Karnataka High Court
C Dinakar vs S Krishnamurthy on 12 November, 2009
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 12TH DAY OF NOVEMBER, 2009 j
BEFORE _ A _
Ti-IE HONBLE MR. JUSTICE ASHOK EV. HINC«I'£'I<?;F:§}?{:I~t./,::: - _ 0
CRIMINAL PETITION No.949;:':oF}Zoes".g 4' ' V
BETWEEN: C C
C. Dinakar,
Aged 67 years,
S/o Late Dr.C.R.Dinakar,
No.380, 100 Feet Road,
HAL II Stage, H ._ u ._
Bangalore -- 560 008 '_' ' V. C I Petitioner
---- in
S. Krishnamtirthy-.1 , _ 1'
No.71,N.N.Ea:rms, I
Geddalahalli, Sa'rIj4aynagar',.g' .--
Bangalore 5560 094:0' Respondent
;l:{By.:SriA S. Aflirishiiainurthy -- in person)
U/S482 Cr.P.C by the advocate for
the petitioner "prayirig»that this Hon'ble Court may be pleased
Vtoquashi the impiigiied two orders dated 29.11.2006 of the
".;C.l\V/i._M., Bang'a1oI'e City at An1'1exures~A and B and
..p'r.ocee_dings ~~I'n*;.C.C.No.8409/05 in the Court of the CMM,
B:an.galorei_. and order returning the complaint to the
r¢SpO13.Vdel]t".%mth a direction to present it in the Jurisdictional
'v._'Cou__Ift_ and 'further discharge the bail bonds executed by the
petitioner in C.C.No.8409/05.
V :fThis Cr1.P having been heard and reserved for orders on
24.04.2009, coming on for pronouncement of orders on this
day, the Court made the following:
ix)
ORDER
The petitioner has raised the challenge to the orders, dt.29.l1.2006 (AnneXureswA and B respectively) the learned Chief Metropolitan Magistrate ~ City in C.C.N'o.No.8409/2005.
2. The facts of the case in 4"bprie.f are-".l. V respondent filed a private comp1aint._Tagainst~ethel'petitioner alleging commission of the the respondent was working as of Police, Prisons as on ¥ol'l."'23l'}24.12.2001, a construction with two others had entered his honsel inihéanjaynagar, Bangalore. The saidplviurugialn was lt is the case of the respondent thata polioe by name Purushotham Rao opened the Zizfire at Vtlxivo others on his seeing the three men lihreaiking c}'p¢fi_thé kitchen door with a stone slab. The pevtitionerl this to be a mere coverwup story for the cold .i"'4bv1oo'ded"§rnnrder with no justification for the plea of private 'defenpeiel In this regard, the petitioner wrote to the Home Minister of the State Government on 26.12.2001 and the 335$ Nationai Human Efights Commission [NHRCL New Delhi on 28.12.2001. in and through the said letters, the petitioner requested for the registration of the case and handing .g'o%;er the case to the C.B.1. Aggrieved by the alleged imputations, the respondent filed the private the said proceedings, the respondentfrriade invoking Section 201 of Cr.P.C _a prayer'-- for V of the proceedings and for returninugi'»of'the conipiaint':§on the ground that C.iVI.1\/i. has no jurisdiction try the case. By his order, dt,29.11,2006, theC':iV'i'.1\ri..ivV--dismissed the said I.A holding"that:»hisi:'§C'oa,.irtV.:has territorial jurisdiction to try the case* x "
3. _Pursuant..,2htothe 'Special Order passed under Sehtiori and_(3] he transferred the matter to the whom the cases of Sanjaynagar V"VAjgAuris_dictio'ii-- and other places were assigned. Aggrieved by u4th'e'.s'e.pynorders, the petitioner filed Criminal Revision Petition which was dismissed by the Court of the Judge, IV Fast Track Court by its order, 4"fai.i13.02.2008.
5% AND ANOTHER. reported in (2004) 8 SCC 100. The relevant paragraphs of the said judgment are extracted l1ereir1be1VoVir_:':"'i._V "8. Sections 177 to 186 deal with venue and__;i:l.ace' S V of trial. Section 177' reiterates the well--es_tabl,.z's:hed--..:: . common--law rule referred to in 7Lawsl,:"of England (Vol.9, para 83) that the pro'per7.and venue for the trial of a crime is the'«a_rea which, on the evidence, the facts'V'Vioccur_ and*which dirk-fie alleged to constitute the' ,_crime.""" 'AClflieree._._are 'several exceptions to this general rule them are, so far as the present ca5e,...is:._ 'concerfned',x Vilriaiicated in Section 178 of the which "178;"*Pla'(j-e oVj'§.;inq'ai»ry or (a) when it is unceriiain_ in ,which ofTs'e_vérai local areas an offence was comrnitted, or ---
where Voffenice is committed partly in one 'S V. --. «local and partlymin another, or {C} offence is continuing one, and continuesto he committed in more local areas than one, or"
{d} where it consists of several acts done in ""--different local areas, it may be inquired into or tried Joy a court having jurisdiction over any of such local areas. "
REE
12. The crucial question is whether any part of the cause of action arose within the jurisdiction of the court concerned. In terms of Section. 1?? of the Code, it is the place where the offence was committed. In essence it is the cause of action for initiation of the proceedings.Vl'n,l'~\, against the accused.
13. While in civil cases, normal_l_y~Vt.he ' "cause Qf action" is used. in criminal Cases é'f,at€.lci'*-in"
Section 177 of the Code, reference is to the,l,.TI.ocatl' jurisdiction where the oflencel iS:ll"'comm.iited, variations in etymological expressio_ri'd_o not reaiiyvmakie the position different. The expression" of action"
is, therefore, not a stranger tof.criminal
8. He su_b:rriit1'_:Ved' consequence is not part of the offence, Section A:'has"'no'application at all. in this regard, heiirelied jiisdglinient of this Court in the case of OF KARNATAKA, reported in the said case, the editing, printing pubiisliingiioilinieekly had taken place at Bangalore. As was circulated in Udupi, the complaint for ll"l*».l."t:1:il1;eljfierice"jpuriishable under Section 500 {PC was filed in This Court held that mere circulation of the llflpaper at Udupi is not a consequence ensued from the act of Q3}! the accused which forms part of the ingredients of the offence alleged in the case, as no part of the offence ' consequence has ensued within the jurisdiction of . Court; it was hence held that Udupi Cou_rt...h_as to try the said offence.
9. Sri Dinakar pointedly broiifight to"
averments contained in para;:\\.,,._1V'(17) which read as follows:
"ll/(1.7). From "':t;1e5fi_:~ts ..sec:n ifthat itmtuas at this stage that, 5. Tpetition dated 26.12.2C!_t}1 the State of KamataIea« in his and under his own signature. He_'ha_d sent copies of his petition as above also 'to Further, he appeared as 'well the Star ifi"the news Channel making the Xsanie baseless allegations against the comp 3.ainVanVt_;-. .__. . I. Q10. uuThe.'petitioner also read out what the respondent in tiara III (2) at page 7 of his complaint. It reads "IH{2) The complainant is trying to get a certified copy of the said. video version (from the said. TV flifitt channel), which will be submitted at an appropriate time' "
Despite this assertion, the respondent has not prod_1j¢eed;..._'__j' it the said video version for the last 7-8 years_. II. He emphatically denied that copies of the letters to the AaI1ega.t_ito.n the petitioner had apparently Jsent hisipetition is absoluteiy baseless. He also to the editor, correspondent, printeriiéjand newspapers not being arraigne'd""as the complaint; nor are they respondent has not produced the video vefs.ioitiA'cb,fd't1ate"petitioner giving interview to Star TV. video produced, as the petitioner has TV channel.
that the decision regarding Vj;-nVri'sdiction"- be given on the basis of the allegations .::I1r_i_,the'°averments contained in the complaint or the sheet', as the case may be. For canvassing this point, . reltievdttupon the following decisions:
331%
i) 1981 K.L.T 702 I ABHAY LALAN U. YOGENDRA MADHAVLAL i
ii) AIR 1970 Calcutta 110 n BIJOYAND PATNAiK 1;; '5 "' MRS. K.A.A. BRINNAND my A1R1957SCI96 - STATE 0&3 PRADESH. U. KP. GHIARA'. _'
13. As per the Special Order,__:dt,22,_O2..200it local area of Vidhana Soudha within the territorial jurisdiction"of__the;"Vl'H fialrigalore. The petitioner submits" the l.i;espon.ttier1tV_has stated in his complaint at Vidhana Soudha in Bangalore the in New Delhi. Now he cannot contendtl"'that,..'«the has the territorial juIfi'sdi'etioh--,l' as the respondent read the newspapers . containirig. 'e§<:éaracts from the two letters in his l<Sarijaynaga._r residjehce or as the DC? Jayaprakash Naik the eopies of the letters to the respondent in his residence. The petitioner submits that the resnpondelnt has been thus approbating and reprobating. In of his submissions, he has relied on the judgment of fifiifi Hon'ble Supreme Court in the case of NAGUBAI AMMAL onmas v. v.3. SHAMA RAO AND OTHERS, repertjedi';««--irr_ 1956-[SC2)-GJX-0037--SC. The respondent has is blowing hot and cold. The petitionerV-:pre3.ses7_:
Section 115 of the Indian Evidence that the petitioner is estopped frorn ' one 'other explanation for justifying his of;th'e._'cornp1'aintl§in the wrong Court. The respondentis that all the Metropolitan jurisdiction to accept any cornpléiintp" . C" " 'll
14. ju'rri.s[(lir_ction of the Court has to be decided when the corn'plain't in the Court and not when the ,.jiuris'd.ictior1't challenged. He cited the Hon'ble Supreme"-Co1§irt'.s*,:§t;:.dgment in the case of FATMA BIBI :I'¥ATIl§iI.l'."se. fs"i9A'rE OF GUJARAT AND ANOTHER, _'l'§«€pm»ted in" (20081 6 sec 739. The relevant paragraphs of plslaidiijudgmlent are extracted hereinbelow:
5"'2I. This Court, in a. matter like the present one ulflwhere the jufisdicttional issue goes to the root of the C in matter. would not allow injustice to be done to a party. £8}! T he entire proceedings having been initiated illegally and without jurisdiction. all actions taken by the court' were without jurisdiction, and thus are nullities. such a case even the principle of res judicata {wherle'ver_y:V' applicable} would not apply.
23. Where a jurisdictional issue is'"rai£:'ed.'l sa1,-e"'a_,T'ld V except for certain categories of the-casesltthe same' be permitted to be raised atV"i'i».aity stcigg3"'Agd_f:= the proceedings. "
15. The of a case in a criminal c3.s§:"'ie'y_««-:21 law cannot be set into He relied upon the judgment of the __Court. in the ease of PEPSI FOODS v. SPECIAL JUDICIAL 1\&i§GISTFl"Zi'1'{:;.i;Ai'\ll)i()aTI-II£;RS, reported in (1993) 5 sec 749. TheV"i'el€f.fletI'}t:"pt11iéLgl43;}Qh of the said judgment is extracted lvdiirereinbeiowz S S it '.228. Sumrnoning of an accused in a criminal case is matter. Criminal law cannot: be set into S niotion as a matter o course. It is not that the " "complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set i.nto motion. The order of the Magistrate summoning 33%..
the accused must reflect' that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of atlegations made in then complaint and the evidence both oral and documentgiu . i in support thereof and would that be sujficieni for complainant to succeed in bringing charge horne"to-- accused. It is not that the Magisztratefis. la spectator at the time of recordingilI_of*.f§relirntna:ry2 if evidence before summoning of._Ti'I<ie acCu_sed_.V Magistrate has to carefully the"'et:idence brought on record and questions to the complainant and to answers to find out the 4uuthfuiriessiifof" the' or otherwise and" ther:i1iu'e»le_2ccivrrtine§*:_ 'offence is prima facie COTTI}?tilf9(il25§.,i therzccused. "
16. Relying' on tt1.el4lj.ud.gjfjnent of the Hon'b1e Supreme coin; in vtlilelvvcase of RATAN v. STATE 01-' M.P, repo1+ted;"'in »{_2'OGt?']].._ SCC 262 on what constitutes a :5"continufngioffefice-, is-15 submits that a continuing offence is __jt}_::_e4 one which' is susceptible of continuance and is 'tftstiiigrttishabie from the one which is committed once and for the allegations made in the complaint would Ifcotnlstitute a continuing offence is the core question for deterniining the jurisdictional issue. 195%! 16 to another. This aspect of the matter has been over-iooked by the Fast Track Court, which considered and dismissed the petitioners criminal revision petition. The petitioner takes serious exception to the learned C.M.M. holding that hef¥has the jurisdiction and thereafter transferring the matte'1*-- VIII A.C.M.M.
20. Making these submissions, the setting aside of the order, dated 07' {Anne§r;u.re:-J)'_i';oi't the C.M.i\/I. On the private Complaintuuissuigng th'e._Tpr£ocefss, the orders, dated 29.} 1.2006 dismissing the petitioners a_.11dVVtramsferriiigv---t11e-0 case to the Court of VIII A.C.l\/LM. and theV'order,»-- 13.02.2008 (Annexure~«N) passed by Fast Traei::vVCoi.1rt IV. Bangalore city. ..Pger__'contflra,_ Sri Krishna Murthy, the respondent :it"p_arty~in?person that Section 201 of Cr.P.C. is grelpevdant oniybefore the act of taking cognizance of the a Magistrate.
Sri Krishna Murthy submits that even according .1;h€ petitioner, VIII A.C.M.M., before whom the criminal 332% 18 specified by the petitioner in his letters. He submits that the petitioner has made bogus and false claims.
24. He further submits that the plea of jurisdiction is simply a ruse to delay the process of law; it unmerited plea. He submits that the proeessof beingyg abused by the petitioner by filing one:_:after.lthe--.. He submits that he first filtedg quashing the proceedings in (PCR No.2l233/2004) pending' _t1'ie Court of the C.1Vi.M. On 05.04.2005 the"lvvastvdlietated by this Court disrnvvissingglViii:-e.illsaid._:'pe_titi.on on merits; but in the afternoon session, the filed the memo seeking leave ofypthe to {xzithdravv the petition with the liberty to approach' appropriate forum. Accordingly, this Court vdisxnisseti' as Withdrawn reserving the liberty to thegpetitliloner tollapproach the appropriate forum. Thereafter «iftthefjpetitioner filed Criminal Revision Petition No.23}/05 it XXI Addl. City Civil and Sessions Judge. Bangalore it _(C'CIVi-4). The Criminal Revision Petition was dismissed by the learned Sessions Judge on 03.09.2005. The petitioner filed figfi.
Criminal Petition No. 3994/2005 invoking Section 482 of Cr.P.C. This Court rejected the said criminal petitiori_:"bj'}7~.._it.s order, dated 22.11.2005, as it found prirna faciecasdei' the petitioner. The petitioner unsucc_ess._fu11y_"afiproachedothe" Hon'b1e Supreme Court in Special 785/2006. '
25. Sri Krishna 'the"xt)et.itioner has filed w.p.No.525o/2oo,2_jon_ Mallan, the brother of a_ntix':-'\?i«';.P:i\To.667i/ 2002 on behalf of a direction to the concerned a case of murder and a further direct.ion"forx'theAioagirnent. of compensation t.o her and the de'pendents,_the deceased Mumgan, stating that henwas co1d--b1ooded murderer. This Court, by it.s :i"',,,,,%V,pcom"rm$n.'sissy, Cfdat.ed 8.4.2008 dismissed both the writ jta._.pcti.t.ions. . Upetitioner filed W.A.No.760/2008 on behalf of and Malian. The Division Bench, by its order, dated dismissed the said writ appeai. Sri Krishna V "ii/iurthy submits that the matter did not end there; the matter was taken t.o the Hon'b1e Supreme Court in the Specia} Leave 53% Magistrate. there is no scope of the powers and jurisdiction of the Chief Judicial Magistrate, extend throughout the territory of the constricted and confined to a portion of the teerritoryj if that dis trict.
In other words, notwithstanding fact that Chief Judicial Magistrate a" general e. or 'especial order under S.l5[2) read with"t«.S::'I.4 the local limits of the area..qf_jurisdiction eachhfvfagistrate and made rules or as to the distribution of businessg_ai'nong'__Vthe 'Magistrates subordinate hie t1QAlf"?ffi€rCbl;j lose his own jLinsdiction..--tb». t'pou'ersi'vofJudicial Magistrate of the first .icld.s.s';gthroughoiit. That being so, the competent to take cogntéance of .,"c_onimitted anywhere in his district,'Anojtwithstariding.'thefact that the area in which theygljtencelé happens to fall within the of thevvarea assigned by the Chief Judicial .A Magistrate,_"*to_ some other Judicial Magistrate, A si.tbolrdih*a_te tohim, in accordance with the provisions of S3__.'ih4 'l5 Cr.P.C. Of course, taking of such cognizance by the Chief Judicial Magistrate would be possible only y" the complaint or police report, as the may be, is presented in his court instead of being presented in the court of the Judicial Magistrate within if "the local limits of whose jurisdiction the crime might have been committed.
Qfitt of the same status which could be described as if trial by himself. If the expression 'Chief Judicial Magistrate..'[';.r includes in it an Additional Chief Judicial and lilcewise if the term Chief Metropolitan 3 includes an Additional Chief Metropolitan the trial either by the Chief Metropolitan jMagisyti'a_te--.orgA'Vf g one of his Additional amounts to triallby if anomaly seems to be created--_I_5y.. the ending portion~of' Sub--section{5){b}, if the real intentio1i.uof the Leglislature is understood against ba._§kg_roundr»o'f_t'he legljislvative history of this section." -- V l l l '
39. The de~cis«i.o};1 relied Dinakar relate to two different .i different Sessions Districts. tire of two or more different areas or different limits within a metropolitan area or town or "cityp.7'Nohefof the judgments relied upon by forflmthe case on hand Where the C.M.M. Section 16(3) of the Cr.P.C.
r other ground, urged by the petitioner, is the in-filing the complaint. Delay itself is not the ground to I lqti.-ash crime. For what reasons, the respondent delayed thlelvlfiling of the complaint and whether the delay is fatal to prosecution are all to be decided by the Magistrate on the fifiii.
ha I\) passed by the Sessions Court dismissing the petitioner's Crimina} Revision Petition also does not suffer fmm any perversity or infirmity. E answer the question, whi(;ht:'Is-'ijave formulated in paragraph 36 hereinabove, in the gaffirIn_:at.iv'e; _y
46. Where a party has already revision. the same party Cannot be allowed rvtoragitatle same point before the High Court' revision petition under Section as,it«.ywould amount to second revision being barre.d..i_Jy. of Cr.P.C. In this regard, it if_ei"er_ jtoialdecision of the Madhya Pradesh }li._gh~. 'Covurb of MANOJ v. SAVITHA, reported in 2G€)__'3 . The relevant portion of the said decision' is extraieted hereinbelow:
..yThirdIy, this petition for quashrnent of after remaining unsuccessful in the two Courtsibelow, which in fact is a second revision in thelgarb; of application filed u/8.482 of the Code, which not permissible."
553.35 35 this Court can make such orders as may be necessary to give effect to any order under this Code or to prevent ab_us_e~ofV.the process of any Court or otherwise to justice. In the instant case, the mam petitioner is that the C.M.M. hastno:'.Aj1;ii"is(iictioiiof cognizance of the offence a1iege€3:;:"~.,,,._In View iVt1j1e:..;}5fov'isions' V contained in Section 15(3) VantiTtti«1'9g3) etor.tp.o, the contentions urged by the merit. I decline to exercise the inhereiit pCu;t,V€i;t}3 qiia.sh_the'iinpugned orders.
51. In t1ieoV.reiett_tt, E' ctte"it5;i1s:s"'thie"gpet1tion. No order as to costs.
Sd/-4 JUDGE