Karnataka High Court
Dr Navanath V Kalyane vs Mahesh on 6 December, 2021
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION No.22632/2018 (GM-RES)
BETWEEN:
1. DR. NAVANATH V. KALYANE
S/O VISHWANATHAPPA KALYANE
AGED ABOUT 57 YEARS,
WORKING AS PRINCIPAL BLDE ASSOCIATE'S
COLLEGE OF PHARMACEUTICS
VIJAYAPURA
ALSO R/AT NANDKAMALA NIVAS
1ST FLOOR, MALLIKARJUN NAGAR
ASHRAM ROAD
VIJAYPUR-586103
2. DR. CHANDRASHEKAR C. PATIL
S/O CHANNAPPAGOUDA PATIL
AGED ABOUT 49 YEARS
WORKING AS PROFESSOR AND
HEAD OF THE DEPARTMENT PHARMACEUTICS
BLDE ASSOCIATE'S
COLLEGE OF PHARMACEUTICS
ALSO R/AT PLOT NO.25
SIDHASANNIDHI
BEHIND KHB COLONY
SOLAPUR ROAD,
VIJAYAPURA-586103
3. DR. RAGHAVENDRA V. KULKARNI
S/O VINAYAKARAO
AGED ABOUT 41 YEARS
VICE PRINCIPAL
BLDE ASSOCIATIONS
2
COLLEGE OF PHARMACY
VIJAYAPUR
ALSO R/AT NO.53C,
SUKOON LAYOUT,
SOLAPUR ROAD,
VIJAYAPUR-586103
... PETITIONERS
(BY SRI R.V.NADAGOUDA, ADVOCATE)
AND:
MAHESH S/O SHIVALINGAPPA BIDRI
AGED ABOUT 54 YEARS,
R/O KALLYAN NAGAR
OPPOSITE TO BLDE HOSPITAL
VIJAYAPURA-586103
... RESPONDENT
(BY SRI S.S.MAMADAPUR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227, OF THE CONSTITUTION OF INDIA AND UNDER
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE COMPLAINT
IN PCR NO.126/2017 DATED 20.3.2017 REGISTERED ON
20.3.2017 FILED BY RESPONDENT BEFORE THE 4TH ADDL.
MAGISTRATE, FIRST CLASS AT VIJAYAPURA IN
C.C.NO.6294/2017 [ANNEXURE-A] QUASH THE ORDER DATED
29.11.2017 IN PCR NO.126/2017 PASSED BY THE 4TH ADDL.
MAGISTRATE, FIRST CLASS AT VIJAYAPURA AS HIGHLY
ARBITRARY ILLEGAL AND CONTRARY TO LAW [ANNEXURE-B]
AND ETC.,
THIS PETITION COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
This petition is filed under section 482 of Cr.P.C., praying this Court to quash the complaint in PCR No.126/2017 dated 20.03.2017 filed by respondent before the IV-Additional Magistrate, First Class at Vijayapura in C.C.No.6294/2017.
2. Heard the learned counsel appearing for the petitioners and the learned counsel for the respondent.
3. The factual matrix of the case is that the respondent herein has filed a private complaint before the learned Magistrate which is numbered as PCR No.126/2017 and after taking cognizance the same is numbered as C.C.No.6294/2017. The respondent made an allegation that accused Nos.1 to 3 are working in the BLDE Pharmacy college and these petitioners were well aware about the notification issued by the Ragiv Gandhi University of Health Sciences (for short 'RGUHS'), Bengaluru in No.ACA/AFF-GEN/2005-06 and the person 4 who is recognized as guide for PG and Ph.D courses in RGUHS, Bengaluru cannot become a guide in other University of our country for any course. In violation of the said notification, these petitioners even though they are having knowledge about the same, they are guiding the students, they did not maintain professional ethics and clearly violated the norms of the University. Hence, it is contended in the complaint that the students are innocent and they believed and trusted the institution and teaching faculty. With an intention to make wrongful gain by mischief, cheating, misbehavior, these petitioners teaching the students and hence, the learned Magistrate invoked sections 406, 408, 426 read with section 34 of IPC. The learned Magistrate after receiving the complaint posted the matter for enquiry and recorded the statements of complainant and got marked documents Ex.C1 to C8. Thereafter, vide order dated 29.11.2017 considering the statement of complainant and also considering the documents Ex.C1 to C8 and also the evidence of CW.2 came to the conclusion that the accused persons have 5 joined the other institutions for teaching intentionally to get wrongful gain and they have done mischief, cheating, breach of trust to the students and hence, issued the process. Hence, the present petition is filed before this Court by the accused.
4. The learned counsel appearing for the petitioners would contend that first of all the complainant/respondent has no locus standi to file private complaint and if there is any violation of the notification issued by the University, the University can only take action against the petitioners herein. The learned counsel would submit that University has taken decision with regard to violation of the notification and the University has barred the petitioners for a period of three years in discharging of their duties of the guide in terms of Annexure-L. The learned counsel would also submit that such order has been challenged before this Court and stay has been granted in W.P.Nos.38281-83/2016. When such 6 being the case, these petitioners cannot initiate other proceedings.
5. The learned counsel appearing for the respondent would submit that the allegation made in the complaint is nothing but criminal breach of trust and cheating. These petitioners being the lecturers of very same institution having interested in college as well as in teaching, a citizen can proceed with the matter. The learned counsel in support of his contention with regard to locus standi is concerned, relied upon the judgment of the Hon'ble Apex Court in the case of Subramanian Swamy vs. Manmohan Singh and Another reported in 2012 (3) SCC 64 and brought to the notice of this Court there is no restriction on the private citizen to file a private complaint against a public servant. The Court is also not barred from taking cognizance of offence by relying on the incriminating material collected by private citizen. Locus standi of a private citizen is therefore not excluded. Private citizen's right to file complaint against public servant and to obtain sanction for prosecuting public servant flows 7 from rule of law. Access to justice is hallmark of Indian constitutional scheme. Freedom of a private citizen to proceed against a corrupt public servant cannot therefore be restricted. The learned counsel brought to the notice of this Court paragraph Nos.27 and 28 wherein also discussed with regard to locus standi and also held that there is no bar under Code of Criminal Procedure as well as in the Prevention of Corruption Act. Hence, the petitioners cannot contend that respondent is not having locus standi to file a private complaint. The learned counsel also submits with regard to merits is concerned inspite of having knowledge of the Notification issued by the University, they are doing guideship in respect of other University and hence, no case is made out to invoke section 482 of Cr.P.C.
6. Having heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent and on perusal of the material on record, it is clear that a private complaint is filed against these 8 petitioners in P.C.No.126/2016 and an allegation is made that these petitioners are discharging guideship in respect of other than the University in which they were working and hence, the same is mischief, cheating, breach of trust, mis-behaviour and negligence of their duty. When such being the facts and circumstances of the case, respondent invoked sections 406, 408, 426 read with section 34 of IPC. No doubt, the Hon'ble Apex Court in the judgment referred supra held that a private citizen can also file a complaint in the such allegation is of corruption is made and having invoked the Prevention of Corruption Act and also Court has to look into the very allegation made in the complaint. In the present case on hand, an allegation is made that these petitioners are against the University Notification and rules and regulations working as guide other than the University. It is also admitted fact that University also taken decision suspending their guideship for a period of three years vide Annexure-L. Learned counsel for the petitioners does not dispute the same and it is also the fact that these petitioners have approached 9 this Court by filing W.P.Nos.38281-83/2018 and an interim order has been passed, when such being the case when already University has taken the decision with regard to violation of Notification and suspended them from guideship and these petitioners were also working as lecturers and the complainant has dismissed employees of the said Institution, initiated the private complaint and dismissal order was passed subsequent to filing of the private complaint.
7. Having taken note of the factual aspects of the case and also gravity of the offence and allegation is in violation of University Notification they are working as guides, when such being the case the very offence under sections 426 and 408 regarding criminal breach of trust in respect of these petitioners is concerned, does not arise. The University has to invoke criminal prosecution against the petitioners herein, if any such criminal breach of trust is there against the employees of the University and these petitioners are not employees and question of breach of 10 trust does not arise. Having taken note of the gravity of the offence and principles laid down in the judgment referred above, the same is not applicable to the facts of the case on hand. First of all there is no corrupt practice and also the very initiation of criminal proceedings by the other colleague of the very same institution and apart from that the respondent is also dismissed from the service when such being the factual aspects of the case and taking into note of the allegation made in the complaint, first of all he is not having any locus standi apart from ingredients of the offence under sections 406 and 408 of IPC does not attract in respect of these petitioners. I do not find any force in the contention of the respondent's counsel. If this Court fails to exercise power under section 482 of Cr.P.C., it would lead to miscarriage of justice and amounts to an abuse of process entertaining the other colleague initiating criminal prosecution against the other colleagues who are working in the very same institution contending that there was a violation of University Notification. 11
8. In view of the observations made above, I pass the following:
ORDER The petition is allowed.
The order passed in PCR No.126/2017 dated 29.11.2017 taking cognizance by the JMFC-IV Court, Vijayapura is hereby quashed.
In view of disposal of the main petition, I.A.No.1/2021 filed for additional documents does not survive for consideration and accordingly, it is disposed of.
Sd/-
JUDGE VNR