Karnataka High Court
Dayanand S/O Lingashetteppa vs The State on 2 March, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF MARCH, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200006/2017
Between:
Dayanand S/o Lingashetteppa
Aged about 40 years
Occ: Civil Police Constable
R/o Mangalpet, Bidar
... Petitioner
(By Sri Shivakumar Malipatil, Advocate)
And:
The State
Through New Town Police Station
Bidar
Represented by S.P.P.,
Kalaburagi
... Respondent
(By Sri P.S.Patil, HCGP)
This Criminal Petition is filed under 482 of Cr.P.C.
praying to allow the petition and to quash the proceedings in
C.C.No.465/2015 on the file of Prl. Chief Judicial Magistrate,
Bidar, which is registered for the offences punishable under
Section 304(A) of IPC.
2
This petition is coming on for admission this day, the
Court made the following:-
ORDER
This petition is filed by the petitioner/accused No.5 under Section 482 of Cr.P.C., seeking to quash the proceedings in C.C.No.465/2015 on the file of Prl. Chief Judicial Magistrate, Bidar, registered for the offences punishable under Section 304(A) of IPC.
2. Brief facts leading to filing of the complaint are that, on 29.04.2015 at about 7:30 a.m. petitioner took the deceased Saiprasad who was aged about 15 years along with his son to the Government swimming pool at Bal Bhavan, KHB Colony, Bidar and had left the boy at swimming pool. It is further alleged that accused Nos.1 to 4 were the staff of the swimming pool, it is their duty to supervise and protect the children who came for swimming pool and have to take care and caution. It is further alleged that the deceased while swimming drowned in the water. It is further alleged that the 3 death of the deceased is due to negligence of accused Nos.1 to 5. Therefore, the police have registered a case and after investigation they have filed the charge sheet. Assailing the said, petitioner-accused No.5 is before this Court.
3. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader appearing for respondent-State.
4. The main grounds urged by the learned counsel for the petitioner is that petitioner-accused No.5 has no role when the deceased has drowned into the swimming pool. He has further contended that he has only took the deceased along with his son to the swimming pool, he has left the boy, it is the duty of accused Nos.1 to 4 who have to take care and caution at the time of swimming of the deceased. He would contend that there is no whisper of any allegation against accused-petitioner in the charge sheet material. 4 He would contend that the police have abused the process of law and as such, he prays to quash the proceedings.
5. On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that accused-petitioner has shown the negligence and the police have already registered the case, after investigation they have filed charge sheet against all the accused persons. He has further contended that the power vested under Section 482 cannot be exercised to ascertain the fact as to whether there is negligence on the part of petitioner- accused No.5 is there or not. The said aspect is question of fact. He would further contend that when the investigation is completed and the charge sheet has been filed, the power of the High Court under Section 482 has been seized and it is the Court below which has to consider the facts and take appropriate decision on 5 the basis of material produced before it. To substantiate his contentions he has also relied upon the decision in the case of State of Orissa and Another vs. Saroj Kumar Sahoo reported in 2005(13) SCC page 540. On these grounds, he prays for dismissal of the petition.
6. I have gone through the copy of the FIR, complaint and the charge sheet material, which has been produced along with the petition. Even though the learned counsel for the petitioner would contend that the statement of the witnesses has to be gone through to know that there is abuse of process of law, but no such statements have been produced so as to make a glance of the said statements by this Court. When after investigation, charge sheet has been filed it requires detail scanning of the record.
Be that as it may, I have gone through the material, which has been produced along with petition. The main allegation which has been made in the 6 complaint is that, it is accused Nos.1 to 4 who were negligent, what is the role which has been played by accused No.5 is a question of fact. When all the material is not placed before this Court, under such circumstances, now it cannot be held that there is abuse of process of law by the respondent police. Be that as it may, under what circumstances the inherent power vested with this Court has to exercise under Section 482 of Cr.P.C. has been elaborately discussed in the case referred to supra at para Nos.9 and 10 which is as follows:
"9. In R. P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its 7 face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious 8 in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri) 426. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
9
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no 10 investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for 11 wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. On going through the ratio laid down in the aforesaid decision and keeping in view the above said proposition of law, the power possessed by this Court under Section 482 of Cr.P.C. are very wide and very plenitude of the power requires great caution in its exercise. While exercising such power Court must be careful and it must be based on sound principles. When all the material has not been produced before this Court and whether any role has been played by accused No.5 is a matter, which has to be considered and adjudicated only after full material is looked into. As such, now by this Court the power which has been vested under Section 482 of Cr.P.C. cannot be exercised. However, petitioner-accused No.5 will be having alternative remedy under Section 227 or 239 of Cr.P.C. to file an appropriate application for hearing 12 before the charge and request for discharge of the accused if at all there is no material against him with that liberty, the petition is disposed of.
Sd/-
JUDGE sdu