Karnataka High Court
Commander A K George vs Mrs Jeanette Iyer on 25 July, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JULY , 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.7122/2017
BETWEEN:
1. COMMANDER A.K. GEORGE
I.N.(RETD.) ADVOCATE
AGED ABOUT 86 YEARS
S/O LATE SHRI A.K. KOSHY
R/AT FLAT-1B,
DAFFODILS, 27, TRINITY FORTUNE
GEDDALAHALLI
BENGALURU-560077.
2. MRS. RAJESHWARI REDDY
ADVOCATE
AGED ABOUT 66 YEARS
W/O LATE SHRI. K.P. REDDY
R/AT TF-3, DUKES MANSION
100, SPENCER ROAD
FRAZER TOWN P.O.,
BENGALURU-560005.
... PETITIONERS
(BY SRI. NOVA BETHANIA S A/W
SRI. B. VENKAT RAO, ADVOCATE)
AND:
STATE OF KARNATAKA
REP. BY THE PRINCIPAL
HOME SECRETARY, GOVERNMENT
OF KARNATAKA
VIDHANA SOUDHA
2
BENGALURU-01
(DELETED V.O DATED 06.10.2017)
1. MRS. JEANETTE IYER
AGED ABOUT 60 YEARS
W/O MR. RAJGOPAL
VENKATESAN IYER
2. MR. RAJGOPAL VENKATESAN IYER
AGED ABOUT 66 YEARS
S/O LATE VENKATESAN RAJAGOPAL
BOTH RESPONDENT NOS. 1 & 2
ARE R/AT D-5, 'J' BLOCK
GOLDEN ORCHID, LAVELLE ROAD
BENGALURU-560001.
... RESPONDENTS
(BY SRI.RAJAGOPAL VENKATESAN IYER, PARTY-IN-
PERSON - R-2 )
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 CR.P.C PRAYING TO QUASH THE
P.C.R.NO.15738/2014 WHICH WAS RE-NUMBERED AS
C.C.NO.22394/2016 ON THE FILE OF VIII ADDL. CMM,
BANGALORE.
THIS CRIMINAL PETITION BEING HEARD AND
RESERVED FOR ORDERS, COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
Petitioners who have been arraigned as accused Nos1 and 2 in CC No.22394/2016 pending on the file of VIII ACMM, Bengaluru are seeking for quashing of the said proceedings.
2. It is an unsavory litigation inasmuch as, the proceedings have been initiated by respondent No.1 and 2 herein who are once upon a time esteemed clients of the petitioners who are practicing advocates of this Bar. BRIEF BACKGROUND OF THE CASE:
3. A complaint under Section 200 Cr.P.C came to be filed by respondents-1 and 2 herein on 18.10.2014 before the jurisdictional Magistrate alleging thereunder that petitioners herein were aggressively pressing for payment of professional fees despite same having been paid and were claiming ` 20 lakhs without any legal basis and have also misused and misappropriated the privileged communication between a client and an 4 advocate and there by they have committed an offence punishable under Section 409, 500, 506 and 509 IPC. On recording of sworn statement of the complainants and on perusal of the records placed by the complainants, learned Magistrate by order dated 01.10.2016 took cognizance for the offences under Sections 409, 500 & 509 IPC and has issued summons to the petitioners herein. At that stage, petitioners have approached this court by filing this petition for quashing of the proceedings . This court by order dated 06.10.2017 has stayed further proceedings.
4. It is the contention of Sri Venkatarao, learned Advocate appearing for petitioners that learned trial Judge committed a serious error in taking cognizance of the offences under Sections 409, 500 & 509 IPC inasmuch as, none of the ingredients of these provisions are attracted and there has been total non- application of mind by the learned Magistrate at the time of issuing summons and the pre-requisites 5 required to be followed while ordering issuance of process to the accused has been completely ignored. Hence, he prays for quashing of the proceedings by invoking extraordinary jurisdiction.
He would also elaborate his submission by contending that non-application of mind by the learned Magistrate is evident from the records since mere non- entrustment of the case would not by itself attract the provisions of Section 409 of IPC. He would draw the attention of the court to the complaint filed by the respondents-1 and 2 herein before the Karnataka State Bar Council alleging professional misconduct and as such, it is an issue which is now being examined by the Karnataka State Bar Council and there being no ingredients of Sections 409, 500 & 509 IPC present, learned Magistrate could not have clutched the jurisdiction to issue summons to petitioners. He would draw the attention of the Court to the statements of respondents-1 and 2 recorded on oath by the learned 6 Magistrate to contend that none of the ingredients of Sections 409, 500 & 509 IPC can be discerned from the said statement.
He would also submit that cognizance taken for offences alleged under Sections 500 & 509 IPC are barred by limitation indicated under Section 468 Cr.P.C. and as such, proceedings are liable to be quashed.
5. Per contra, respondent No.2 appearing on behalf of himself in person and also on behalf of respondent No.1 - his wife has supported the proceedings initiated by them against petitioners and also the order of the learned Magistrate issuing process to the petitioners by reiterating the grounds urged in the complaint filed before the learned Magistrate. He would contend that petitioners have not come with clean hands and petition itself is an abuse of process of law. He would submit that petitioners who are advocates were engaged by the complainants in a civil 7 suit O.S.No.5139/2004 pending on the file of Civil Court, Bengaluru and said suit was not being handled satisfactorily by the petitioners and dragged on for several years. He would submit that being disillusioned with the handling of the case by the petitioners, complainants sought for return of the brief and the documents to enable them to engage the services of some other counsel and on account of there being no agreement with regard to payment of professional fee, they allege that first petitioner refused to comply with the request from the first complainant and first complainant had in fact pleaded her inability in the said suit on account of absence of her advocate and after the second complainant returned from abroad, together they had approached the first accused for discussion on 19.07.2014 and he was not only very rude and behaved in an intemperate manner but also did not talk to them and they were abused. It is further alleged that on account of situation becoming intolerable and complainants having lost trust and faith 8 in the petitioners handling their case, they sought for return of the file and vakalathnama from the petitioners herein which was not complied and as such, complainants were forced to file an application to discharge the petitioners (accused) in O.S.No.5139/2004 and at that point of time, petitioners appeared and filed their objections to the said application and sought for dismissal of the application by raising several grounds justifying their retention of the file and not issuing NOC vakalathnama on the ground that complainants owe them fee of minimum ` 20 lakhs apart from other amounts due and payable by them. Hence, the complainants have alleged that allegations made in the objections filed by the accused to the application for their discharge are defamatory in nature which has caused the complainants mental agony, pain and destroyed their peace of mind.
6. Complainants have also alleged that there was a matrimonial dispute amongst them which was the 9 subject matter of M.C.No.2446/2010 in which case, the first complainant herein was the respondent and accused persons i.e., petitioners herein had been engaged by her. It is also stated that said M.C.No.2446/2010 was withdrawn as the dispute amongst them came to be reconciled and they are living together. It is contended that confidential information passed on by them to their Advocates namely, by the complainants to the accused have been misused by accused persons by referring those information in the objections filed by them to the application filed by the complainants in O.S.No.5139/2004 seeking their discharge. Hence, contending that averments made in the objections so filed by them would clearly establish mens rea and as such, they would contend that there is no error committed by the learned trial Judge in taking cognizance of the offence alleged against the petitioners and issuing summons to them. Hence, he prays for rejection of the petition.
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7. Having heard the learned Advocate appearing for petitioner and second respondent appearing in person and on perusal of the records, the point that would arise for consideration by this court would be:
" Whether learned Magistrate was justified in issuing summons to the petitioners by order dated 01.10.2016 on the basis of a private complaint which came to be registered as PCR No.15738/2014 which is now pending in CC No.22394/2016 and same is liable to be quashed?"
8. Perusal of the records would disclose that on the basis of a private compliant filed by the respondents-1 and 2 herein under Section 200 Cr.P.C. alleging that accused had committed offences punishable under Sections 409, 500, 509 IPC, the learned Magistrate had ordered on 27.10.2014 to register the said complaint as PCR and posted the matter for recording of the sworn statement of 11 complainants and after recording their sworn statements and marking the documents produced by them as per Ex.P-1 to P-6 and hearing them between 18.08.2016 to 20.08.2016, by order dated 29.08.2016 listed the matter to 15.09.2016 for recording further statement to clarify certain facts. Accordingly, further statement of first complainant came to be recorded on the said date and by order dated 01.10.2016 ordered for issuance of summons to accused Nos.1 and 2 for the offences punishable under Sections 409, 500 & 509 IPC on the ground that there are sufficient materials to proceed against the accused Nos.1 and 2.
9. It is trite law that no formal or detailed order is required to be passed at the stage of issuing process. However, the said order must indicate that learned Magistrate is satisfied about allegations made in the complaint would constitute an offence, when such facts are considered along with the sworn statements recorded under Section 200 Cr.P.C. and it would make 12 out primafacie case against the accused. In the absence of such reasoning in the order, it would be susceptible for being interfered with.
10. Cognizance of an offence on the basis of complaint is taken for the purpose of issuing process to the accused. Taking cognizance does not involve any formal action and it would occur the moment the Magistrate applies his mind to the suspected commission of an offence. Therefore, cognizance takes place at a point when the Magistrate first takes judicial notice of an offence. Though the expression 'take cognizance' is not defined under the Code, it would mean 'application of mind' to the allegations made in the complaint. The Hon'ble Apex Court in the case of KISHUN SINGH vs STATE OF BIHAR reported in (1993)2 SCC 16 at paragraph 7 has held to the following effect:
"7.... Even though the expression 'take cognizance' is not defined, it is well settled by a catena of decisions of this Court that when the Magistrate takes notice of the 13 accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence decides to initiate judicial proceedings against the alleged offender he is said to have taken cognizance of the offence. It is essential to bear in mind the fact that cognizance is in regard to the offence and not the offender. Mere application of mind does not amount to taking cognizance unless the Magistrate does so for proceeding under Sections 200/204 of the Code..."
11. The Hon'ble Apex Court in the case of MEHMOOD UL REHMAN vs KHAZIR MOHAMMAD TUNDA AND OTHERS reported in (2015)12 SCC 420 has held that satisfaction is required on the part of the Magistrate for formation of opinion to issue process. It is held:
"22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along 14 with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 CrPC when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC by issuing process for appearance.
The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 Cr.PC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."15
12. Keeping the aforestated position of law in mind, when the order dated 01.10.2016 passed by the learned Magistrate is perused, it would disclose that there is no indication with regard to application of mind to the material allegation made in the complaint in taking cognizance and issuing process to the petitioners. The offences alleged against the petitioners are Sections 409, 500 & 509 IPC namely, for criminal breach of trust, defamation and insult to the modesty of a woman. The order of the learned Magistrate would not disclose as to how the allegations made in the complaint together with the sworn statement of the complainant would constitute sufficient material to take cognizance of the offence and to issue summons to the accused. In the absence of reasons forthcoming from the order issuing process or the said order giving any indication to these aspects, the one and the only conclusion which this court will have to draw is to hold that such application of mind is conspicuously absent 16 and as such, the order issuing process cannot be sustained.
13. On this short ground, order dated 01.10.2010 issuing process to the petitioners is liable to be set aside. Though learned counsel appearing for petitioner and second respondent appearing in person for both the respondents have extensively argued on merits of the case, this court is of the considered view that it would not be necessary to examine these aspects and said aspect can be as well looked into by learned Magistrate at the time of reconsidering the matter in view of order issuing the process is being set aside and the matter is being remitted to the learned Magistrate for re-examination afresh.
Hence, I proceed to pass the following:
ORDER
(i) Criminal petition is hereby allowed.
(ii) Order dated 01.10.2016 passed in PCR
No.15738/2014 (CC No.22394/2016)
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issuing process to the petitioners is hereby set aside and matter is remitted back to the VIII Additional Chief Metropolitan Magistrate, Bengaluru for adjudicating afresh on merits and in accordance with law, keeping in mind observations made herein above.
SD/-
JUDGE *sp