Karnataka High Court
Sri Prakash Gandhi S/O Late Anuraj ... vs Sri T G Veeraprasad on 13 June, 2012
Equivalent citations: 2013 (3) AKR 437
Author: Jawad Rahim
Bench: Jawad Rahim
1
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF JUNE, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
CRL.A. No. 369 OF 2012
BETWEEN:
SRI PRAKASH GANDHI,
AGED ABOUT 59 YEARS,
S/O LATE ANURAJ GANDHI,
EARLIER RESIDING AT NO.125/1,
SURVEYOR'S STREET,
3RD FLOOR, DVG CROSS ROAD,
BASAVANAGUDI, BANGALORE - 560 004
PRESENTLY RESIDING AT FLAT NO.202,
3RD FLOOR, BRINDAVAN MANSION,
100, BULL TEMPLE ROAD,
BANGALORE - 560 019 ... APPELLANT
(BY SRI M.G.SHREEDHAR, ADV.,)
AND:
1. SRI T.G.VEERAPRASAD,
AGED ABOUT 59 YEARS,
S/O SRI T.G.MALLIKARJUNA SHETTY,
RESIDING AT NO.97, ROAD NO.13-A
BANJARA HILLS,
HYDERABAD - 500 034
2. SAMANTHAPUDI SATYANARAYAN
AGED ABOUT 56 YEARS,
S/O SRI MALLIKARJUNA CHARI,
R/A NO.5-248/12, NH 5,
GANAPAVARAM - 522 619
NADENDLA MANDALAM,
GUNTUR DISTRICT, A.P.,
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3. SRI K.C.H. ANJANEYULU,
AGED ABOUT 58 YEARS,
S/O SRI GURUSWAMY,
NO.9-195-4, MOSQUE STREET,
GNAPAVARAM-522 619
NADENDLA MANDALAM,
GUNTUR DISTRICT, A.P.,
4. SRI L.NARASIMHA RAO,
AGED ABOUT 60 YEARS,
S/O SRI KOTESHWARA RAO,
RESIDING AT NO.18/204,
CHILAKALURI PETA- 522 616
GUNTUR DISTRICT, A.P
5. STATE OF KARNATAKA BY
BIDADI POLICE STATION,
BIDADI, RAMANAGARAM DISTRICT
... RESPONDENTS
***
THIS CRL.A FILED UNDER SECTION 378 CR.P.C TO
SET ASIDE THE JUDGMENT AND ORDER DATED 13.03.2012
PASSED BY THE CJM, RAMANAGARA IN C.C.NO.171/10-
ACQUITTING THE RESPONDENT/ACCUSED FOR THE
OFFENCE P/U/Ss 420, 461, 462, 465 R/W Sec. 120-B OF
IPC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY
THIS COURT MADE THE FOLLOWING:-
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JUDGMENT
Complainant is in appeal under Section 378(4) of Cr.P.C. questioning the order dated 13-03-2012 dismissing PCR No. 195/2008.
2. The appeal under Section 378(4) of Cr.P.C. is filed on the basis that dismissal of complaint amounts to acquittal. The Impugned Order reads:
"'B' report is hereby accepted. The private complaint filed by the Complainant is hereby dismissed."
3. The question therefore, is whether order impugned is an order of acquittal amenable to appeal under Section 378(4) of Cr.P.C.?
4. The factual matrix and contextual facts which needs reference are:
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The appellant Prakash Gandhi, filed complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate for prosecutions of respondents T.G.Veera Prasad, Samanthapudi Satyanarayana, K.C.H.Anjeneyulu and L.Narasimha Rao alleging, they cheated and defrauded him in furtherance of conspiracy they hatched, and thus committed for the offence punishable under Section 420, 461, 462 and 465 read with Section 201 of IPC. In support thereof he alleged they concocted documents in respect of agricultural land bearing Society. No. 81/1, 322/1, 322/2, 322/3, 322/4, 324, 327, 328, 329, 330, 331, 332/1, 332/2, 333, 334/1, 334/2, 334/3, 80/2, 81/2, 235/2, 319/1, 319/2, 320/1, 327, 328 and 330 as if it belongs to them.
5. He categorically alleged he owns land along with his wife Asha Gandhi. The respondent - accused concocted documents setting up ownership, against his and his wife's interest. When he verified the Revenue records, he found the documents were created was result of fraud and cheating.
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6. On presentation of the Complainant the Magistrate referred it to police for investigation exercising power under Section 156(3) of Cr.P.C. The jurisdictional police registered reference in Cr. No. 507/2008 and after carrying investigation submitted a report to the Magistrate disclosing no case was made out to proceed against the accused for the offences referred to above. Such final report was treated as 'B' report and Complainant was asked to respond. The Complainant filed protest memo to the 'B' report requesting Magistrate to reject it and to permit him to proceed with the prosecution.
7. The learned jurisdictional Magistrate rejecting all grounds urged by him by the impugned order rejected his objections and accepted the report of the police, and dropped prosecutions. Consequent to which the learned jurisdictional Magistrate dismissed the Complainant. Assailing it he is in appeal.
8. The contentions of the learned counsel for appellant is the order impugned should be treated as an 6 order acquitting the respondents as the Complaint has been dismissing absolving the respondents of all the charges leveled against them. It is urged as the complaint is dismissed he cannot present fresh complaint for similar action. To gain support to this contention he referred to provisions of Section 300 of Cr.P.C., which reads thus:
"300. Person once convicted or acquitted not to be tried for same offence- (1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub- section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section
220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences 7 had not happened or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses At, 1897 (10 of 1897) or of section 188 of this Code.
Explanation - The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section."
9. Referring to Section 256 of Cr.P.C it is urged, dismissal of complaint amounts to acquittal of the accused as the remedy against such order is only Appeal. 8
10. I have heard at length persuasive arguments of the learned counsel with reference to the provisions indicated above. However, following aspects cannot escape our notice.
11. Acquittal and conviction are judicial orders that could be passed by the courts conferred with the jurisdiction to conduct trial. Order of acquittal or conviction is envisaged only upon trial of the offenders. This has to be distinguished from inquiry. The Code of Criminal Procedure defines what is an inquiry and trial. Inquiry is a stage to preceding trial which could be conducted either by the Magistrate or Investigating Officer or any other person or authorities to whom such direction could be given under Code.
12. In the instant case, it is not in dispute appellant herein had filed a private complaint as permissible under Section 200 of Cr.P.C., which was registered in PCR No.195/2008. Learned jurisdictional Magistrate having received the complaint did not take cognizance to record 9 sworn statement of the Complainant as is provided by section 200 Cr.P.C. He thought fit to refer it to the jurisdictional police for inquiry and report, which is permissible under the provisions of Section 202 of Cr.P.C., which reads thus:
202. Postponement of issue of process -
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made-
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court f Sessions; or
(b) Where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.10
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them an oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant."
13. Therefore, the order passed by the Magistrate referring the complaint for investigation by the police is an order passed under Section 202 of Cr.P.C. In pursuance to the said order of the jurisdictional Magistrate the Police Officer of the jurisdictional Police Station has carried out investigation. Thereafter, he sent 'B' report, the result of his investigation.
14. Thus, the 'B' report submitted by the Police Officer is under Section 202 of Cr.P.C. When such report is received, the Magistrate is required to consider it as envisaged in Section 203 of Cr.P.C., which reads thus: 11
203. Dismissal of complaint-
If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
15. The 'B' report referred to above is undoubtedly a report submitted by the Station House Officer of the jurisdictional Police Station in response to the directions of the learned jurisdictional Magistrate under Section 202 of Cr.P.C. This clarifies the position that so called 'B' report is nothing but a report submitted by Investigating Officer on reference made by the Magistrate under Section 202 of Cr.P.C.
16. Thereafter, the learned jurisdictional Magistrate has called upon the Complainant to respond to the report submitted by the Police Officer. The Complainant filed a protest memo. On examination of both the learned 12 Magistrate has passed the impugned order which is covered by Section 203 of the Cr.P.C. The impugned order shows the learned jurisdictional Magistrate has considered the report of the inquiry by the Police Station and objections raised by the Complainant. Thus the order impugned is undoubtedly an order passed under Section 203 of Cr.P.C. There could be no doubt on this factual position.
17. The next question is at which stage such an order is passed. The order is passed no doubt before taking cognizance.
18. In this regard reference has to be made to the provisions of Section 251 to 255 of Cr.P.C., which deals with trial of summons case by Magistrate Court and rendition of Judgment. Section 255 of Cr.P.C. is relevant for our purpose, which reads thus:
255. Acquittal or conviction-
(1) If the Magistrate, upon taking the evidence referred to in section 254 and such further evidence, if any, as he may, of his own motion, cause to be produced, finds the accused not guilty, he shall record an order of acquittal.13
(2) Where the Magistrate does not proceed in accordance with the provisions of section 325 or section 360, he shall, if he finds the accused guilty, pass sentence upon him according to law.
(3) A Magistrate may, under section 252 or section 255, convict the accused of any offence triable under this Chapter which from the facts admitted or proved he appears to have committed, whatever may be the nature of the complaint or summons, if the Magistrate is satisfied that the accused would not be prejudiced thereby.
19. Therefore, order of acquittal or conviction is contemplated only on trial of offender by the Magistrate conferred with jurisdiction by the Code of Criminal Procedure, 1973, for trial of summons case, warrant case or in sessions trial as the case may be. Undoubtedly, the order permissible under Section 255 of Cr.P.C. is an order convicting or acquitting only on trial following the procedure applicable, as the case may be dependent on the nature of the offence committed. Thus, the order dismissing complaint under Section 203 of Cr.P.C, does not amount to acquittal of the accused. Such an order of dismissal has to 14 be distinguished with order dismissing complaint covered by Section 256 of Cr.P.C., which reads:
256. Non- appearance or death of complainant:
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where 15 the non-appearance of the complainant is due to his death.
20. It is evident from the language of Sections 203 and 256, Cr.P.C. that even though a complaint may be dismissed under Section 203, Cr.P.C., such order will not amount to acquittal of the accused, but if the complaint is dismissed for non-prosecution as envisaged in Section 256, Cr.P.C., it is deemed to be acquittal of the accused only by legal fiction. Therefore, Sections 203 and 256, Cr.P.C. operate in different circumstances.
21. Dismissal of the complaint is permissible under Section 203, Cr.P.C. based on the opinion of the magistrate that the result of enquiry or investigation does not show sufficient ground for proceeding against the accused. While dismissal of the complaint permissible under Section 256, Cr.P.C. is when the complainant after issuance of summons to the accused, on the day appointed for appearance of the accused or on any subsequent date the complainant fails to appear, the magistrate may acquit the accused. Thus acquittal of the accused provided by Section 256, Cr.P.C. is 16 an exception to Section 255 which deals with acquittal or conviction of the accused after trial.
22. Acquittal of the accused envisaged under Section 256, Cr.P.C. is by legal fiction without trial of the accused due to default of the complainant in proceeding with the case. Since Section 256 envisages acquittal of the accused, such order is amenable to appeal but not an order under Section 203 as referred to above.
23. I am, therefore, satisfied that the appeal presented by the complainant under Section 378(4), Cr.P.C. is not maintainable. We have seen that the Parliament by recent amendment to the Code of Criminal Procedure has amended Section 372 in Chapter 29 of the Code, giving statutory right of appeal to the victim against acquittal of the accused or inadequacy of sentence as referred to therein. Such amendment has been provided by inserting the proviso to Section 372 with effect from 30.9.2010. That provision does not differentiate between proceedings initiated on a private complaint or on a police report. Such right is given to the victim which includes the complainant if 17 there is an order of acquittal or an order imposing inadequate sentence. Thus the proviso to Section 372, Cr.P.C. is also not available to the appellant herein. The appeal preferred by him under Section 378(4), Cr.P.C. is thus not competent and consequently this appeal action must fail.
24. However, the appellant may resort to such remedy as is open in law provided under Section 397, Cr.P.C. to question the order of dismissal of the complaint. With this observation, the appeal is disposed of.
SD/-
JUDGE VK/vgh*