, on the last two dates of hearing the respondent's learned Advocate was not present but this is understable because the case was listed on Friday along with the C.R.Ps and there is every likelihood that he might have overlooked the matter. In order to be fair to the learned Advocate, I have asked the office to relist the petition today because the petitioner's learned Advocate had made certain submissions on the last two dates of hearing. I have heard Mr. Belliappa today. He points out that he is taken by surprise as far as one aspect is concerned namely the question put by the Court ' as to whether this is a case in which the award of compensation would be justified against the respondent if the Court comes to the conclusion that the filing of the criminal complaint cannot be defended. He has requested for a week's time in order to make his submissions on the point of law. To be relisted on 6.8.03 for further hearing at 2.30 P.M."
ORDER DATED 8.8.03 :-
"NOTE TO THE REGISTRAR - JUDICIAL The petitioners' learned Advocate points out that they were ready to make their submissions as this is an old part-heard matter and there is a clear order that it should be listed for further hearing today. The case is not shown in the cause- list and I am not prepared to accept that this is a mistake. The Registrar - Judicial to file a report explaining why this has happened and to also give the names of the persons who are responsible for this. The Registrar - Judicial shall also see that this case is listed for further hearing on 22.8.2003 at 2.30 P.M. and it would be necessary to warn the office that disciplinary action will be taken against anybody who is responsible for either not listing the case or ensuring that the case papers disappear.
Finally, on 22.8.03 parties and their learned Advocates were present and the respondents learned Advocate was further heard. Since I was on Division Bench assignment, Orders were reserved after the arguments were concluded and when the papers were called for in order to dictate the judgment I was informed by the office that by mistake the records have got mixed up with the other 482 petitions and that the same will be produced as soon as they are traced out. The principal difficulty came up because there was a total change of judicial officers in the High Court twice during these months and finally, it was only in the last week of November that the records emerged. Having regard to the potentiality of these records to vanish, they were retained in safe custody in the Chambers till the dictation was completed. This is a rather disturbing sequence of events. The petitioners have come to the High Court for a relief and I do not visualise their having any hand in delaying the disposal of the petition but on the contrary, the respondent who is the original complainant and who has been present in Court on many dates of hearing could obviously have sensed that the trend was not very favourable and that would explain all that has happened. It is true that beyond this, there is nothing else that is concrete on record.
9. This petition, as indicated earlier seeks the quashing of a private complaint dated 6.1.1999 filed against the petitioners who are husband and wife wherein they are alleged to have committed offences punishable under Sections 447, 323 and 506B IPC. What is relevant is that even though the complaint is dated 6.1.1999, the alleged incident is supposed to have taken place at 10 AM. On 11.12.1998 when the petitioners are supposed to have entered the shop and intimidated and assaulted the complainant and his friend Dominic. The learned Trial Magistrate issued process against the petitioners and they thereafter filed an application for discharge under Section 204 Cr.P.C. which application was rejected by the Trial Court on 20.8.1999. It is thereafter that the present petition under Section 482 Cr.P.C. has been filed before this Court on 11.10.1999.
10. I am conscious of the fact that the exercise of inherent powers by the High Court for purposes of quashing a case at the pre-trial stage is a power that is exercised very sparingly and the law is well settled that since the trial is yet to commence that the Court would not evaluate the evidence. Normally, a complaint could be quashed if it is established that the charge is groundless or in other words, if the complaint taken at face value does not make out an offence. The respondent's learned Counsel very strongly submitted that it is not open to this Court to evaluate the record produced before this Court and to record any conclusion to the effect that it is true or false. That position is correct in law. Secondly, what he also submitted very strongly is that the petitioners have produced documentary evidence namely, the minutes of a meeting held on 11.12.1998 indicating that between 9 A.M. and 10.30 A.M. they were present at that important meeting before the Karnataka Electricity Board along with several others and that consequently, they could never have been present at the scene of offence. Learned Counsel submitted that effectively the petitioners are pleading a defence of alibi and he submitted that this defence again would have to be put forward at the trial, that the complainant would have the right to test this material and if the petitioners succeeded in establishing the alibi, that they would be acquitted but that at the present point of time where the material is yet to be tested, the Court cannot rely on it and record a finding against the complainant. Though there is considerable substance in this argument, I need to record that it is not absolutely 100 percent correct in law because the petitioners' learned Counsel brings it to my notice that this is an official record of the meeting held with a public authority, that it is on par with a public document, that the respondent is not in a position to even allege that the Karnataka Electricity Board would fabricate its records to assist the petitioner and that consequently, this Court would be justified in relying on it. To my mind, the record of the meeting which does indicate that the petitioners were present at that place would make it prima facie impossible for them to have been at the alleged scene of offence. However, no conclusive finding can be recorded with regard to this aspect of the case beyond holding that this document is of limited persuasive value.
11. The background to the filing of the complaint is summarised by the petitioners in paragraphs 4 to 9 which are reproduced below:-
"Paragraph 4:- The petitioners submit that during 1995 the Administrator of Bangalore City Corporation, Dr. A. Ravindra who enjoyed the reputation of being an upright honest and committed officer discovered the efficacy of involving nongovernmental agencies in providing basic civic amenities, like power, water, proper roads, lights, transport and other related services. Dr. A. Ravindra conceived an innovative concept which resulted in the birth of Swabhimana" an organisation consisting of genuine, honest, concerned prominent citizens NGO's, corporate bodies, besides respective departmental representatives from the government agencies for the effective functioning of the department so as to make the department not only vibrant but also responsive to the public requirement. Thus came into existence "BEST" - Bangalore East Swabhimana Trust. The petitioner No. 1 was appointed as a Chairperson who had an excellent track record in the Banking sector. Petitioner No. 2 is its Treasurer, who is known for effective and creative thinking besides concern for the less fortunate."
"Paragraph 5:- The respondent is a notorious, lawless, organized, gangster running several wine shops, bars and restaurants, money lending business and other activities of the like nature. The respondent had occupied several shops in the corporation market, located on Lazer Road, Frazer Town, Bangalore. In shop No. 10, the respondent started a wine shop under the name and style of "Rosary Wines" and in shop No. 22 which is behind shop No 10 the respondent started vending loose liquor. Thus started a make shift illegal bar on permanent basis. The Bangalore City Corporation constructed the market acceding to the long standing demand of the residents. The respondent opened the wire shop in shop No. 10, which was licenced for . running a grocery business to one Smt. Carolene. The opening of the wine shop is absolutely illegal, besides a gross violation of Rule 5 of the Karnataka Excise Act as the wine shop is situated just few yards away from Lord Ganesha Temple. Goddess Mahakali Temple, K.E.B. (now K.P.T.C.L.) office, petitioners' residence etc. It is relevant to mention that abutting this Corporation market the houses of the residents are located."
"Paragraph 6:- The residents of Lazer Road, Frazer Town, Cooke Town and Richard's Town have registered strong protests against opening of wine shop by the respondent. Ignoring the protest, sentiments, the respondent continued to carry on the liquor business in utter disregard to sufferings, harassment, embarrassment and other nuisance caused by the drunkards to the girls and women of the area. In this regard, several representations and complaints were already filed by the Joint Action Front of the residents."
"Paragraph 7:- "BEST" under the able leadership of the petitioners was functioning most effectively and several local non governmental organisations have become members of "SWABHIMANA" and the initiative has now assumed the character of a movement. In the process it has done wonders to the area. The petitioners produce herewith the aims and objectives of the "SWABHIMANA/BEST" and also the newsletters. They are produced herewith and marked as Annexure - A & A1 to A5. The petitioners also produce herewith some of the achievements of their organization which are appreciated and acknowledged not only by the public but also by the News Media circulated to make the movement effective. The News items are produced herewith and marked as Annexure A6 to A18. Petitioners or the members of the organisation do not belong to any political party."
"Paragraph 8:- The petitioners have submitted innumerable representations, letters, complaints to various government agencies. They are produced herewith and marked as Annexure - B1 to B14 in addition to such letters representations and complaints, the petitioners along with the other members of the organization attend several meetings with the heads and officers of various departments. The petitioners produce herewith the records of such proceedings. The same are marked as Annexure -- C.C1 to C26. The petitioners submit that with the creation and the existence of "BEST" the long pending cause i.e. nuisance created by a, respondents wine shop was taken up by "BEST". Several letters representations and complaints were given by the residents as well as the members of "BEST" to the Department of Excise, Bangalore City Corporation and the Police. In all these letters, complaints and representations it was mentioned how the respondent is violating rules and regulations and indulging in illegal activities. The petitioners produce herewith some of the letters and representations marked as Annexure - D.D1 to D.11. Consequent to the complaint letters the Police and Excise Department have taken action and registered cases against the respondent in most of the cases the respondent or his men pleaded guilty and paid fine before the court. The petitioners produce herewith the copies of First Information Report filed by the residents and the members of "BEST". The same are marked as Annexure E.EI to E.5."
"Paragraph 9:- The respondent attempted to browbeat and threatened the petitioners and the other members in a bid to silence them. Consequently on 21.10.1998, 3.12.1998, 4.12.1998 and 6.12.1998 the complaints were filed before the police. The copies of the complaints with acknowledgment are produced herewith as Annexure - F. F1 to F4 respectively. It is relevant to mention that the respondent even poisened the Labrador dog of the petitioners."
Certain other relevant facts which are set out in paragraphs 10 to 15 of the petition are also reproduced below:-
"Paragraph 10:- The petitioners submit that the respondent filed a Private Complaint on 6.1.1999 against the petitioners for the offence punishable under Section 447, 323 and 506B of Indian Penal Code. The copy of the said complaint is produced herewith and marked as Annexure-G. The sworn statements dated 6.1.1999 of the respondent and his witness are produced herewith and marked as Annexure-G1 & G2 respectively. Annexure-H is the order issuing process against petitioners dated 14.1.1999. The petitioners produce herewith the order on the application filed by the petitioners under Section 204 of the Code of Criminal Procedure, along with 23 documents, the learned Magistrate rejected the application by his order dated 20.8.1999 the same is marked as Annexure-J."
"Paragraph 11:- The petitioners submit that the respondent had filed a suit against Petitioner No. 1 in O.S. No. 1986/1999 on 10.3.1999 seeking an order of Exparte temporary injunction restraining the petitioner No. 1 from interfering with the respondent's liquor trade. The court indeed granted the injunction. The copy of the plaint is produced herewith and marked Annexure-K. Annexure-K1 is the order dismissing the suit on 16.7.1999. The reason for the court to dismiss the suit as infructuous was act of respondent who sought the transfer of his liquor shop from Lazer Road to Jaibharathinagar, the act of the respondent was in response to revelation of his fraud by the petitioners and the out come of the order of closure of the liquor shop in Appeal No. ECS/11/App/1999. The said order is produced herewith and marked as Annexure-1. The order of closure was passed on 17.6.1999. The petitioners submit that immediately thereafter fearing permanent cancellation of liquor licence and realising the dire consequences in case of an impartial enquiry being held, the respondent sought for the transfer of his liquor trade to Jai Bharathi Nagar as stated above. By its order dated 2.7.1999 the Excise Department transferred the liquor shop licence to Jai Bharathi Nagar with immediate effect, the copy of the said order is produced herewith and marked as Annexure-L1 and L2 is the licence accorded as per the request of the respondent."
"Paragraph 12:- The petitioners submit that on 3.7.1998, Bangalore City Corporation ordered the closure of the shop. However, the respondent preferred a Writ Petition in W.P. No. 27079/1998. The order passed in the said Writ Petition is produced herewith and marked as Annexure-N. The respondent filed a original suit against Bangalore City Corporation in O.S. No. 2545-1999 on 30.3.1999 making wild allegation against the petitioners without making petitioner No. 1 as the party. The copy of the said plaint is produced herewith and marked as Annexure-N. In the said suit the respondent has taken an order of status quo from being evicted from the shop. The petitioners' organisation has filed an application for impleading and the same is pending for consideration. The respondent filed a W.P. No. 15116/1999 against the Excise Department against the interim order of Excise Commissioner in the said writ proceedings petitioners organisation got impleaded. Consequently the Writ Petition of the respondent was dismissed on 1.6.1999. The copy of the order is produced herewith and marked as Annexure-P. The petitioners produce herewith the copy of the sketch of the area the same is marked as Annexure-Q. The portion marked in Red shows the location of the liquor shop. The petitioners produce herewith the copy of the Written Statement filed by the Bangalore City Corporation in O.S.2545/1999 in which it is clearly stated that the residents of the area have opposed the opening of the wine shop and that there were innumerable complaints about the activities of the wine shop. The said Written Statement is produced herewith and marked as Annexure-R'. Annexure-S is the affidavit.
"Paragraph 13:- The petitioners submit that on 11.12.1998 between 9 a.m. to 10.30 a.m. the petitioners and members were attending an important Scheduled official meeting with the authorities of K.E.B. The proceedings of the said meeting is produced herewith and marked as Annexure-T. It is alleged in P.C.R. No. 56/1999 that on 11.12.1998 at 10.00 A.M. the petitioners have trespassed into the condiment shop of the respondent and assaulted the respondent and his friend Dominic with Coca-Cola bottle and Chocolate bottle. The reason for the assault as alleged by the respondent is that prior to 11.12.1998 the petitioner No. 1 is said to have demanded Rs. 10,000/- as loan, since the respondent refused the same, the petitioners committed the alleged act of trespass, assault and threatening to murder the respondent."
"Paragraph 14:- The respondent has suppressed all material facts before the court and did not produce the wound certificate of the alleged assault and filed the complaint after the delay of 25 days making allegation which on the face of it is false and improbable. The learned Magistrate issued the process after recording the sworn statement ignoring the material contradiction between the sworn statement and complaint besides highly improbable facts and circumstances. Further the learned Magistrate rejected the application of the petitioner seeking for discharge ignoring the decision reported in 1992 S.C.C. (Crl) 82, and also 23 documents. The learned Magistrate dismissed the application of the petitioners without even considering the documents produced by the petitioner. In fact the documents produced by petitioners has direct bearing on the merits of the case if they were to be appreciated in the proper perspective the falsity of respondent's case would have been exposed."
"Paragraph 15:- The petitioner submit that there are number of cases filed against the respondent right from the inception of the wine shop and the following are a few cases which are within the knowledge of the petitioners -
i. C.C. No. 24003/1998 Under Section 160 I.P.C.
ii. Cr. No. 197/1998 dated 7.5.1996 Under Section 36 of Karnataka Excise Act.
iii. Cr. No. 225/1998 dated 22.5.1998 Under Section 36 of Karnataka Excise Act.
iv. Cr. No. 115/1999 dated 4.3.1999 for the offence Under Section 506 r/w. Section 34 of Indian Penal Code."
v. Cr. No. 445/1998 dated 2.10.1998 Under Section 34 Karnataka Excise Act.
vi. Cr. No. 279/97 Under Section 448, 323 IPC - C.C. No. 25187/97 vii. FRT Ex Insp/FIR 75/98 - 99 dt. 8.6.1999 Thus, it is clear from the above that the respondent is a lawless and notorious person."
12. What emerges from a scrutiny of this material is that the petitioners and other residents had objected to the running of a wine store in the municipal market not so much because the whole operation was illegal in so far as such a business could not have been located in the premises let out for a vegetable store in the municipal market but more importantly because as happens in the State of Karnataka the wine stores do a clandestine retail business of supplying liquor to their customers in and around the premises, the result being that relatively large number of unpleasant characters hang around the place, the residents found that certain other obnoxious activities such as intoxicated persons misbehaving in the area, the presence of women of questionable character, brawls and the area being not only littered but defiled by persons who were easing themselves all over the place. While the petitioners and the residents of the area put up a valiant fight through the Corporation, Excise Department and the Courts, the respondent was successful in containing most of those efforts though with a degree of difficulty and he was persistently using strong arm methods against those who were opposing him, particularly the petitioners. From the complaints that were lodged by the residents it Was clear that they were being threatened and intimidated even to the extent that acid will be thrown on them and that they will be finished off. Dangerous looking persons would call at the houses or flats and warn the opponents of dire consequences and furthermore, as far as the petitioners were concerned they were being repeatedly intimidated with glass pieces being thrown into their drive way, their dog was poisoned, their servants were intimidated and stopped working for a while and despite repeated complaints to the various authorities, no action was taken against the persons responsible for all this. The direct pointer as far as the respondent is concerned emerges from the fact that he was finding it difficult within the framework of the law to keep this business going in that market and to keep his licence alive in view of the opposition and he had therefore repeatedly offered the petitioners and others a cease fire, demanded that they should sign a no objection which they had refused to do. This more or less summarises the situation as in December 1998. The reason why I have had to plod through the voluminous material produced before me which included the copies of the various proceedings was because the petitioners' learned Advocate submitted that there was a virtual war going on between the parties at that point of time and that in this background, the Court would have to evaluate as to what credibility could be attached to the bald statements set out in the complaint dehors independent corroboration.
13. As indicated by me earlier, this complaint is filed on 4.1.1999 and the complainant has also set out briefly the background of strong hostility which revolves round the running of his wine stores. He goes to the extent of stating that because of the hostility from the petitioners who were leading the agitation that he was hardly able to run his business. Ironically enough, in this background where according to the complainant the parties were on such hostile terms, the petitioner No. 1 is supposed to have asked him for a hand loan of Rs. Ten Thousand which he refused to give and that according to him was the reason why out of vengeance, the various hostile moves were undertaken. Pausing here for a moment, even without the complainant having to be cross- examined, it would appear down-right absurd that where the parties are virtually at war, Petitioner No. 1 would even have any occasion to ask for hand loan because such a transaction can only be between friends. Taken at face value therefore, this statement would not inspire any confidence in the Court even without its being tested in cross-examination.
14. Coming to the incident proper, it would be more useful if the relevant part of the complaint wherein the incident is set out were to be reproduced:-
"The complainant is also running the business under the name and style of Rosary Condiments at Shop No. 11 and on 11.12.1998 at about 10A.M. at the time when the complainant was looking into the accounts of the business of M/s. Rosary Condiments, the accused persons entered the shop No. 11 forcibly by trespassing into the shop premises and threatened the complainant that though he had obtained the licence she would not let him permit to open the shop premises. Further, the 1st accused also abused the complainant with all the vulgar and defamatory language by attributing the language that the complainant is an idiot and loafer and at that time Sri Dominic who was along with the complainant requested the accused persons not to commit such unlawful acts at the shop premises and at that time the 2nd accused also abused the said Dominic as idiot and loafter and assaulted Sri Dominic with his hand. Further, the 2nd accused picked up empty Coca Cola bottles and the 1st accused picked up the bottles filled with chocolate and threatened the complainant and Sri Dominic that they would assault the complainant and Dominic and they would endanger their lives. At that time one Sri J. Reddy and the employee Sri Devaraju were also present. The complainant submits that both the accused persons had vehemently threatened the complainant and as well Dominic they would not let the complainant to set up the business of wines stores and they would set up their own rowdy elements and endanger the lives of the complainant and accordingly the accused persons have criminally intimidated the complainant and as well Dominic. The accused persons also threatened to cause destruction of the property situated in the said shop and as well caused a threat to cause destruction of the property if the complainant were to open wine stores and also endanger the reputation of the complainant by attributing the words idiot and loafer. The accused persons having entered the shop premises forcibly with the intention of committing the aforesaid offences and intimidate and insult among the complainant and Sri Dominic and accordingly the accused persons have committed offences under Section 441 and 447 I.P.C. Further, the accused persons having criminally intimidated the complainant and as well having caused a threat of endanger the life of the complainant and as well Sri Dominic have committed the offences under Section 506(B) of I.P.C. and accordingly the accused persons are liable to be prosecuted for the said offences."
15. To summarise, the complainant's case therefore is that the accused who are an elderly couple and who are husband and wife are alleged to have entered the shop of the complainant and threatened, abused and intimidated him, the complainant's associate by the name of Dominic was present there and he also adds that two other men were also present. According to the complainant's version therefore he and three other men were present in the shop when the accused who are the elderly couple are alleged to have intimidated them and even threatened to assault them with bottle. Cleverly enough, no assault is alleged even though Section 323 IPC is invoked.
16. In sharp contrast to these narrations where the incident is alleged to have taken plate on 11.12.1998, in the Verification Statement the complainant seeks to allege that the loan was asked for in February which is something ten months earlier. What is very very material is that Paragraph 3 of the Verification Statement which is reproduced below substantially departs from the version in the complaint and goes to the extent of alleging that the complainant was actually hit on the head with a bottle by accused No. 2 and that the friend was also physically assaulted by them. Paragraph 3 of the Verification Statement reads as follows: -
"On 11.12.1998 at about 10 a.m. I was verifying my account in the condiment shop. Then A-1 and 2 came to my shop and abused me in vulgar language as you idiot and loafer and threatened to my life etc. Further, A-2 took up a cocacola bottle and hit me on the head. A-1 took up a chocolate box. Then I myself hide below the table. In the meantime, public gathered and also rescued me. Devraj, who is servant, Dominic who was reading paper and one Reddy came and pacified the incident. When Dominic pacified A-1 and 2 threatened and assaulted him with hands on his back and threatened to his life and my life. Then accused went away. On the next day I went to Frazer town PS and filed typed complaint to the PS but police did not accept it and not gave the acknowledgment. So I have filed this complaint."
17. Next, it would be relevant to reproduce the Verification Statement of Dominic which is as follows: -
"I know the accused and complainant.
On 11.12.98 at about 10 a.m. I was reading the papers in the condiments shop belonged to PW.1 A-1 and 2 were trespassed in the shop of PW.1 and abused him in vulgar language and threatened to his life. They abused as loafer, bastard, idiot etc. Then A-2 took a cocacola bottle and tried to assault PW.1 and A-1 took up a chocolate box. After seeing this I went and tried to pacify the incident. A-1 assaulted with his hands on my back and I sustained pain. After hearing public gathered and accused went away. At that time Devaraj who is servant of PW.1 and one Reddy were also present. They also tried to pacify them."
The version of this witness substantially differs from that of the complainant and even though this is not a stage for evaluation, what is material is that between the complainant and the two Verification Statements we have virtually three differing versions in respect of the alleged incident. Even without any further cross-examination at the trial, the question that looms large is as to whether on this record it can be said that a judicial authority can hold that any offence is made out.
18. In law, when an application for discharge of an accused is made, undoubtedly there will always be some material or some set of allegations but the simple test which a Court would apply is as to whether this evidence if uncontroverted could lead to a conviction. If the answer to that question is in the affirmative, then only there is justification for the trial to proceed but where the answer to that question is in the negative, then there is no ground on which judicial time can be wasted by going through the infructuous and useless exercise of a trial on a record which can never result in a conviction. No complainant can contend that despite a record that can never end in a conviction that the complainant should be permitted the luxury of expending precious judicial time but more importantly of proceeding with a trial wherein the accused are required to go through the torture and expense of protracted hearings. This is a facet of the law which this Court is also required to examine in an application for quashing of proceedings under Section 482 Cr.P.C.
19. There are two other significant aspects to the case, the first being that if the complainant was assaulted with a bottle and hit on his head, that there would have been an injury of some consequence and where it is alleged that both he and Dominic were in fact assaulted strangely enough, there is no wound certificate or medical record that is even referred to. Secondly, that in the background that is virtually admitted by both the parties, if the incident had taken place and the complainant who is a very seasoned litigant, went to the police station, from the record of the case it is very clear that he had all the authorities on his side since he had both money and muscle power. Since he was the bigger and the more powerful of the two parties, there is absolutely no doubt about the fact that the police would have straight away arrested the accused irrespective of whether there was any truth or not in the complaint. Assuming for purposes of argument that for whatever reason, the police refused to accept the written complaint dated 11.12.1998 which the complainant is supposed to have gone with, nothing stopped him from having served it on the police through the post but what I am more concerned with is that if the incident had taken place on that date if the complainant was the genuinely aggrieved party and if the police refused to react he would never have waited for over three weeks before approaching the Court. This aspect of the case is of crucial importance because in all criminal proceedings the timing is of immense consequence and delay is absolutely fatal. Viewed at from the legal angle, it would present an inherent impediment to the complainant's case that is absolutely fatal and in this background, it could never ever be argued that with this complexion of the record that the complainant could ever secure a conviction.
20. I need to only refer to one other significant aspect of this proceeding namely that the petition contains several averments all of which are supported by documents. The High Court on the basis of this record admitted the petition and stayed the proceedings. All the averments in the petition have remained uncontroverted and the complainant and the learned Advocate who were absent most of the time during the hearings have neither filed a formal reply, a denial or an explanation and this is again an aspect of the case that goes heavily against the complainant. There is no medical evidence in this case and it is the mere word of the complainant and some of his own persons who according to him were there which is supposed to establish offences of some seriousness. In the admitted background of bitter hostility and more importantly in the strange background that is presented where a complainant who is a virtual muscle man of the area and three of his male friends are supposedly present, contends that in such a situation the accused were the aggressors and that he was the victim; the version itself, apart from the fact that it borders on absurdity is totally unacceptable. While doing an assessment under Section 482 Cr.P.C., the limited evaluation which a Court is entitled to do is to carefully examine and if necessary dissect the case made out, in the process of deciding whether it is a proceeding which ought to be quashed or whether it should be permitted to continue. All of this, is dehors the documentary evidence produced to establish that the petitioners who are the accused before the criminal Court were in fact present at a meeting before the public authority at the time when the incident is supposed to have taken place. Even without the alibi being established, to my mind this factor goes against the complainant.
21. This Court is conscious of the fact that traditionally, where technically the ingredients of a prima facts case are made out that a Court would not quash the proceedings on the ground that the defence would have to either make out a case for acquittal or discharge. The result of inflexibly adopting that dictum would be that a party who decides to institute a false or vexatious criminal proceeding is only required to be careful while drafting the complaint, to put sufficient averments that come within the four corners of an offence and to then argue that the complainant should be permitted the luxury of a trial and the damage is done. The whole purpose of investing, the High Court with inherent powers under Section 482 Cr.P.C. is in order to prune unworthy litigation or to put it more appropriately, what the Supreme Court categorised as fake litigation and it is precisely this exercise which this Court is required to undertake. In a very small category of cases despite the skill of the draftsman if the High Court finds that there is not even the remotest but in actual fact zero possibility of a conviction, quashing of the complaint in exercise of the inherent powers is a must because even the continuance of the proceeding would constitute an abuse of judicial process. For the several reasons that have been set out earlier, it is necessary to record that this is a case which satisfies that criteria and consequently, the proceedings are liable to be quashed. Additionally, this Court records that the filing of the criminal complaint was thoroughly unjustified, that it was done for an oblique purpose, that it was vexatious and that it constituted a total and complete abuse of judicial process. The scrutiny procedure prescribed under the Criminal Procedure Code if properly applied in this case ought to have resulted in the dismissal of the complaint which has unfortunately not happened. In my opinion, this case satisfies all the well defined criteria laid down by the Courts for purposes of invocation of the inherent powers of the High Court and consequently, the proceedings are quashed.
22. The Criminal Procedure Code makes provision for the awarding of compensation in appropriate cases. After a very careful evaluation of the record, I brought it to the notice of the learned Advocates that this is a case in which I am prima facie of the opinion that very heavy compensatory costs be awarded. The Petitioners learned Advocate brought it to my notice that pursuant to the filing of this complaint that his clients were required to attend the Criminal Court on several dates of hearing and that they were required to leave all their other work and sit in the Court-room for several hours. It was his allegation that the complainant had manipulated the court staff as a result of which the case would not be called out for several hours, that it would be passed over and the petitioners kept waiting for no reason at all in the Court-room. He also produced a copy of a complaint addressed to the Chief Justice pointing out that on one date of hearing the case papers were mischievously sent to another learned Magistrate where the Court officer was a relation of one of the litigants in this proceeding and that non-bailable warrants were issued against the petitioners who were the accused, on the ground that they were absent and the petitioners were put to a lot of trouble and expenditure to get the warrants cancelled. The respondents had no explanation to tender for this. It was also pointed out to me that the complainant used to hire anti-social elements who would remain present in the Court compound and abuse and intimidate the petitioners so much so that they were required to write to the Additional Commissioner of Police Sri Singh who was satisfied that the danger was real and had to provide the petitioners with police protection even while attending the Court. His submission was that apart from time and torture, the petitioners have been hauled over the coals, that they have also had to spend a lot of money on the litigation and that the Court must award costs which are realistic and compensatory. The last submission was that in a situation where residents of a locality take up a just cause and the familiar pattern of brow beating and intimidation by persons who are on the wrong side of the law is resorted to, that if the Courts merely quash the proceedings, it is the victim who is left hurt and aggrieved whereas the person who has instituted the false litigation gets away scot- free. Learned Advocate submitted with a full sense of responsibility that the petitioners who have suffered severe health problems as a result of this, mauling be awarded exemplary costs quantified at Rupees One Lakh each.
23. The respondent's learned Advocate only repeated his earlier submissions that this is not a case which qualifies for quashing and that the petition must be dismissed. He reiterated that the complaint is genuine and tried to project the image that his client was at the receiving end. He stated that his client has suffered because he was forced to close the business in that area and shift elsewhere and that consequently, no case has been made out for award of compensatory costs.
24. I have very carefully examined the facts of this case. Though it is not uncommon to award compensation to the victim in a criminal case, the instances in which a superior Court would order compensation for false and malicious prosecution are few and far between. While assessing the aspect of the rights of the victim, a Court is required to treat the damage done to a victim of a false and vexatious prosecution on par with any other. Jurists have repeatedly highlighted the fact that the concept of doing justice requires that the rights of the victim be equally safeguarded and our Supreme Court has probably been a world leader in ensuring that an aggrieved party or a victim is duly compensated. Earlier, many of the Courts followed the incorrect Practice of awarding costs that were totally unrealistic and the Supreme Court was required to virtually lay down standards in a host of cases wherein a correct assessment of the facts and circumstances was undertaken and costs that could be categorised as meaningful and Coming within the definition of "truly compensatory" were awarded. There are situations such as the present one in which a Court while disposing of the proceeding is required to award punitive costs as would be done in a civil proceeding for damages for purposes of ensuring that the legal injury has been completely off-set. Though the petitioners' learned Advocate gave very valid reasons in support of his plea for costs quantified at Rupees One Lakh to each petitioner on the ground that this is an extremely gross case, I am inclined to scale the figure down and to direct that a sum of Rupees Fifty Thousand be awarded as costs to each of the petitioners.
25. In the result, the petition succeeds. The criminal proceedings in question are quashed. It is directed that the complainant shall pay costs quantified at Rupees Fifty Thousand to each of the petitioners aggregating to a sum of Rupees One Lakh and this amount shall be deposited by the complainant with the Trial Court within an outer limit of four weeks from today failing which, the Trial Court to recover the amount in question from the complainant. Once the amount is recovered, notice shall be issued to petitioner Nos. 1 and 2 and the amount of Rupees Fifty Thousand each shall be disbursed to them. With these directions, the petition to stand disposed of. The record be returned to the Trial Court forthwith.