Karnataka High Court
Smt. Vinutha Nandani vs Sri Narasinhalu S/O Late Narasappa on 23 September, 2020
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 23RD DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE HANCHATE SANJEEVKUMAR
CRIMINAL PETITION NO.200358/2018
Between:
Smt.Vinutha Nandani
W/o Santosh Kumar,
Age 33 years,
R/o House No.L-246,
Nijalingappa Colony,
Raichur.
... Petitioner
(By Sri Sadat Hussain Ustad, Advocate)
And:
1. Sri Narasinhalu S/o Late Narasappa,
Age 71 years, Occ. Agriculture and
Rtd. Govt. Employee,
R/o House No.1-4-373,
SBH Colony, Raichur.
2. State through Manvi P.S
Rep. by its Public Prosecutor,
High Court of Karnataka,
Kalaburagi
... Respondent
(By Sri Arunkumar Amargundappa, Advocate)
2
This Criminal Petition is filed under Section 482 of Code
of Criminal Procedure praying to quash the complaint, FIR
No.422/2015 dated 10.08.2015 registered in Crime
No.215/2015, Charge sheet in C.C.No.181/2016 and further
proceedings against the petitioner in C.C.No.181/2016 of
Manvi P.S which is pending on the file of the Hon'ble JMFC
Court at Manvi.
This petition coming on for admission this day, the Court
made the following:
ORDER
This petition is filed by the petitioner under Section 482 of Code of Criminal Procedure, praying to quash the complaint, FIR No.422/2015 dated 10.08.2015 registered in Crime No.215/2015, Charge sheet in C.C.No.181/2016 and further proceedings against the petitioner in C.C.No.181/2016 of Manvi P.S which is pending on the file of the Hon'ble JMFC Court at Manvi.
2. It is the brief case of allegation as per the private complaint and charge sheet materials that the father of respondent No.1 died on 19.09.1998 and he was the owner of the agricultural land bearing Sy.No.30, measuring 23 acres 30 guntas situated at Hokrani Village, Tq. Manvi, Raichur District. When this being the fact, the 3 accused No.2 had hatched conspiracy with the petitioner and other accused and by showing some other person as father of respondent No.1 and by making such impersonation had got executed General Power of Attorney in favour of accused No.2 and accused Nos.3 and 4 have put their signature and then the petitioner being the accused No.1 had created false and forgery documents and on 08.09.2014, had got mutated and registered her name and thus, in order to engulf the land of respondent No.1-complainant the petitioner and others have made conspiracy and committed the offence of cheating, criminal breach of trust, fabrication of documents and accordingly the respondent No.1 had lodged private complaint under Section 200 of Cr.P.C., then it was ordered for investigation by referring to the Police Inspector as power vested to the learned Magistrate under Section 156(3) of Cr.P.C., then the Investigating Officer after conducting investigation filed charge sheet against the petitioner and other accused for the offences 4 punishable under Sections 465, 467, 471, 419 and 420 of IPC.
3. The counsel for the petitioner submitted that the entire case is based on documentary evidence and it is a Civil nature of dispute and therefore initiation of criminal proceedings is abuse of process of court. Further submitted that when there is transaction registered in the Sub-Registrar Office, therefore prima facie shows the officials transaction is entered in the Sub-Registrar Office and before other competent authorities and the entire dispute is revolving as civil dispute. Therefore, lodging of private complaint and referring the same for the purpose of investigation and filing of charge sheet culminating into making the petitioner to face criminal proceedings is abuse of process of court. Therefore, prays for quashing of the proceedings initiated against the petitioner.
4. Further submitted that the respondent No.1 may make out his remedy before any competent authority 5 Civil Court/proper forum to establish his title but without doing so, initiation of criminal proceedings is abuse of process of court, therefore, prayed for quashment of all criminal proceedings initiated against the petitioner.
5. On the other hand, the learned counsel for respondent No.1 vehemently submitted that father of respondent No.1 is the owner of the agricultural land and he died on 19.09.1998 and thereafter taking disadvantage of the fact of death of the father of respondent No.1, all the accused including the petitioner have made conspiracy to dupe the property of respondent No.1, have created forged and fabricated documents and thus committed cheating and made respondent No.1 to deprive the enjoyment of the land by this illegal means. Therefore, wherever there is element of cheating, fabrication of documents, offence of forgery have been made out as alleged in the complaint and the same is fortified by filing of charge sheet prima facie shows that the petitioner and other accused have committed the alleged offence. Therefore, when there are 6 prima facie and sufficient materials to proceed with criminal proceedings against the petitioner and the other accused by framing charge and proceeding with trial then it does not amount to process of abuse of court. Therefore, prays to dismiss the petition.
6. Before adverting to the issue involved into the present case whether the criminal proceedings initiated against the petitioner is liable to be quashed or not, principle of law laid down by the Hon'ble Apex Court are to be followed and accordingly, I place the principle of law of the Hon'ble Apex Court while exercising the power under Section 482 of Cr.P.C., in the case of Janata Dal vs H.S. Chowdhary and others [(1992) 4 Supreme Court Cases 305] at paragraphs 131 to 136, which are reproduced as under :-
"131. Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex aliquid alicia concedit, conceder videtur id sine quo ipsa, 7 ess uon protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.
132. The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
133. The Judicial Committee in (1) Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18, 22) and (2) Lala Jai Ram Das v. Emperor [(1945) 47 Bomb. LR 634] has taken the view that Section 561-A of the old Code gave no new powers but only provided that those which the Court already inherently possessed should be preserved. This view holds the field till date.
134. This Court in Dr. Raghubir Sharan v. State of Bihar [(1964) 2 SCR 336] had an occasion to examine the extent of inherent power of the High Court and its jurisdiction when to be exercised. Mudholkar, J. speaking for himself and Raghubar Dayal, J. after referring a series of decisions of the Privy Council and of the various High Courts held thus:
"...[E]very High Court as the highest court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice .... Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers ...."8
135. See Talab Hazi Hussain v. Madhukar Purshottam Mondkar and Anr. (1958 SCR 1226) and Pampapathy v. State of Mysore (1966 Supp SCR 477).
136. Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551] that the power in not to be resorted to if there is a specific provision in the Code for the redress of grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam; (2) Khushi Ram v. Hashim (AIR 1959 SC 542; and (3) State of Orissa v. Ram Chander Agarwala [(1979) 2 SCC 305)."
7. Further, the Hon'ble Apex Court in the case of Minu Kumari And another vs State Of Bihar And others [(2006) 4 Supreme Court Cases 359], at paragraphs 19 and 20 has held as under:-
"19. The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of 9 justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide 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. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.
20. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its 10 decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary [(1992) 4 SCC 305], and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1)."
8. Therefore, by applying the principle of law laid down by the Hon'ble Apex Court as above discussed, the present case is considered that respondent No.1 is claiming to be owner of the land inherited through his father and his father died on 19.09.1998. Therefore, when this being the fact, it is made allegation against the petitioner and other accused that all have made conspiracy to each other and created documents like General Power of Attorney and then made transaction as if the petitioner had purchased the said property and thus, in this way the petitioner is beneficiary of the land and 11 other accused have shared money and thus caused deprivation of the enjoyment of the property of respondent No.1.
9. With these allegation of commission of offence of cheating, forgery, fabrication of documents, criminal breach of trust etc., is alleged in the private complaint, then the learned Magistrate had referred the same for the purpose of investigation to the police as per Section 156(3) of Cr.P.C., then after investigation by the police and upon collection of evidences, the Investigating Officer had filed charge sheet against the petitioner and other accused. Therefore, filing of charge sheet itself fortifies the fact of element of offense what are alleged in the private complaint in P.C.No.23/2015. Therefore, when upon perusal of the private complaint in P.C.No.23/2015, these elements are found of offences are committed as prima facie appearing in the complaint.
12
10. Further in order to ascertain the truth involved into the private complaint, when the said complaint is referred for investigation to the police as the learned Magistrate is vested with power under Section 156(3) of Cr.P.C, then upon registration of crime and started investigation and during the course of investigation the Investigating Officer had collected the materials and filed charge sheet. Therefore, filing of charge sheet prima facie fortifies that offences are made out as stated in the complaint and therefore, there are sufficient materials available to proceed with the case in criminal trial. Therefore, when this being the fact the criminal proceedings cannot be quashed as it does not amount to abuse of process of court. Therefore, the inherent power of this court under Section 482 of Cr.P.C cannot be exercised to stifle the legitimate criminal proceedings initiated based on the complaint when prima facie case is revealed so as to proceed with the accused. Therefore, when this being the fact emerged from the perusal of the 13 materials available at this stage, I do not see any abuse of process of court as in the complaint, it is revealed the offences are made out and when the said case is referred for investigation and the Investigation Officer had filed charge sheet, therefore there are sufficient materials to go on with the petitioner and other accused by making them to face trial. Therefore, under these circumstances, it cannot be said that there is abuse of process of court and hence the petition filed under Section 482 of Cr.P.C is found to be devoid of merits and it is liable to be dismissed. Accordingly dismissed.
Sd/-
JUDGE sn