Karnataka High Court
Selvi J Jayalalithaa vs State Rep By The Superintendent Of ... on 10 March, 2010
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF MARCH 2010
BEFORE
THE HONBLE MR. JUSTICE KN. KESHAvAEAEAY;E3JA .
CRIMINAL PETITION NO,7*9/201O'A/EL . 1' .
MISC.CRL.731;/2O1"0 A "
BETWEEN:
SELVI J. JAYALALITHAA
AGED 61 YEARS
"VEDA NILAYAM"
81. POES GARDEN _ _
CHENNAL 600086. ""~v,..'.~~v.1eiE'Tr*1T1ONER IN
3 _'~«..;ORL;p:1xIO.79/2010AND
~ /»LPPL1CAl\I_T'IN M.:vSc.cRL.731 /2010
[By 'EAO, SENIOR COUNSEL FOR
SRI.A.1\}AVANEl£'THA' ADV.]
AND:
S'I'A'3{'Ei E,EpRE'S.ENTED BY
= _TH'E'«:SIg1?ERINTE'ND-Em' OF POLICE,
V Dy & AC, CHENNAI
L RESPONDENT
IN BOTH CRL.}?'.NO.79/2010 AND MISC.CRL.731/2010 {By 4SR1";B.\}fAcHARYA, SENIOR COUNSEL FOR SRI.S.Jv..CHAUTA, ADV.) V QTHIS CRL.P IS FILED U/S482 CR.P.C PRAYING TO THE ORDER DATED 5.6.1997 AND THE F":
CONSEQUENT TRIAL PROCEEDINGS __ IN SPL.C.C.NO.208/2004 ON THE FILE OF THE SPECIAL XXXVI ADDL. CITY CIVIL AND SESSIONS _xJtJ-DO-.13, BANGALORE. 4' » ' S- V " .
THIS MISC.CRL.731/2010 IS FILED UNDER SECTION _ 482 OF CR.P.C. PRAYING TOWSTAY PROCEEDINGS IN SPL.C.C.NO.208/20%-ICON TH.EvE'I.LE"OF¥ THE SPECIAL XXXVI ADDL. CITY CIVIL AND. SESSIQIVS' JUDGE, BANGALORE. V RESERVED ON : 19.2.2010'~v._':"'~V.VS PRONOUNCED ON: 10.3.2010 THIS PETITION ' wI*1'II_'»..I£2IISC.CRL. 73 1 /2010 HAVING BEEN HEARD AND RES'ERVEDj;...COMING ON FOR PRONOUNCEMENT OF_..ORDER THIS. BAY, THE COURT PRONOUNCED fs:I1I»IE'EOI,LOwfIIxIG':«~.,"_«.._V ' 1"i.1.e'd'11'riti'er";§SeCtiOn 482 of Cr.P.C., the pe-titiotnervj H has been arraigned as accused inV'&}peCi'a1..."-C.C.N0.208/2004 on the file of Adtift1O.n.a£ City Civil and Sessions Judge, '-Sought for quashing the Said Criminal pf0CeediDgtS"I.V}E:unChed against her.
A. 2.'""'1s'he brief facts leading to the presentation of _ thiS petition are as under;
{i) During 1991 to 1996, the petitioner herein was the Chief Minister of Tamil Nadu. However dnringjlithe general election held to the State Legislaturejllfisseinbfiyll' . of Tamil Nadu, in 1995, the hipalfty t1ea'ded.fby'_'t.theV '" A petitioner, namely AIADMK was party was Voted to power. ' _'I'h.ereafter, se\?eral__"eriniina1 " V cases were registered__against..£};g 'p.eAtitioner.Aherein and others for various been committed by her during lieif._ten:nre' of the State. One such; ¢.cc.Nol.7/97. The State Spe.oialfl:Court for the trial of the caxseg . the petitioner and others. Challenge the~f)eti'tioner herein to thegconstitution of carnefyto be dismissed by the Hon'ble I t--Supre'1n:e*«»C'ourt if {iilhilnlspecial C.C.No.7/9'7, the petitioner herein A with three other accused persons arraigned as accused Nos.2 to 4 were charge sheeted for the offences 4 punishable under Sections l20~B of IPC r/W Sections 13(2) and l3(l](e] of the Prevention of Corruption Act [for short the 'PC Act']; independently for the offence punishable under Section 13(2) r/W the PC Act and also for the offence , Section 109 of IPC r/w Sections PC Act. The petitioner' independently, committed under Sections 13(2) and and along with accused Nos.2 to jpetitioner»_ isnalleged to have l1I1d€l' Section 120-13 of IPC r/ivSections".SiV3_(2}..:aiacl*' l3(l)(e] of the PC Act, while the other pfersosns (accused Nos.2 to 4) alleged 'S V' to fiiave"icotnrnitte<V:i"the offence punishable under Section 109' rt/.wISection 13(2) and l3{1)(e] of the PC Act. {iii} 5.6.1997 the Special Judge before whom charge sheet came to be laid, in exercise of his ._ . 'bf? 3...
'powers under Section l90[l]§' of the Code of Criminal 5 Procedure (for short ' the Code') took cognizance of the offences alleged and directed issue of summons to the petitioner herein as also to the other accused "pei-'sfons.. Upon service of summons, the petitioner and the.lotlhee.r' "
accused persons appeared before Judge. After hearing, the charges for the offences punishable un.r_:l_e"r' Jl20-- 0' B of mo r/W PC Act against accused Nos.Hl_'l'to :lfo:p..,lv.offenee punishable under sectioniijpsm 'ii/gwfivS'ectio:n':--V'l"3{--1:l[e] of the PC Act againstlthe laccused No.1); and for the offence'punishable 1li.'1'ia:ler.-Siection 109 IPC r/w Section 13[2}--r/gw of the PC Act against accused ll 0. 0'-Nos'-.§ to 4} All thlemaccused persons pleaded not guilty against them and claimed to be tried. ,___"'Thereafter the trial in Special C.C.No.7/97 ]progressed and by April 2000, about 250 prosecution 'witnesses were examined leaving only about 10 more "'witnesses to be examined. However in the general %/ 6 election held in May 2001, the party headed by the petitioner herein secured an absolute majority State Legislative Assembly and the petitioner unanimously chosen as the leader of the the i elected members of the party and accordingly the petitioners sw'oii:l as; the > Chief Minister of the State _j#pplj§intI1'1€I'1t of the petitioner as to be challenged before the Supreme was nullified. inflthe j§ye:§e1eh¢Li¢'iiii held to Andipatti constitiiency;v5.QnEll.fZl2QO2, thlevpetitioner was declared elected and she_y'v'ajs_agai'la. sworn in as Chief Minister of Tamil d Naauf oh i"i.2i.'3I2002. Thereafter several .V."'-dyer/eloprnei';ts toolillllplace in relation to the trial in 97 wherein 76 witnesses who had already__v'beefnA examined earlier were recalled for further .""'--.V"crropss "examination and during the further cross 'exarriination, they appear to have resiled from their
-*-earlier evidence and in spite of the same there was no attempt on the part of the Public Prosecutor to declare them hostile and to cross examine those witnesseS~«.._ 'in the light of those developments, petitions'1---Were:i:"iiled.--u.A * before the Supreme Court undereSe.ction'Sélfitiof if seeking transfer of Special C.C.No.2/2001 which Wer€_:Vpf;ndlI1g.'befQI:éT'thé:
Additional Sessions ,.t}udge" fl'CourtE No.1], Chennai to a Court if competent jurisdiction on the ground that free on and the process of justicelffislv Supreme Court after hearinfgtphe said transfer petition, by the judgment 'dilated allowed the transfer ' '~..¢.,pet'itiofi's ordered transier of Special C.C.No.7/97 V".C:§C.No.2/2001, to the State of Karnataka with aV___i:'urther direction that the State of Karnataka in consultation with the Chief Justice of the High Court of 'Karriataka shall constitute a Special Court under the PC and to such Special Court Special C.C.No.'7/97 and /7 Special C.C.No.2/2001 pending on the file of the XI Additional Sessions Judge [Special Court No.1) were ordered to be transferred and the S' was directed to have its sitting in.-Bantgalc'):re__"d '4 it 5
3. Pursuant to such di'rectior1r,.v_t11e of Karnataka constituted 36"" Civil and Sessions Judge as trying Special C.C.No.7/97 and Special against the petitioner _lane1j_: jjanlcllldlthose cases were transferred lUpon such transfer, the case 97 was re-numbered as Special C';C.li~Jo.lf2OS and Special C.C.No.2/2001 _ p was renumbered .as___'Specia1 C.C.N0.2O9/2004. Special is now pending before the Special Court for-S'fljonsideration. it appears certain orders Tpnpassed the Special Court were challenged before the it l'~:Cf'.3Sr,V1pr*erne Court in SLP No.3829--3830/2005 and further Proceedings in Speciai c.c.No.2os/2004 and Special C.C.No.209/2004:, came to he stayed by the Supreme Court on 5.8.2005 and on 24.4.2009, the stay modified. Subsequently, it appears, the "
Prosecutor was permitted to Wit.l'1dra.w the_v.§5r'osecut'ion-.g in Special c.c.No.2o9/2004. light"ol"~ill«at;--:"th:e'. trial in Special c.c.No.2o8/zoozicofittinuea;
4. It is at that has presented this petition seeking to'qt1a~sh~ the proceedings pending agaiiistéher ijCl'CVlNo.208/2004, inter aha on __the that"sl1e..,.i§,.vinnocent and has not committed. any"Voffence'sValleged against her and that the charge sh'eetl filed make out any case to take cognizance of the alleged offences; that the order dated by the Special Judge taking cognizance oi»/the oiieiicevdlis passed routinely, mechanically and '.Vwithouttapijlication of judicious mind to the contents of V' charge sheet and this is evident from the fact that in the order dated 5.6.1997, only the provisions relating to W"
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the criminal conspiracy and abatement read with provisions of Sections 13(2) and 13(1)(e] of the PC Act are mentioned; that since the offences punishrablei Sections 13(2) and 13(1)[e) of the PC Act against the petitioner, as stated the -icharge» have not been mentionedpinp thed'ord~er da.tedg5.:6. cognizance of the said offences' has n'ot'p_VVb'een'W§taken by the learned Special as entire further proceedings taken therehon i1'iegaiV~--'iarid without any basis and this léonspiciiioiis _oniissio'1i"on the part of the learngédhttttv non--app1ication of judicious«.ng1i1d:"to~.:t}ie:""conte1'1ts of the charge sheet, therefore, 'e1'itire."pro.ceedings is a nullity and is liable
- tQ._b*é Cgmaéhéd. .....
it this petition, the petitioner also filed arr. application Misc.CV1.7 31/ 2010 seeking stay of the Afi1rthei'.. proceedings in Special C.C.No.2O8/20O4 ' tiptending disposal of this petition. Notice of this petition it "as Well as the application for stay was served on the 11 respondent State represented by the Senior Special Public Prosecutor.
6. The Senior Special Public Prosecutor_'fi1Veti:"i*ii'sV.g objections to the application filed for contending that in the light of tl;1J6l:AAyVI?l'f(ta\»fVisi_or;1_'s' i9(3)(c) of the PC Act and: the iawfiiaid 'by; Supreme Court in the case oi*"S..c:ti'_z_:a Nariaijafi Slganna V. State of Rajasthan i :;_>}oo1,i" so @3561, this Court cannot pass an ordAer...:'_o-f. the further proceedings Special :Coti:'rt';" that this petition filed "t--h'e"order of taking cognizance passed b"y_tl1e VSpecia1:§}udge at Chennai is vexatious '_ andijislvvnotpmaintainable and this petition filed about 13 years -afteittlie cognizance was taken by a Court at C}ie:inait'.}1asa1'Vbeen filed with a View to protract the proceedings as such it amounts to abuse of process of A '~iSf"la\;V3'~«'.that quashing of the order dated 5.6.1997 or staying the proceedings would amount to disobedience 12 of the direction of the Supreme Court; that there is no illegality or irregularity in the impugned order; thpiatt in any event the issue can be of no Consequence'_p'as__i' the trial is almost concluded and it is not S the petitioner is prejudiced by the "i that the present petition is'h.,_ighly"sp'ecu1ati've.S:onejganci the petitioner having unsuceessfullv "'e.hallenfged the different orders including the _ov.f:granting sanction, has presented this petition]onlygvvithVaiview to protract the proceed.ings§f:'::Therefore, Special Public of the application for stay asV"wei'l as the
7. '._ln _Sa_tya:_ 'N_¢rayan Sharma Vs. State of Rqfcrstlvtlanp 1A.S1"R»_2'Q.G'v1 SC 2856], the Apex Court, 'interp1=eting_th.e provisions of Section 19(3) of the -PC Actfhasi none of the provisions in the Code could..l:ie«;_invoked for circumventing any one of the bans v~:lf"'eAn:ufnerated' in sub~section (3) of Section 19 of the PC :%I/,.., 13 Act, and this ban would apply even where a Court is exercising inherent jurisdiction under Section 482 'fofthe Code. In the light the law laid down by the there is no scope for considering the applicatian stay' S or to grant an order of stay, staying Hence the application Misc..Cr_1_..73l'/SO1(V) V
8. in the light of the the -rriatjterjpending before the Special is thanVl13 years old, by consentof learned appearing on both sides" merits of the petition. --. '
9. Rao, learned Senior Counsel appearing on.' of the petitioner reiterating the »gro11nds'i11*ge'd.._in the petition contended that a cursory loohkiiatlthlejjofder dated 5.6.1997 indicates that there is no application of judicious mind by the learned Special A 'fflciuldge to the voluminous materials produced by the investigating officer along with the charge sheet, though 14 the settled law requires the Magistrate/Special Court empowered to take cognizance, to apply their mind to the materials placed before them V' final report filed under Section "of. the out as to whether there is any case oCu.t.A1'or cognizance of the offence alllegeidandhvsucrr of V judicious mind OH" of it the "lilearned Mag1strate/ Special in the order that taking of cognizance: Senior Counsel fairly subrnittedl" nleceslsary for the learned Magistrat.e§/'Special at the stage of taking cognizance to all'-detaiied order by referring to the '*mpate.r:'iaiis placed ljelfore the Court but according to the 1_earned._Senior.'Counsel, there is a need for passing an order, rr_i.ay_"l4jr'.sel a brief one, but even such a brief order vindicate or reflect the application of judicious it the part of the learned Magistrate/ Special Judge to the materials placed before the Court and the l5 existence of a prima facie case for taking cognizance of the offence alleged. According to the 1earnedj'::3e'nior Counsel. the order dated 5.6.1997 in so maiijf' ll not indicate that the learned Spe'cial« cognizance of the offences alleged do reflect that the learned Spec--ia]'~V.Judge--. ghashis V judicious mind before zorhderiiigl of cognizance. It is the further submission Counsel that though I of the charge sheet, "Sections 13(2) and 13[1)[e):"of"the hjasfibeenllindependently alleged to ' have been lcorninittejd_fbgflaecused No.1, the order dated
5.6.1997 dol"'i1ot'e*§'exi".nd'ake a mention about the said "offences3-.ind'e.pendently and this is indicative of the fact Special Judge has not applied his judiciousv'Inir1d and therefore the order dated 5.6.1997 to take cognizance of some of the offences therein is bad in law as such further if lllfproiceedings pursuant thereto are all Vitiated and w 16 therefore, the entire proceedings is liable to be quashed. Learned Senior Counsel in support of his submissions sought to place reliance on several decisions.
10. Per contra, Sri.B.V.Acharya, Special Public Prosecutor appoi1_'_n:ed__ for; l"
case before the Special Court, sti'bmt§'tted as 7.? That the petition isiltfiiefi 0191137., 'W,I}ti4_A ""v'ie\"iv tot protract the proceedings via-s:."pSpeeial l COL1I"tW§ is now considering the application" the prosecution to recall some _ the perrnitted by the Supreme-. Conriuf-airtdf"'to"'-see"l that the proceedings are stalled; that' i:.he1'e.l4Valre.:riobona--fides on the part of the pevtitioner in lfi=ling___this petition after 13 years of the order regarding taking of cognizance; that the petitioneitfjenlii' earlier occasions had challenged different orders liricluding the order of granting sanction, before A Supreme Court and in none of those petitions, she hgad contended that the order dated 5.6.1997 taking rt 17 cognizance of the offence is a nullity in the eye of law and that it is illegal and this circumstance {Would indicate that the present petition is filed only malafide intention of protracting the proceeclingsliand to .. stall the further trial of the case;
directions issued by the Honfhle Siipi'eme.*(ioLi:rt judgment passed in the Tran's'fer_'VPetitio:ng l\ior77»78 of 2008, this Court can1ir__)..t:,"en'tertain~--th.ispetition or quash the proceedingsas it result diisioiziedience of the directions 'tliatmin the order dated 5.6. joifencelhpunishable under Sections 13(2) "hatter p'13(1'}V{e)f'efitiie PC Act has not been independently wrnentiovned, nevertheless there is .°-reference to thosvewoéffences in the said order and the direcption-. contained in the said order regarding issue of suinrncvnsfitto the accused would indicate that the
1.earned----Specia1 Judge has applied his judicious mind to 'inaterials placed before him and was satisfied about "the existence of prima facie case to take cognizance of 18 the offences alleged and therefore, the said order is perfectly in accordance with law and there ails'-.gi1o illegality in the said order; that pursuant to of summons, the petitioner herein appeared~--..before the ._ Special Judge and pleaded l'o_1b--I levelled against him including__thel'chlarge S. punishable under Sections and ll3(_Vl){e] the PC Act and has participa--ted .thi_e.ll.ti=ial,lSWhich Went on for several years, therefore~-a_t:-this is not open to the petitioner thcjjg-orderllllpassed regarding takingh that there is no application oi" that assuming for the purpose o1"lllatgurnent- there is some irregularity in .-- V. dated 5,6,lV997, in the light of the provisions not" of the Code, this Court in exercise of inherenv't'po3Wers under Section 482 of the Code, cannot Jqusash proceedings as, the alleged irregularity has not vitiated the trial of the case nor it has occasioned in '*-the failure of justice, as such there are no grounds to 19 quash the proceedings therefore he sought for dismissai of the petition. The learned Senior Counsel also placed reliance on several decisions.
11. In the light of the above, the for consideration is, "Whether the proaecutiori f against the petitionerA'---grin gv.'Spevcial c.c.No.2o8/2004 is lialafleto he----quacsheVd]in' it exercise of the ,.p.owe1j- _ _ Court' V under Section 482 of ;. S4 V 'S decisions of the Supreme Court, the iprincipleséSreilating exercise of jurisdiction under" Section. 'Code to quash the complaint or Viicriiininalieproceedings are well settled. According to S" these piiinvciples a criminal proceedings can be quashed V --V if rnateérials placed before the Court along with the it firial report submitted under Section 173 of the C-ode, even accepting as true and correct at its face value, does V "not constitute any offence alleged or make out the case a/ we, 20 alleged against the accused. Proceedings may also be quashed Where it is a clear abuse of the process the court, or when the criminal proceeding is fou;nd«l been initiated with inala fides/inalice ~ ~. vengeance or to cause harm, or Where 'the'i.a1}e'gatioi1Vs are absurd and inherently inrprggobablej.
13. in the case on sought for quashing the .tia.e'ground that the order dated e.e.;ee7eepgeeee Judge at Chennai her is a nullity in theyeye' order has been passed without appliicatiorii'.o'fjudicious mind and therefore in laxjvithiere no*or_de.i" taking cognizance of the offences ' the entire proceedings is liable to be could be seen from the copy of the charge sheet produced, the following offences are said to have "it been committed by the accused persons:
V 2} (1) "'Act: Indian Penal Code. Section 120-5' r/w Sections 13(2) and 13(1)(e) Prevention) of Corruption Act, 1988.
{2} "Act: Prevention of Corruption Act: ., 13(2) r/w 13(1)(e) 1988. 4' C (3) *Act: Indian Penotiét' r/w Section Prevention of Corruption Acct;-CI98S.;'1:.(V' 2 it
14. passed by the Specie-1' reads as under:
under Section 120{B) of IPC r/"w..V_VV:vSecli.ion 13(2) and 13(1)(e) of o_Hf"C0rruption Act and 12/5 109 of 1_1:*c_t 1v:¥)'_A~11)t1;(113(2) and 13(1)(e) of Prevention of Coffiiption Act. Issue summons to the '(accused to appear on 11.3.1997. Prepare copies. "
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The petitioner alleging that the above order passed is illegal and not in accordance with law as such it is a nullity, has sought for quashing of the proceedings
15. Though several provisions contained in '' Chapter XIV of the Code uses the dnrord._v'cog-nteetncep';the". said word has not been pe.d_efinedp:'in the..'n.'Code. expression 'taking cognr'zan"Ce:'rhas been the subject matter of judicial interjpretationdpdin. decisions of the Apex Court and this it A :6. 1nie'v;_'stat.ébf U.P. [AIR 1951 so 2071 it was observed V ., " 2 L cotgnizance does not involve it format' OEIIOVH or indeed action of any kind bttt~iocc:"urs as soon as a Magistrate as such cipptzles' mind to the suspected commission ._ Q 'an offence'. "
In Darshan Singh Ram Kishan V. State of it i"V'1Vfa_h:c£rashtra [AIR 1971 SC 2372]. while considering the 23 purport of Section 190 of the Code, it has been observed thus, "Taking cognizance does not .involve'C"
any formal action or indeed action Qfanyf _ é but occurs as soon as a f his mind to the suspected on offence. Cognz2anc(§_ ..fherefote,v..ta3ces_;
at a point when a ffst._taites judicial notice of is the position takes cognr'za§nc'e.;o§f or on a pQir3cé_«.__ information of a pezjso n~ .ottie.fi _ than' ' a 'pain; Vvoffcer. "
18h.' .Ief1.Narayaridasfihagwandas Madhavdas Vs. State' to; Wes't..i2engdi [AIR 1959 so 1123], the Apex Considering the case in which the taken cognizance of offences as per V . Section"---e1i9'0'(V'I)(a) of the code has observed that, "before it can be said that any
--*:Magistrate has taken cognizance of any offence under Section I 90(1}{a) of the Criminal 24 Procedure Code, he must not only have applied his mind to the contents of the petition but must have done so for the purpose ofc proceeding in a particular way as indicated the subsequent provisions of the proceedings under Section 200 sending it for inquiry and ' _
202." TV It was further observed that} "there is no special _charm«_:io'r any magical formi1la"~..in it expression "taking cognizance" which" rnerelg judicial applicatioin .__of theflvniindjl aims Méigistrate to *the_ :'.n_' the complaint with a vdieur to taIVc.ingV"action.
It was also' obseirilredvi that in fivhatflléection 190 contemplates is that V 1 »lMa:g"_isb'ate takes cognizance once he fully conscious and aware of pg allegations made in the complaint and __ decides to examine or test the validity of the said allegations."
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19. In Kishun Singh Vs. State of Bihar [(1993) 2 SCC 16}, it has been held that, "when the Magistrate takes notice of ~ accusations and applies his mind allegations made in the complaintor' report or information and on f that the allegations, _' if A'-phroved, constitute an offence;-vl.:tiecides--- _to, if judicial proceedings : the ' ' alleged offender, he is cognizance ofthe offence." 1 ' V
20. Bengal' Vs. Mohd. Khalid {(1995}--._1 Court after taking note of the fact the expression "taking cognizance" has not
- _Abe:f;§n¢.di::ifi1:i:d in'thv-------Code has held thus in para 43, _ broad and literal sense, it means of an offence. This would invicluclle the intention of initiating judicial proceedings against the offender in respect of E that offence or taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 26 'cognizance' indicates the point when a Magistrate or a Judge frst takes judicial notice of an offence. It is entirely a differentflg thing from initiation of proceedings; rather is the condition precedent to the initia--tion :"
proceedings by the Magistrate or the «. Cognizance is taken of cases and '1'no_t'~.Qfg_ persons. "
21. After referring to g11i1lll:t?o_eV._»ebo.\}e'~«decisions, the Apex Court in the Kamataka and another Vs. Pastor P." llésupreme Court Cases .7281. 1.11 . igara $13, '' "I to mention here that taking of an ofience is not the 'Sarnel as issuance of process.
A Cfognizancellislltaken at the initial stage when t. ih§Ma§;iis:.trate applies his judicial mind to the l' . rrtentioned in a complaint or to a police gt or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to <7"?
2%' 27 proceed against the offenders against whom a primafacie case is made out."
22. As held in Tula Ram Vs. [(1977) 4 sec 459; in State of isinalrrei [1992 Supplement (1) SCI)-.._222l'i'-..and of Maharashtra Vs. gvinongre {(1995) 1 sec 421, it is?«only_iippn"-consideration of the materials submitte_d I report under Section 17 himself that the prima Vfacic. :th.e}Magistrate empowered to "Section 190(1)(b) of the Code takes cognizarlceofihe<.offences alleged and proceeds to steps-----fo'r issue of process to the accused then only proceedings in a criminal case stand Therefore, taking cognizance of the offences' alleged on application of judicious mind is a '' eondition precedent for proceeding with the criminal .....prosecution against any person, and as a corollary if 28 cognizance of the offence is not taken in accordance with law, certainly criminal prosecution cannfot.g be proceeded With.
23. In Devendra Vs. Stat eof U.P. 4951, it has been held that it is obligatory cf the Magistrate to apply his contentis charge sheet, and such application "of. onmvhislllpartlw' should be reflected ifiithe ordérhf'
24. In the baclr.grouni.dV these well settled principles or me consider the contention urged in support of this " 2
25."l\_To douht,'..p'crz_usa1 of the order dated 5.8.1997 g_ pa_sé:;ed__xi3yv th.e"Speci.a1 Judge at Chennai indicates that ' the-..Ie-a1'ne'dA'i3pecia1 Judge has not in so Ipany words stated has taken the cognizance of the offences. the learned Judge after referring to the " offences, has directed issue of summons to the accused 29 persons to appear before the Court. This, as rightly contended by the learned Senior Special vl5ublic Prosecutor, is indicative of the fact that Special Judge has taken the cognizanceof Ao.ffence'sl "
alleged on application of his As' submitted by the learneci.4__.Senio_rl"' petitioner, the Special Judge not reqtiired pass a detailed order While to indicate his application of mind. v.Wh_at is that stage is only to iidge has apprised himselfolf casewand the offences alleged and satisfied "a case for taking cognizance of spuchp doubt, the offence punishable A itl""underE"-Sections 13(2) and 13[1][e) of PC Act has been independentlySirnentioned in the charge sheet and the same hasnolt been independently indicated in the order dated 53.1997. Nevertheless there is reference in the dated 5.6.1997 to the offence punishable under "Sections 13(2) and i3(i)(e) of PC Act, of course, in the 30 context of the offence punishable under Section 120-8 of UPC and 109 of IPC. s
26. It is highly difficult to accept the the learned Senior Counsel for the petitioner fact that the offence punishab3.eld"under*4._Se'ctio1*1e_V and 13(1)(e) of PC Act are not independently.rnentioneVdE in the order dated 5.6.199l7'c'e».:a's charge sheet, is indicative ofirlion judicious mind of the learned Specialj stage, it is necessary toil é'l*1"ou§h.:th'e"petitioner appeared before1.,,_the learned:Spe'ci:a'l..J'udge pursuant to the service of sumrnons _ the" 1997 itself, and she was reprlesehted hy"-verriinent lawyers and though she had ' ch'al1er.1__ged' «.seVeral orders passed by the Special Judge on"severalf_occasions, in none~of those petitions it was contenydedl that the order dated 5.6.1997 is a nullity. In A as noticed earlier. after the appearance, the learned Special Judge framed charges against the 31 petitioner and others wherein the petitioner is charged for the offences punishable under Section Sections 13(2) and i3(i)(e} of PC Act independently and of cours'e.ethe petitioner has pleaded not guilty for the petitioner has participated in the trial of -. u which period as many as 200 and,odfid4'wi.tne--sses»._were examined and cross exani.i_ned."i,D'uringg'"this e_f'r1tire_'. period, she did not contend that:ti1ere is proper order taking cognizance of V the ofi;en«:j;e.v'.aiiege'd._ It appears only when the deckswas of the case beforchV"the' ' atllvlliiangalore and when the prosecution before the Special Court for recalling some 'of7'the Witnesses for the purpose of cross ., egianqiiiation by treating them hostile as observed by the the petitioner appears to have come up t__'nis:petition. No doubt there is no limitation prescribed for filing a petition under Section 482 Code C lnridiltthe power under Section 482 Code could be invoked it "at any stage of the proceedings. However, in the case 32 on hand, having regard to fact that the petitioner has consciously participated in the proceedings for wsriearly 13 years, ably represented by eminent open to her now to seek quashing of the_pro:e»esed:i:ags one the premise that the order of offence passed on 5.6.1997 is a riiillity and accordance with law. s V V
27. The I-Ion'bie._"S1iprfer§i.e" in theuvjudgment passed in transfer the events that have, ease:""st1bsequent to the I3etitioI1e:r' Chief Minister of the State, observed' trial is not going on and the proigess' of jVi1sti.ce___sis being subverted. It is for that ' ,re'asorr,"~the""cases were ordered to be transferred to a Special' at Bangalore. After the transfer of the case..to'~;the Special Court at Bangalore, the stay granted A Supreme Court on 5.8.2005 in SLP.No.3829-- S3830/2005 was in force 1:111 24.4.2009 and 33 subsequentiy, the prosecution in Special c.c.No.2o9/2004 came to be withdrawn and thu§s--.gthe Special Court was required to proceed with trial of Special c.c.No.2os/2004. It is_.no't'--i.iii:»A.ciis_p1ite_ that thereafter the prosecutionifiieidgapplication. the Special Court seeking___ totrecali witnesses and the said application was opposed by the petitioner and the '*h'a.s"'reserved its order on the said app!.ication-.~--itjis'at the petitioner has approa.ched§j:SSitliiséi Vpoiéérer under Section 482 prevent the abuse of process Qfthe 'arid«.i1'1Vocation of the power under Section 4S2 pf' a party should not amount to abiiseiof the process of law. Having regard to the facts and pcirciinisptances of this case, the conduct on the part oi""'the,._petitioner in keeping quite for 13 long years and haying'-'participated in the proceedings, it is not open to S .he1°at this stage of the proceedings to seek quashing of 'S V' "the proceedings on the premise that there is no proper 34 order regarding the taking of cognizance. In the facts and circumstances of the case, if the power fnrigcier Section 482 of the Code is exercised, it abuse of the process of law.
28. As per the provisionsoi'C:Section'A Code, unless in the opinion thel'col1irt fail1irev'of'ju";stice"'V -' has in fact, been occasioned;.c_V'r1o_ findingfsentence or order passed by a econ. of: Com;"pe_t'eyIi't. jurisdiction shall be revised or altered 'Cour; ofiappevai on account of any error, _Von1i§;'s'ionVtori_irre_gnlarity'""in the complaint, surnnions,' jncigrn'ei1ts'i'.cVo1'--. other proceedings before or during the in" enquiry or other proceedings undierV_lAthe code-. _____ __According to sub-Section (2), in ' de'terrn_irrirlg""whether any error, omission or irregularity in 'proceedings under the Code has occasioned a f3l1l1'17€:l0._f justice, the court shall have regard to the fact "IT" yvhether the objection could or should have been raised C an earlier stage of proceedings.
35
29. In the case on hand, the petitioner had ample opportunity to have raised this contention earlier as-.she had challenged several orders of the at.' different times before the higher courts of ., those petitions she had urged 9 According to the learned .4__Sendior""'Counsel petitioner, this defect in the is inherent defeat and not a technical defec't'---aiiad t:herefore»..proVision of Section 465 of the Codehas 1 "
30. I thillscontention. In the first piace,' in" the order dated 5.6.1997. It cannots._l:)"e_ learned Special Judge at had' "not ____ applied its mind to the materials ' placedvvhirn and that he has not taken cognizance of the offencle after making himself aware of the case. The orderhvdated 5.6.1997 is sufficient to indicate that it "learned Special Judge had applied his mind to the rnaterial on record and was fully satisfied about the ex 36 existence of prima faeie case to take notice of the offences alleged and the fact that he directed of summons to the accused persons is indicative; fact that he has taken cognizance. d_atedl., 5.6.1997 do not suffer from any:;:i11egaliiy'.of'_irregt1l..arityl' At the second place, ass11m_ingVt151_a't th-:i"'e;are s;orr1e_°; irregularities in the order it is a technical defect and _tl'i_at;Vj_gro'11B.d;< the proceedings Cannot be quashedv;'ifl".*§Xe1"'5li3€" power under Section 432' of at this. stage', it is necessary to tdheldvslupreme Court inthe case of Santosh .l)e' Vs. Archna Guha and others [(1994] L2 Court: Cases 420} at para 15 as under:
V ~'t'p_15. hedfacts of this case impel us to it a. hoiffipeasy it has become today to delay of criminal cases. An accused so x can stall the proceedings for decades together, if he has the means to do so. Any and every single interlocutory is challenged in the superior courts and the superior courts, we are pained to say, are falling prey 37 to their stratagems. We expect the superior courts to resist all such attempts. Unless a---___ grave illegality is committed, the courts should not interfere. They allow the court which is seized of _ to go on with it. There is «3,_1174Aapp.el1batE»p»fl court to correct the errors. 1é,'3©I3":Vt"A in mind the principie_p"'l:)ehind Cr.P.C. Any and or infraction of a' :.provi.sion carinot constitute a grouncl 5iI1te1'fere1f.9.ce by a superior. -court Virregulafity or infraction iti1ha_s 'V caused hreparable prejudice requiles be corrected at that' ..iteelf;.i:::Such frequent interference blyasluperior the interlocutory stages . .,tends'' to defeat ends of justice instead of serving thost:--«'ends. It should not be that a enough means is able to keep the «A bay. That would mean the failure of oery system"
Ttrepalolove extracted observation of the Supreme Court A"'scl1tiare1y applies to the case on hand. 38
31. Having regard to the facts and circumstances of this case and the fact that the petitioner'-««..ha,d participated in the proceedings for nearly * since the case is almost at thewagp uh' assuming that there is some -the dated 5.6.1997, it cannot has"?
been caused to the pe"titione1'§" _prejudi'ce-has been caused to the petitioner,..it for this Court at this and quash the from any angle, I find proceedings. Therefore, the petition '1iab1eV_.to_:'be' _ .32. the petition as Wei} as t " 1_/ 20 are dismissed.
Sd/-
» JUDGE