Karnataka High Court
Smt. Geetha W/O Neelakanta And ... vs Sub Inspector Of Excise Mudigere, Sub ... on 29 March, 2007
Equivalent citations: 2007CRILJ3496, 2007(4)KARLJ619, 2007 CRI. L. J. 3496, 2007 (4) AIR KAR R 150, (2007) 4 ALLCRILR 490, (2007) 4 KANT LJ 619
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
JUDGMENT D.V. Shylendra Kumar, J.
1. The first writ petitioner is a lady against whom Crime No. 57 of 2002, which was registered on 30-9-2002 for commission of offences attracting Sections 176, 420, 498 IPC, is pending at the Mudigere police station, Mudigere circle and taluk. The second petitioner is the husband of the first petitioner and also arrayed as an accused in the said crime number.
2. The petitioners have sought for quashing of the proceedings in this crime number, which is now on the file of the JMFC, Mudigere, with the police having filed a report before the Magistrate.
3. It is the case of the petitioners that an excise case in CC No. 248 of 2000 at the instance of the Sub-inspector of Excise, Mudigere [first respondent herein] is pending against one Yogamma wife of Neelakantegowda for having violated Sections 11 and 14 of the Karnataka Excise Act, 1965 [for short, the Act] punishable under Sections 34 and 43A of the Act; that summons had been issued to the said accused person and the summons having not been served, non-bailable warrant had also been issued; that even thereafter, the police were unable to produce the said accused person before the court and in such circumstance, the learned Magistrate had taken to task the excise officer who had initiated the proceedings and the excise officer i.e. the first respondent [named as third respondent] to save his skin had falsely implicated the first petitioner in (he case and sought to produce her as the said Yogamma and when the first petitioner stoutly resisted such attempt on the part of the first respondent, the first respondent has filed a false complaint before the station house officer at Mudigere police station [second respondent] alleging that the first petitioner had impersonated as Yogamma on 23-12-1999; that while a search had taken place at the place/residence of the first petitioner when a mahazar had been drawn and further that the second petitioner - husband of first petitioner -having tiled to help the first petitioner inducing the officer to believe that the first petitioner was Yogamma as on the date of search i.e. on 23-12-1999, both of them have committed the offences punishable under Sections 176, 420, 468 IPC; that such a false case is registered in Crime No. 57 of 2002 on 30-4-2002 and in fact both the petitioners had been arrested by the second respondent and produced before the jurisdictional magistrate, who has enlarged them on bail; that the filing of such a concocted and false complaint-against the petitioners has resulted in considerable hardship and harassment to the petitioners; that the proceedings in Crime No. 57 of 2002 are illegal proceedings only to harass the petitioners; that the entire: proceedings are at the behest of one H.R. Nagaraju, who is an employee of the local excise contractor and who, it is claimed, figures as a witness to the panchanama purported to be drawn at the residence of the petitioners on 23-12-1999; that the petitioners are not even aware of the proceedings in CC No. 248 of 2000; that the petitioners have nothing to do with the said case; that the first respondent is dying to falsely implicate both the petitioners in Crime No. 57 of 2002 and the first petitioner in CC No. 248 of 2000; that it is a misuse and abuse of the powers and procedure under the Act as well as the provisions of Code of Criminal Procedure and that the proceedings in Crime No. 57 of 2002 deserves to be quashed by issue of a writ of certiorari and a further writ of prohibition should be issued to restrain the respondents from proceeding with the case in CC No. 248 of 2002 by producing or involving the first petitioner as Yogamma (accused) in that case and for such relief.
4. Notices were issued to the respondents on 27.5.2002 and the writ petition was admitted by issue of rule thereafter on 11-6-2002.
5. By an interim order dated 11-6-2002, this Court has stayed the further proceedings in CC No. 248 of 2000.
6. Respondents have been served and are represented by the learned Government Advocate. Statement of objections has been filed, inter alia, contending that the writ petition is not tenable; that the petition is only a device to wriggle out of the criminal case pending against the petitioners; that in terms of the mahazar drawn up on the date of inspection of the premises of the first petitioner i.e. on 23-12-1999, it is clearly established that the first petitioner was in illegal possession of a quantum of 7.5 ltrs of illicit liquor; that the panch witnesses have witnessed the seizure of this quantity of liquor from the possession of the first petitioner; that in terms of the statement given by one H R Nagaraju, who had stood surety in favour of the first petitioner for her release on bail, the first petitioner has been identified as the person who had impersonated as Yogamma on the date of seizure i.e. on 23-12-1999; that there is absolutely no merit in the writ petition and it is required to be dismissed.
7. It is also averred that the petitioners if are really aggrieved could have invoked the provisions of Section 482 CrPC and instead have filed the present writ petition, which should not be entertained.
8. I have heard Sri S M Chandrashekar, learned Counsel for the petitioner and Sri M Keshava Reddy, learned Additional Government Advocate for the respondents.
9. I have perused Annexure-A, copy of reported submitted by the first respondent to his higher authorities regarding the seizure of illicit liquor on 23-12-1999; Annexure-B, a copy of the charge sheet in CC No. 248 of 2000; Annexure-C, a copy of the order sheet maintained in CC No. 248 of 2000 on the file of Additional Civil Judge (Jr. Dn.) and JMFC, Mudigere; Annexure-D, a copy of the first information report in Crime No. 57 of 2002 lodged before the JMFC, Mudigere, along with a copy of the complaint from the inspector of excise to the sub-inspector of police with regard to the incident of impersonation by the first petitioner.
10. The learned Additional Government Advocate has also placed before the court the case diary relating to Crime No. 57 of 2002.
11. It is the case of the petitioners that the first petitioner - Geetha is wife of the second petitioner Neelakantegowda, son of Marigowda; that they are agriculturists and residents of Makonahalli village; that as they were falsely implicated in crime No. 57/2002 and were produced before the Magistrate on 1-5-2002 by the second respondent - Sub Inspector of Police, Mudigere who arrested them on 30-4-2002 and they have obtained bail on 2-5-2002 and are now on bail in Crime No. 57/2002; that they come from a very respectable family owning a coffee estate in Makonahalli; that they have nothing to do with either the illegal possessing of illicit liquor of 7.5 liters nor any occasion for the first petitioner to misrepresent herself to be as one Yogamma for the purpose of cheating the respondents; that the respondents who have failed to perform their duty in a proper manner and who are facing the heat before the criminal court in failing to produce the Accused - Yogamma have falsely generated the present case of Crime No. 57/2002 and the respondents have been harassing the petitioners; that the respondents are now trying to arrest the first petitioner alleging that she is Yogamma and as that was resisted the respondents have come up with the present false case of impersonation against the petitioners; that though the petitioners are not the accused persons in CC No. 248/2000 they are sought to be arrested in that case, in which event the petitioners, particularly the first petitioner will not be able to even move a bail application as she is not the accused therein and cannot move bail application in the name of the accused; that the respondents are trying to take advantage of registering the second case of crime No. 57/2002 to arrest the first petitioner in the earlier case of CC No. 248/2000 now pending before the Court of Magistrate, Mudigere; that the respondents have violated the rights of the petitioners and have affected their liberty and freedom; that they are being subjected to acute hardship, suffering and mental agony; that the fabricated crime case against them in crime No. 57/2002 is liable to be quashed as the respondents have misused and abused the provisions of law; that the illegal action on the part of the respondents is violative of petitioners-right guaranteed under Articles 14 and 21 of the Constitution of India; that even in the absence of any worthwhile material, the respondents have registered this case against the petitioners for an offence said to have been committed and punishable; under Section 176, 420 and 468 of the IPC; that the proceedings in Crime No. 57/2002 is not tenable in law and is liable to be quashed.
12. Statement of objections filed on behalf of the respondents, as noticed earlier, does not answer the allegation of the petitioners that the person who has stated before the Police i.e., one H K Nagaraj that the first petitioner had represented herself to be as Yogamma when the first petitioner was at the residence of the petitioner as on 23-12-1999; that he is an employee of the Excise Contractor of the area; that he has been signing as witness in all such false cases foisted against several persons; that there is absolutely no material but for such concocted version of the respondents and therefore the proceedings are liable to be quashed.
13. This part of the allegation is not suitably met or answered in the statement filed on behalf of the respondents. The first information report which is registered in Crime No. 57/2002 at the Mudigere Police Station is on the basis of a complaint given by the officials of the Excise Department - respondent No. 1 and is being registered and investigated by the respondent No. 2 who is also the Police Officer who has filed the charge sheet in CC No. 248/2000.
14. Even a bare perusal of the sections for commission of offence under which sections the accused persons are punished indicates that there is no material or ingredients in respect of the activities of the accused persons to bring them within the scope of any of these provisions. The sections quoted in the first information report are Sections 176, 420 and 468 of the IPC.
15. While it is not disputed that in the case of the second petitioner - husband of the first petitioner, the person was not even present at the time of the incident and no knowledge of impersonation can be attributed to him assuming that the first petitioner had impersonated, even the ingredients of Section 176 of the IPC are not made out as against the second petitioner.
16. Though the learned Additional Government Advocate tried to show that there is some connection in the ingredients of Section 176 relatable to the second petitioner and though it is vehemently urged by Sri. Keshava Reddy, learned Additional Government Advocate that this Court should not interfere at this stage as there is some connection and material, I find that it is rather puzzling as to how a person who was not on the scene can be alleged for having committed an offence of this nature under para 2 of Section 176 which reads as under.
or, if the notice or information required to be given respects the commission of an offence, or is required for the purpose of preventing the commission of an offence, or in order to the apprehension of an offender, with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both;
17. Though learned Additional Government Advocate contends that it was the duty of the second petitioner to have given the information about the illegal activities of his wife - the first petitioner regarding possessing unauthorised liquor etc., and when it is the version of both the petitioners that they are not involved in any such activity, it is too much to accuse a husband that he is not providing information as per law against his wife about her illegal activities and therefore it constitutes an offence punishable in terms of Section 176 of the IPC.
18. So far as the first petitioner is concerned, the provisions of Section 176 of the IPC are never attracted as if at all the version is that she has impersonated and not giving any information legally bound to furnish etc. By no stretch of imagination, either petitioner can be said to have committed an offence under Section 420 of the IPC.
19. So far as offence under Section 468 is concerned though learned Additional Government Advocate has tried to defend that some of the activities attributed to the petitioners as indicated to the first information report can come within the scope of this section as against the first petitioner, in the sense that, she has committed forgery by signing as Yogamma and with the intention of cheating the respondents later by using that document and claiming that she is not Yogamma but only as Geetha, the scope and object of Section 468 of the IPC is definitely not one such which reads as under:
468. Forgery for purpose of cheating - Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
and it is only a person who commits forgery, thereby creates a document with an intention of using that document for the purpose of cheating who comes within the scope of such section and not the person like the first petitioner who it is if at all as alleged is impersonated as Yogamma.
20. I find even on a prima facie examination, neither petitioner can be accused of having committed an offence punishable under Section 176, 420 or 468 of the IPC.
21. Though this Court would not normally interfere with the criminal proceedings whether at investigation stage or when the matter is before the court and during trial, the court cannot lose sight of the fact that criminal procedure is a very powerful instrument which can result in grave detriment to the persons who are falsely implicated and can drastically affect the freedom and liberty of a citizen.
22. It is very obvious that the respondents are not making much headway in their first case namely CC No. 248/2000 pending before the Addl. Civil Judge [Jr. Dn.,] & JMPC, Mudigere as the accused person is not even produced before the court so far.
23. To cover up whatever lapses or defect, it is obvious that they have come up with the ingenuity of filing another case against the petitioners and registering it as crime No. 57/2002. A pending criminal case whether at investigation stage or when it is pending before the court can by itself can be an instrument of considerable harassment to the accused persons, particularly, when false case or suspect cases are launched for ulterior purposes.
24. It is high time that courts take judicial notice of the suspect manner of functioning of Police and Excise authorities. Corruption is rampant in both the departments. Actions on the part of the Police and Excise Authorities though claimed to be in an official capacity, courts cannot accept them at face value nor can draw a presumption of valid bona fide conduct on their part with any degree of confidence that all actions have been taken in a bona fide manner or for a proper purpose.
25. The present scenario indicates that for making good one case which may or may not result in a conviction or otherwise and as that is not progressing further, the respondents have generated another criminal case. What possible harassment which is the natural result of arresting any person and producing him/her before the court, could have been heaped on the person and which became not possible in the first case, has been effectively achieved through the second case when admittedly, the respondents have registered the case against one Yogamma. They cannot arrest for such purpose the first petitioner who claims she is Geetha and wife of the second petitioner.
26. A perusal of the mahazar drawn up relating to the first case indicates that even that Yogamma is given different descriptions in the very mahazar, at one place she is shown as daughter of Srikantegowda and at another place, it is shown as wife of Neelakantegowda and very strangely in the first information report relating to crime No. 57/2002, the very Srikantegowda is also described as alias Neelakantegowda who is son of Marigowda.
27. While it is not necessary for this Court to examine the further aspects in CC No. 248/2000 pending before the Court of the Civil Judge [Jr. Dn.,] & JMFC, Mudigere, it was looked into to some extent as the second case is directly linked to the first case and it is only an off shoot of the first case.
28. I find that the respondents may not make any headway at all in the second case and as the petitioners also submitted that it is a false case, the question is whether to allow such proceedings to be kept pending to the further detriment and harassment of the petitioners.
29. As observed earlier, the Police Officials and Excise Officials whose bonafides are suspect and whose credibility is rather low and wherein corruption is rampant, whether should be permitted to generate criminal case one after the other against the persons who are not even involved. It will be a travesty of law, procedure and liberty to allow them to do it and safety of the citizens will be at peril if such illegal actions are not checked.
30. I find that registering crime No. 57/2002 as against the petitioners is more an abuse of the process of the provisions of the Indian Penal Code, 1860 and Criminal Procedure Code, 1973, rather than for any bonafide prosecution.
31. It is the duty of this Court to protect the liberty and freedom of citizens when citizens allege violation of their right under Article 21 of the Constitution of India and to provide protection to the citizens. Though normally, criminal proceedings are not examined and made subject matter of issue of writs, in the present case, I am fully satisfied that the proceedings are more an abuse of the process of law and a harassment to the petitioners.
32. The arms of law and supervisory jurisdiction of this Court under Article 227 apart from the original jurisdiction under Article 226 of the Constitution of India should be put to effective use for remedying a situation of this nature and for protecting the rights of the citizens.
33. As has been indicated by the Supreme Court, the High Court even in the exercise of powers under Articles 226 and 227 of the Constitution of India, should interfere in a matter where it is found that the proceedings are more a harassment to the accused persons who are bonafide persons as per the law laid down in the case of 'Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors.' and 'State of West Bengal and Ors. v. Swapan Kumar Guha and Ors.' .
34. As a result, the proceedings in Crime No. 57/2002 investigated by the Mudigere Police through the respondent No. 2 and placed before the JMFC, Mudigere are hereby quashed by issue of a writ of certiorari.
35. Writ petition is allowed.
36. Rule issued and made absolute.