Karnataka High Court
Sri Laxman S/O Sri Jaranappa vs The State Of Karnataka on 23 February, 2022
Author: S.G. Pandit
Bench: S.G. Pandit
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR. JUSTICE S.G. PANDIT
AND
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
W.A. No.100262/2021 (GM-RES)
BETWEEN
1. SRI LAXMAN S/O SRI JARANAPPA
AGED ABOUT 42 YEARS,
ASSISTANT ENGINEER
PWD SUB-DIVISION, KOPPAL
KOPPAL DISTRICT-583 231.
2. SRI. RAVI PRASAD S/O. S RAJANNA
AGED ABOUT 57 YEARS
ASSISTANT EXECUTIVE ENGINEER
PWD SUB-DIVISION
R/AT NO.22, SRI LAXMINARASIMHA NILAYA
V.N RESIDENCY ROAD
CHIKKALASANDRA
BANGALORE-560-061
3. SRI SELVA KUMAR S/O BALAKRISHNA.T
AGED ABOUT 47 YEARS,
JUNIOR ENGINEER
C/O D.NO.D-4, KEB QUARTERS
BEHIND ESI HOSPITAL
RAJAJINAGAR, BANGALORE-560 010
4. SRI.H VISHWANATH S/O SRI SADASHIVAPPA
AGED ABOUT 52 YEARS,
2
ASSISTANT ENGINEER
M.I. SUB DIVISION
HALIYAL POST
UTTARA KANNADA DISTRICT
5. SRI RAJSHEKAR KATTIMANI
S/O MARIYAPPA KATTIMANI
AGED ABOUT 42 YEARS,
WORKING AS A JUNIOR ENGINEER
MI SUB-DIVISION, KUSHTAGI
KOPPAL DISTRICT-583231
6. SRI SHANKARGOWDA PATIL
S/O SRI DHARMAGOUDA
AGED ABOUT 50 YEARS,
WORKING AS A JUNIOR ENGINEER
PRE SUB-DIVISION
RON, GADAG DISTRICT.
7. SRI.M. LLIYAS S/O IBRAHIM SAB
AGED ABOUT 54 YEARS,
WORKING AS A JUNIOR ENGINEER
PRE SUB DIVISION
YALBURGA, YALBURGA DISTRICT.
8. SRI OMKAR MURTHY
S/O SRI VEERACHAR. B
AGED ABOUT 54 YEARS
WORKING AS A JUNIOR ENGINEER
PRE SUB DIVISION
YALBURGA, YALBURGA DISTRICT-583231.
9. SRI V.S. HALLI S/O SADASHIVAPPA HALLI
AGED ABOUT 44 YEARS,
WORKING AS A JUNIOR ENGINEER
PRE SUB-DIVISION, SINDAGI
VIJAYAPURA DISTRICT.
10 . SRI R. SHARANAPPA GOUDA
S/O LATE SRI SHIVANAGAPPA
AGED ABOUT 58 YEARS
3
WORKING AS ASSISTANT
EXECUTIVE ENGINEER
MINOR IRRIGATION SUB- DIVISION
YADIGIRI,
R/AT NIJLINGAPPA COLONY
RAICHUR.
11 . SRI. THOTAGANTI B.C.
S/O CHANNAPPA TOTAGANTI
AGED ABOUT 60 YEARS,
RETIRED ASSISTANT EXECUTIVE ENGINEER
PWD SUB-DIVISION
KUSTAGI,
R/AT HOUSING COLONY
NEAR MARUTHI TEMPLE
MANTUR ROAD, MUDHOL
BAGALKOT DISTRICT-583231
12. SRI ZAKIR HUSSAIN S/O B. ABDUL LATEEF
AGED ABOUT 57 YEARS
ASSISTANT EXECUTIVE ENGINEER
MINOR IRRIGATION
SUBDIVISION, KUSHTAGI
KOPPAL DISTRICT-583231
...APPELLANTS
(BY SRI.F V PATIL, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
REP. BY ITS PRINCIPAL SECRETARY
RURAL DEVELOPMENT AND PANCHAYATH RAJ
DEPARTMENT, VIKAS SOUDHA
BANGALORE-560 001.
2. THE REGISTRAR
KARNATAKA LOKAYUKTA
DR. AMBEDKAR VEEDHI
BANGALORE-560 001.
4
3. THE INSPECTOR-GENERAL OF POLICE
ANTI-CORRUPTION BUREAU
KHANIJA BHAVAN
BANGALORE-560 001.
4. THE POLICE INSPECTOR
ANTI- CORRUPTION BUREAU
KOPPAL
KOPPAL DISTRICT-583 231.
...RESPONDENTS
(BY SRI.G.K.HIREGOUDAR, GOVT. ADVOCATE FOR R1,
SRI.ANIL KALE, ADVOCATE FOR R2,
SRI.SUNIL S DESAI, ADVOCATE FOR R3 & R4)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON'BLE COURT TO,
A) SET ASIDE THE ORDER DATED 26.02.2021 PASSED IN WP
NOS.63379-80/2016 C/W WP NOS. 58381-385/2016, 61291-
302/2016, 65259/2016 AND 107657/2017 BY THE LEARNED
SINGLE JUDGE IN DISMISSING THE WRIT PETITION AS
AGAINST THE APPELLANTS IN THE INTEREST OF JUSTICE AND
EQUITY, B) AND GRANT SUCH OTHER ORDER OR DIRECTIONS
AS THIS HON'BLE COURT DEEMS FIT UNDER THE
CIRCUMSTANCES OF THE CASE, INCLUDING COSTS, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT', THIS DAY, ANANT RAMANATH HEGDE J.,
DELIVERED THE FOLLOWING:
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JUDGEMENT
Writ petitions filed by the petitioners are disposed of by common order dated 26.02.2021, wherein the writ petitions invoking Articles 226, 227 of Constitution of India and Section 482 of Code of Criminal Procedure (for short, 'Cr.P.C.') are rejected.
2. The prayer made in the writ petitions would read as under:
"Call for records relating to the issue of the order/complaint bearing No.Gra.Aa.Pa.35 Enq 2015, Bengaluru, dated 03.10.2016 (Annexure-A) f respondent No.1 and FIR dated 07.11.2016 in Crime No.3/2016 on the file of the learned Principal District and Sessions Judge, Koppal and quash the same."
3. The petitioners are before this Court invoking Section 4 of the Karnataka High Court Act, 1961. Brief facts of the case are as under:
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3.1 The complaint was registered in Cr.No.3/2016 by Anti Corruption Bureau police station, Koppal Taluk, Koppal District against the petitioners alleging misappropriation of funds. The further details relating to the above said complaint is not necessary for adjudication of this case. The copy of FIR was sent to District and Sessions Judge, Koppal as required under law. The petitioners being aggrieved by the complaint and registration of FIR approached this Court by filing a petition in W.P.No.63379-80/2016 and connected matters.
3.2 The petitioners have essentially prayed to quash the FIR in Crime No.3/2016 and to quash all further proceedings before the Principal District and Sessions Judge, Koppal pursuant to the above-referred FIR. The learned Single Judge after hearing the petitioners and the respondents in terms of the detailed order dated:
26.02.2021, deemed it appropriate to dismiss the writ petitions. Aggrieved by the dismissal of the writ petitions the petitioners have preferred the instant appeal. The 7 appeal is heard on the question of maintainability under Section 4 of Karnataka High Court Act.
4. Learned counsel for the appellants, Sri.F.V.Patil justifying the appeal has placed reliance on the following judgements:
1. Gurushanth Pattedar vs. Mahaboob Shahi Kulburga Mills and Another [ILR 2005 KAR 2503]
2. Shreemad Jagadguru Shankaracharya Shree Shree Raghaveshwara Bharathi Swamiji vs. State of Karnataka, Girinagara Police Station and Others [ILR 2015 KAR 842]
3. Ram Kishan Fauji vs. the State of Haryana and Others [(2017) 5 SCC 533]
4. Union of India, Ministry of Home Affairs vs. Asim Shariff and Others [ILR 2018 KAR 2915]
5. Sri.Sachin Narayan vs. The Income Tax Department and Others (Writ Appeal No.3611/201 and connected matters decided on 17.09.2019) 8
6. India Awake For Transparency vs. Mr Azim Hasham Premji and Others (Writ Appeal No.224/2021 c/w. Writ Appeal No.242/2021 decided on 22.02.2021)
5. By placing reliance on the above judgements, Sri.F.V.Patil would submit that the order passed by the learned Single Judge is to be construed as an order passed under Article 226 of the Constitution of India in the exercise of its original jurisdiction and as such would submit that the appeal under Section 4 of the Karnataka High Court Act is maintainable.
6. In support of his submission he would also refer to the prayer made in the writ petitions and would submit that the petitioners have not questioned any proceeding before the Court subordinate to the High Court, as such the petitions cannot be construed as the petitions filed under Article 227 of the Constitution of India and Section 482 of Code of Criminal Procedure.
7. Further, the learned counsel would submit that the prayer made in the writ petitions would in 9 unmistakable terms lead to the conclusion that the petitions are filed under Article 226 of the Constitution of India. It is also the submission of the learned counsel for the appellants, Sri.F.V.Patil that in view of the circular issued by the High Court, all petitions filed under Article 226 of the Constitution of India with a prayer to quash the complaint or FIR or any criminal proceeding pending before the trial court will be treated as a petition under Section 482 of Criminal Procedure Code and despite the classification applicable to the criminal roster is assigned to such cases, the power to be exercised by the Court is under Article 226 of the Constitution of India and based on this submission, he would contend that the learned Single Judge has exercised powers under Article 226 of the Constitution of India or in any case has failed to exercise power vested under Article 226 of the Constitution of India and as such submits that the appeal is maintainable under Section 4 of the Karnataka High Court Act. 10
8. Sri. G.K.Hiregoudar learned Government Advocate appearing for respondent No.1 would submit that the impugned order is passed in exercise of power under Section 482 of Criminal Procedure Code as such, the Karnataka High Court Act does not provide for an appeal against the orders passed by the learned Single Judge in exercise of power under Section 482 of Criminal Procedure Code and prays for dismissal of the appeal.
9. Sri. G.K.Hiregoudar learned Government Advocate would refer to the judgement delivered by the Co-ordinate Bench of this Court in the matter of Sri. Sachin Narayan vs. The Income Tax Department and Others (Writ Appeal No.3611/201 and connected matters decided on 17.09.2019) and would submit that the case is squarely covered in terms of the said judgement.
10. Learned counsel, Sri.Anil Kale and Sri. Sunil S Desai appearing for other respondents would also support the submission of Sri. G.K.Hiregoudar learned Government Advocate.
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11. This Court heard the appeal on maintainability and this Court is of the opinion that the writ appeal is not maintainable for the following reasons:
12. Section 4 of the Karnataka High Court Act provides for an appeal against the order passed by the learned Single Judge. Section 4 of the Karnataka High Court Act reads as under:
"4. Appeals from decisions of a single Judge of the High Court: An appeal from a judgement, decree, order or sentence passed by a single Judge in the exercise of the original jurisdiction of the High Court under this Act or under any law for the time being in force, shall lie to and be heard by a Bench consisting of two other Judges of the High Court."
13. From reading of Section 4 of the Karnataka High Court Act, it is apparent that an appeal shall lie on the judgement, decree, order or sentence passed by a Single Judge in exercise of the original jurisdiction of the 12 High Court under this Act or any law for the time being in force.
14. This Court has considered the contentions raised at the bar and perused the pleadings, the impugned order and the judgements cited at the bar.
15. From the judgements cited at the bar, it is apparent that even in those cases where the petitioners invoke Articles 226, 227 of Constitution of India and Section 482 of Cr.P.C., the jurisdiction to entertain the appeal depends on the power exercised by the learned Single Judge while deciding the petition, where above said three provisions of the law are invoked. In case the Court exercises power under Article 226 of the Constitution of India, in a petition where Section 482 of Cr.P.C. is also invoked, then the Court would get jurisdiction to entertain the appeal under Section 4 of the Karnataka High Court Act. However, despite invoking Article 226 of the Constitution of India if the Court chooses to exercise its power under Section 482 of Cr.P.C. and passes an order in 13 exercise of such power under Section 482 of Cr.P.C., appeal under Section 4 of the Karnataka High Court Act is not maintainable. Thus what is required to be considered is, of the three provisions invoked before the learned Single Judge, which provision of law is invoked by the learned Single Judge while passing the impugned order.
16. This Court perused the impugned order. In paragraph No.22 of the impugned order, the learned Single Judge analysed the power of the Court under Section 482 of Cr.P.C. From a reading of the same, it is quite apparent that the learned Single Judge has dismissed the petition in exercise of the powers under Section 482 of Cr.P.C. The learned Single Judge while deciding the case has not exercised any powers under Article 226 of the Constitution of India. Under these circumstances, this Court is of the opinion that it cannot sit in appeal over an order which is passed in exercise of powers under Section 482 of Cr.P.C.
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17. Learned counsel, Sri.F.V.Patil would submit that the prayer made in the petitions is essentially to quash the complaint, as well as the FIR, registered against the petitioners. It is his submission that such a prayer cannot be made by invoking Section 482 of Cr.P.C. He would submit that prayer to quash the complaint and FIR can be made only by invoking Article 226 of the Constitution of India. According to him dismissal of the writ petitions should be construed as a failure of exercise of power under Article 226 of the Constitution of India by the learned Single Judge which is vested under Article 226 of the Constitution of India.
18. Section 482 of Cr.P.C. would read as under:
"482. Saving of inherent power of High Court:-
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."15
19. Section 482 of Cr.P.C. in substance does not confer any additional power on the High Court, however, saves the inherent power that is vested in the High Court. The contention that the High Court has no inherent power under Section 482 of Cr.P.C. to quash the complaint or FIR is not a valid contention. Once the complaint is registered before the jurisdictional police same will have to be sent to jurisdictional magistrate or jurisdictional Sessions Judge depending upon the nature of the offences. If any person aggrieved by registration of FIR, then it is open to aggrieved person to approach High Court under Section 482 of Cr.P.C. if the conditions specified in Section 482 of Cr.P.C. are met. In such cases the High Court in the exercise of its inherent power can pass appropriate orders in a petition filed under Section 482 of Cr.P.C. Thus the contention of Sri.F.V.Patil that the power under Section 482 of Cr.P.C. can be exercised only in respect of proceedings before the trial Court or Appellate Court in a criminal proceeding and no such power can be exercise to 16 quash the complaint or FIR registered before the police has no merit.
20. Since the learned Single Judge has passed orders under Section 482 of Cr.P.C. this Court is of the opinion that the writ appeal is not maintainable. The judgments cited by the learned counsel for the appellant cited supra do not come to the rescue of the appellant as this Court in those judgments has held that the writ appeal under Section 4 of the Karnataka High Court Act is not maintainable against the orders passed in exercise of the power under Section 482 of the Cr.P.C. In the matter of Schain Narayana V/s. Income Tax Department the Co- ordinate bench of this Court in paragraph No.19 of the judgement has held as under :-
"Merely because a petition is styled as the one under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. it cannot be said that the power is exercised under all the three provisions by the learned Single Judge. In a given case on the basis of factual aspects, if it is found that the learned Single Judge had exercised the power under Section 482 of Cr.P.C. 17 while passing the impugned order, the appeal under Section 4 of the High Court Act will not be maintainable."
21. Under these circumstances, this Court is of the opinion that the writ appeal is not maintainable given the fact that the impugned order is passed in exercise of power under Section 482 of Cr.P.C. Hence, the following:
ORDER The appeal is dismissed.
SD/-
JUDGE SD/-
JUDGE sh