Karnataka High Court
Sandra vs The State Of Karnataka on 17 December, 2020
Author: K.Somashekar
Bench: K.Somashekar
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R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
CRIMINAL PETITION NO. 5364 OF 2016
CONNECTED WITH
CRIMINAL PETITION NO. 9390 OF 2016
CRL.P.5364/2016
BETWEEN
1. Sandra
S/o Robert Hoover
Aged abot 39 years
R/at No.661, Chethan Enclave
23rd Main, Rajarajeshwarinagara
Bengaluru - 560098.
2. S Albert Philips
S/o Dr. M.R. Shreedhar
Aged about 55 years
R/at No.GF-2, No.661
Chethan Enclave
23rd Main, Rajarajeshwarinagara
Bengaluru - 560098.
3. Robert Hoover
S/o Late James Hoover
Aged about 62 years
R/at No.GF-3, No.661
Chethan Enclave
23rd Main, Rajarajeshwarinagara
Bengaluru - 560098.
4. Smt. Myagi @ Meri Margerate Hoover
W/o Robert Hoover
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Aged about 54 years
R/at No.GF-3, No.661
Chethan Enclave
23rd Main, Rajarajeshwarinagara
Bengaluru - 560098.
... Petitioners
(By Sri. Rudrappa, Advocate)
AND
1. The State of Karnataka
Thilakanagara Police
Represented by its S.P.P.
Karnataka High Court Building
High Court, Bengaluru - 01.
2. Sri. Hanumantharayappa
S/o Late Rayappa
Aged about 70 years
R/at No.18, 2nd Cross
1st Main, Basaveshwara Nagar
Bangalore - 560 071.
... Respondents
(By Smt. Rashmi Jadhav - HCGP for R-1;
Sri. K N Subba Reddy - Advocate for R-2)
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to quash the
entire proceedings in C.C.No.4698/2014 pending on the
file of I-ACMM, Bangalore for the offence punishable
under Sections 468, 471, 441, 420, 120(B) r/w 149 of
IPC.
CRL.P.9390/2016
BETWEEN
1. Mr. Amjad Basha
S/o Late Abdul Rasool
Aged about 68 years
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R/at No.56, 2nd Cross
8th Main, Roshan Colony
Tilak Nagar
Bangalore - 560 041.
2. Mr. Imran Basha
S/o Amjad Basha
Aged about 35 years
R/at B-3, 206 Puruvankara Apartment
J.P. Nagar, 7th Stage
Opp. RBI Layout
Bangalore - 560078.
... Petitioners
(By Sri. Dharmapal, Advocate)
AND
1. State by Tilaknagar Police
Tilak Nagar
Bangalore - 560 041.
2. State by the Inspector of Police
C.C.B.F & M squad
N.T. Pet, Bangalore - 560002.
3. Mr. Hanumantharayappa
S/o Late Rayappa
Aged about 70 years
R/at No.18, 2nd Cross
1st Main, Basaveshwara Nagar
Bangalore - 560 071.
... Respondents
(By Smt. Rashmi Jadhav - HCGP for R-1 and R-2;
Sri. K N Subba Reddy - Advocate for R-3)
This Criminal Petition is filed under Section 482 of
the Code of Criminal Procedure, praying to set aside the
order dated 26.02.2014 passed by the I-ACMM, Bangalore
for the offence punishable under Sections 468, 471, 441,
:4:
420, 120(B) r/w 149 of IPC against the petitioners
(Accused No.7 and 9) in C.C.No.4698/2014 and quash the
entire proceedings of the charge sheet filed in
Cr.No.25/2011 on the file of I-ACMM, Bangalore against
the petitioners only.
These Criminal Petitions coming on for Admission,
this day, the court made the following:
COMMON ORDER
Crl.P.No.5364/2016 is filed by petitioners who are arraigned as Accused Nos.1 to 4 and Crl.P.No.9390/2016 is filed by the petitioners who are arraigned as Accused Nos.7 and 9 in C.C.No.4698/2014 which is pending before the Court of II ACMM at Bangalore arising out of Crime No.25/2011 for the offences punishable under Sections 120B, 420, 441, 468, 471 r/w 149 of IPC.
2. Though these petitions are listed for admission, with the consent of learned counsel for the petitioners and so also, learned HCGP for respondent - State, the matter is taken up for final disposal. But keeping in view the scope of Section 301 of Cr.P.C., there is a limited extent of the counsel for the defacto complainant. But the said counsel has to assist to learned HCGP but not :5: independently. Consequently, heard the arguments advanced by learned HCGP in both these petitions.
3. It is transpired in the case of the prosecution that the case in Crime No.25/2011 came to be registered by Tilaknagar Police for the offences punishable under Sections 120B, 420, 441, 471 of IPC based upon the complaint filed by one Hanumantha Rayappa. It is alleged in the complaint that Smt.Susheela and Smt.Pramila, daughters of late M.J.Rajanna, are the relatives of the complainant and they are the owners of a residential property bearing No.1151, new No.10, 4th T Block, Jayanagar, Bangalore and the khata of the said property was inherited by their father late Rajanna by virtue of release deed executed on 03.09.1979 by their brothers and sisters in their favour. Such being the case, Mary Sridhar, Mary Margarate and Albert Philip who are arraigned as Accused Nos.6, 4 and 2 respectively had filed a suit in O.S.No.6248/2005 before the City Civil Court at Bangalore seeking decree of partition of 1/8th share over the said property claiming that said Mary Sridhar is the wife of late M.R.Sridhar and others are their children. The :6: said M.R.Sridhar is said to be brother of Susheela and Pramila. The suit is pending for consideration. These are all the facts grounded in this petition seeking intervention of this Court.
4. Subsequent to registration of crime, the case came to be transferred to the Inspector of Police, CCB. The investigating agency thoroughly investigated the case and laid the charge sheet in C.C.No.4698/2014 against the petitioners/accused persons for the aforesaid offences. Hence, these petitions for quashing of the proceedings initiated against the petitioners.
5. In support of his contention, Sri Rudrappa, learned counsel for the petitioners in Crl.P.No.5364/2016 has placed reliance of the Hon'ble Supreme Court reported in Criminal Appeal No.73/2007 (A.C.Narayanan vs. State of Maharasthra & another) where the issues relating to power of attorney is dealt with. In the instant case, the complaint is filed by the complainant though he is a defacto complainant but no court shall take cognizance of any offence lugged against the accused. But in this citation, the Hon'ble Apex Court has addressed the issues :7: relating to the offence under Section 138 of the N.I.Act. But in the instant case, based upon the complaint filed by the defacto complainant, the case in crime No.25/2011 came to be registered for the aforesaid offences which are reflected in the FIR. Therefore, this decision is contrary to the facts of the instant case.
6. Sri Rudrappa, learned counsel for the petitioners in Crl.P.5364/2016 has also produced the order passed by this Court in Crl.P.No.2309/2016 to contend that the power of attorney was executed for due consideration. Therefore, it is settled law that when a Power of Attorney is executed for consideration, it remains irrevocable and even the death of the accused would not efface the power and authority assigned to the power of attorney holder. A reference has been made in the case of A.C.Narayanan vs. State of Maharashtra and another (2014) 11 SCC 790. The law has been laid down to that effect. But this reliance is also relating to Power of Attorney when the offences punishable under Section 138 of N.I.Act. Therefore, this reliance is not squarely applicable to the given facts and circumstances of the case.
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7. Sri Dharmapal, learned counsel for the petitioners in Crl.P.No.9390/2016 would submit that there are no materials in the charge sheet filed by the respondent police against the petitioners and the allegations made in the complaint are false and baseless allegations. There is no direct acknowledgement of the guilt against these accused that they also participated with the other accused in committing the alleged offences such as criminal conspiracy, fraud and cheating. He contends that filing of charge sheet against the petitioners and its continuation is sheer abuse of process of law. On this premise seeking for intervention in this petition by quashing the criminal proceedings, if not, certainly there shall be miscarriage of justice to the gravamen of accused and so also, abuse of process of law. These are all the contentions as taken by the learned counsel for the petitioners seeking intervention of this Court.
8. Learned HCGP for the State has taken me through the materials which secured by the IO during the course of the investigation relating to the case in Crime No.25/2011 registered by the Tilak Nagar Police Station :9: for the offences punishable under Section 468, 471, 441, 420, 120(B) r/w 149 of IPC. During the course of investigation the IO has secured material documents and also recorded the statement of witnesses and thereafter laid the charge sheet against the accused persons. Learned HCGP mainly refers to the statement of one Syed Ibrahim s/o late Abdul Sattar that one C.N.Aseeb of Munireddy Palya was acquainted to him. Through him he got acquainted with Amjad Basha/Accused No.7. He is resident of Frazer Town. Thereafter they were acquainted with one Mazar Pasha. There was some financial dispute between them. Consequently, there was a complaint registered before the Bharati Nagar Police Station. It is specifically stated in his complaint that Amjad Basha that the property which was registered in the name of one Mazar Pasha and thereafter the same property was sold to one Abdulla Siddique by Amjad Basha, his son Ibrahim Basha and Nadeem Akthar for a sale consideration of Rs.1,55,00,000/- on the pretext of the said amount to Mazar Pasha. These are all the facts as narrated by one Syed Ibrahim. However, the dispute even though is civil : 10 : in nature is involved but it has been turned into criminal in nature to file a complaint by the defacto complainant. Based upon the complaint, the case in Crime No.25/2011 came to be registered and thereafter, the case has been taken up for investigation by the CCB and thoroughly investigated the case and the charge sheet came to be laid against the accused in C.C.No.4698/2014. The IO has recorded the statement of CW.1 - Hanumantharaya, CW.2
- M.R.Susheela, CW.3 M.R.Pramila and CW.4 - Vijayendra Reddy and other witnesses in all CWs.1 to 9. When these witnesses are subjected to test before the trial Court then only the truth will come out and also the same has to be appreciated by the trial Court, but now it cannot be considered whether there are any acknowledgment of guilt that finds place in the FIR and also substance of the charge sheet laid by the IO, unless examined witnesses. Only on the premise that there are no sufficient materials against the accused persons and so also, there is a suit pending between the parties, on that ground seeking for quashing of the criminal proceedings initiated against the accused persons does not arise without any justifiable : 11 : reasons. On these grounds, learned HCGP for the State seeking for dismissal of these petitions.
9. It is in this context, it is relevant to refer Section 154 of Cr.P.C. which reads as under:
154. Information in cognizable cases.
(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read Over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf .
(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant.
(3) Any person aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in subsection (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.: 12 :
10. When once the written complaint or even a oral complaint filed by the complaint, it is the domain vested with the Station House Officer to register the crime by recording the FIR. Subsequent to recording the FIR, it is the domain vested with the investigating agency as under
Section 173(2) of Cr.P.C. which reads as thus:
173. Report of police officer on completion of investigation.
(1) ......
(2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be acquainted with the circumstances of the case;
(d) whether any offence appears to have been committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody under section 170.: 13 :
(ii) The officer shall also communicate, In such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given.
11. Subsequent to the completion of the investigation done by the investigating agency and following all requirements of Section 173(2) akin to 170 of Cr.P.C. laying of the charge sheet against the accused before the Court having jurisdiction whereby the accused have to facing of trial. But in the instant case, the case in Crime No.25/2011 came to be registered by the Tilak Nagar Police based upon the complaint filed by one Hanumantha Rayappa who is the relative of Smt.Susheela and Pramila who are the daughters of one late Rajanna and these two ladies are said to be the owners of property bearing No.1151, New No.10, 4th T Block, Jayanagar, Bangalore and the khatha of the said property was inherited by their father late Rajanna and by virtue of release deed executed by their brothers and sisters in their favour. The accused namely Mary Sridhar, Mary : 14 : Margarate and Albert Philip who are arraigned as Accused Nos.6, 4 and 2 respectively have filed false and frivolous suit in O.S.No.6248/2005 before the City Civil Court at Bangalore city for decree of partition of 1/8th share over the said property.
12. It is further seen in the materials which secured by the IO during the course of the investigation that the aforesaid accused Nos.2, 4 and 6 had received a sum of Rs.1,50,00,000/- as sale consideration from one Mazhar Pasha - Accused No.5. This accused is also part of the criminal conspiracy in the entire transaction and had designed the entire conspiracy with Mary Sridhar and her two children. After registration of the crime against the accused the case was transferred to the Inspector of Police, CCB who thoroughly investigated the case by recording the statement of witnesses. But however, the accused are required to be facing of trial. The statement of witnesses have to be subjected to test in accordance with the provisions of the Indian Evidence Act. Mere because the suit in O.S.No.6248/2005 is pending between : 15 : the parties, it cannot be a ground for seeking intervention for quashing of the entire criminal proceedings.
13. However, the inherent power vested with this Court under Section 482 of Cr.P.C. should be exercised judiciously, judicially, cautiously and sparingly though it would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would be sustained. Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself; Monica Kumar vs. State of Uttar Pradesh, (2008) 8 SCC 781.
14. It is well-settled that the inherent powers under Section 482 can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind there will be no inconsistency between Sections 397(2) and 482 of this : 16 : Code; Basudev Bhoi v. Bipadabhanjan Puhan, (1997) 2 Crimes 331 (Ori). To prevent abuse of the process of the court, High court in exercise of the inherent powers under Section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive; Dhanalakshmi vs. R.Prasana Kumar, (1990) Crl.LJ 320 equivalent to AIR 1990 SC 494.
15. In the instant case, though the civil in nature of the case was adjudicated in the year 2005 in respect of the properties depicted therein but subsequent to filing of the complaint by the complainant the crime came to be registered in Crime No.25/2011 for the offences reflected in the FIR. Subsequently, the IO has taken up the case for investigation and thoroughly investigated the case and charge sheet has been laid where the accused are required to be facing of trial, if not, certainly there shall be miscarriage of justice to the gravamen of the complainant. Consequently, said that there is no substance in the contention made by the learned counsel for the petitioners : 17 : respectively in these petitions for interference of this Court to exercise the power under Section 482 of Cr.P.C.
In terms of the aforesaid reasons, I proceed to pass the following:
ORDER Crl.P.No.9390/2016 and Crl.P.No.5364/2016 filed by the petitioners under Section 482 of Cr.P.C. are hereby dismissed.
Whatever observations made in this order, it shall not influence the mind of the trial Court and the matter shall be disposed on merits in accordance with law.
Sd/-
JUDGE DKB