Karnataka High Court
A Lobo vs Smt Grace Padma on 11 January, 2013
Author: H N Nagamohan Das
Bench: H.N.Nagamohan Das
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 11th day of January, 2013
Before
THE HON'BLE MR.JUSTICE H.N.NAGAMOHAN DAS
CRL.P.No.4185/2008
C/W
CRL.P.5401/2008, CRL.P.5464/2008
CRL.P.No.4185/2008
BETWEEN:
A.LOBO, MAJOR
S/O LATE BRIG.JJD LOBO
NO.8, FIRST CROSS
LAVELLE ROAD
BANGALORE-560001. ..PETITIONER
(BY SRI B.M.ARUN, ADV.)
AND:
SMT.GRACE PADMA, MAJOR
D/O THE LATE SRI V.JOHN MANICKAM
NO,85, "SUKHALAYA"
BINNY LAYOUT, 1ST D MAIN,
NEAR PIPE LINE, VIJAYANAGAR,
BANGALORE-560040. ..RESPONDENT
(BY SRI M.S.R.PRAKASH, ADV.)
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THIS PETITION FILED U/S 482 OF CR.PC. PRAYING TO SET-
ASIDE THE ORDER DATED 9.6.2008 IN CC.NO.12166/2008
MADE BY THE IV ADDL.CHIEF METROPOLITAN
MAGISTRATE AT BANGALORE.
CRL.P.No.5401/2008
BETWEEN :
1. RT.REV.S.VASANTHA KUMAR
SON OF SUPUTRAPPA
AGED ABOUT 62 YEARS
BISHOP, KARNATAKA CENTRAL DIOCESE
NO.20, III CROSS, CSI COMPOUND
MISSION ROAD
BANGALORE-560027.
2. REV. JOHN MILTON
SON OF M.J.DEVADOSS
AGED ABOUT 54 YEARS
SECRETARY, KARNATAKA CENTRAL DIOCESE
NO.20, III CROSS, CSI COMPOUND
MISSION ROAD
BANGALORE-560027. ..PETITIONERS
(BY SRI B.M.ARUN, ADV.)
AND:
SMT.GRACE PADMA, MAJOR
D/O THE LATE SRI V.JOHN MANICKAM
NO,85, "SUKHALAYA"
BINNY LAYOUT, 1ST D MAIN,
3
NEAR PIPE LINE, VIJAYANAGAR,
BANGALORE-560040.
..RESPONDENT
(BY SRI M.S.R.PRAKASH, ADV.)
THIS PETITION FILED U/S 482 OF CR.PC. PRAYING TO SET-
ASIDE THE ORDER DATED 9.6.2008 IN CC.NO.12166/2008
(PCR No.5975/2008) MADE BY THE IV ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE.
CRL.P.No.5464/2008
BETWEEN
BETWEEN :
1. Mr.JOHN ZACHARAIAH
S/O A.D.ZACHARIAH
AGED ABOUT 48 YEARS
SECRETARY , KARNATAKA CENTRAL DIOCESE
NO.20, III CROSS, CSI COMPOUND
MISSION ROAD
BANGALORE-560027.
2. Mr.S.GURUBHAKTA
SON OF SADANANDAPPA
AGED ABOUT 69 YEARS
RESIDING AT NO.70
TEACHERS COLONY
KORAMANGALA
BANGALORE-560034. ..PETITIONERS
(BY SRI B.M.ARUN, ADV.)
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AND:
Mrs.GRACE PADMA, ADVOCATE
D/O LATE SRI V.JOHN MANICKAM
NO,85, "SUKHALAYA"
BINNY LAYOUT, 1ST D MAIN,
NEAR PIPE LINE, VIJAYANAGAR,
BANGALORE-560040. ..RESPONDENT
(BY SRI M.S.R.PRAKASH, ADV.)
THIS PETITION FILED U/S 482 OF CR.PC. PRAYING TO SET-
ASIDE THE ORDER DATED 9.6.2008 IN CC.NO.12166/2008
(PCR No.5975/2008) MADE BY THE IV ADDL.CHIEF
METROPOLITAN MAGISTRATE AT BANGALORE.
These petitions having been heard and reserved for orders, this
day H.N.Nagamohan Das, J, at Dharwad Circuit Bench
pronounced the following:
ORDER
In these petitions the petitioners have prayed to quash the proceedings in C.C.No.12166/2008 (P.C.R. No. 5975/2008) pending on the file of 4th Additional Chief Metropolitan Magistrate, Bangalore.
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2. Respondent was a teacher in the United Mission School, Bangalore. For certain misconduct committed by the respondent articles of charges were issued, enquiry was held and an order of penalty of dismissal was imposed in the year 1984. Aggrieved by this order of dismissal the respondent filed an appeal before the Educational Appellate Tribunal at Bangalore in E.A.T. No. 5/1984. In the first round the appeal filed by the respondent came to be allowed and reinstatement with consequential benefits was granted. The management questioned the order of the Tribunal before this Court in C.R.P. No. 1417/1994. This Court allowed the revision petition and remanded the matter to the Tribunal for fresh disposal. On remand the Tribunal dismissed the appeal filed by the petitioner and confirmed the order of dismissal. Again in the second round the respondent approached this Court in C.R.P. No. 1376/1997. This Court 6 allowed the revision petition, set aside the order of the Tribunal and remanded the matter to the Tribunal for fresh disposal in accordance with law.
3. When the proceedings were going on before the Tribunal the respondent filed a complaint in P.C.R. No. 5975/2008 against 10 persons. The petitioner in Crl.P. No. 4185/2008 is accused No. 3, petitioners in Crl.P. No. 5464/2008 are accused Nos. 4 and 7 and the petitioners in Crl.P. No. 5401/2008 are the accused Nos. 2 and 6. The jurisdictional Magistrate registered the case, recorded the sworn statement, had taken cognizance and issued summons in C.C. No. 12166/2008 to accused Nos. 2 to 7 and rejected the complaint in respect of other accused. It is brought to my notice that accused No. 5 is dead. Therefore the proceedings 7 before the criminal Court are only pending against these petitioners who are accused Nos. 2, 3, 4, 6 and 7.
3. Heard arguments on both the side and perused the entire petition papers.
4. A perusal of allegations made in the complaint specifies that the petitioners in the objection statement filed by them in M.A.(EAT)5/1984 as per Annexure-A made a false statement with regard to payment of current wages/current salary to the respondent complainant. Further it specifies that in contempt proceedings in C.C.486/1996 petitioners in their reply affidavit made certain false and defamatory statements against respondent complainant without any proof. It is stated that by violating the regulations the petitioners appointed one Mrs.D.Ramila as incharge principal. Further it is stated that by creating false 8 documents, petitioners dismissed the complainant from service. On the face of it the alleged statements made by the petitioners are in the course of proceedings before the Courts in M.A.(EAT) 5/1984 and CC No.486/1996. These allegations if accepted as true the same do not constitute an offence under Sections 406 and 420 IPC.
5. Petitioner no.3 is the Advocate to other petitioners representing them before the court in M.A.(EAT)5/1984 and CC 486/1996. Petitioner no.3 in his capacity as Advocate drafted and filed statement of objections, affidavits and other pleadings on instructions given by his clients. Therefore no criminal proceedings can be initiated against petitioner no.3.
6. It is seen from the record that the jurisdictional Magistrate had taken cognizance of the offence under Section 406 and 420 IPC without following the mandatory 9 requirement under Section 200 Cr.P.C. A perusal of the order sheet of the jurisdictional Magistrate specifies that the sworn statement of respondent complainant or her witnesses was not recorded. Therefore taking cognizance of an offence without recording sworn statement of the complainant is bad in law and on this ground also the petition is liable to be allowed.
7. From the material on record it is seen that several court proceedings had taken place between the respondent/complainant and petitioners/accused. It is also admitted fact that complainant was dismissed from service by the petitioners and the same is the subject matter of appeal in EAT 5/1985. The present criminal proceedings initiated by the complainant is only to intimidate the petitioners and to take revenge against them. This is nothing but abuse of 10 process of law. On this ground also the proceedings before the court below are liable to be quashed.
For the reasons stated above, the following:
ORDER
i) Petitions are hereby allowed.
ii) The proceedings in C.C.No.12166/2008 (PCR No.5975/2008) on the file of IV Addl. Chief Metropolitan Magistrate at Bangalore are hereby quashed.
iii) Ordered accordingly.
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JUDGE Dkb