Karnataka High Court
Smt Shobha Karandlaje vs M/S Popular Front Of India on 1 October, 2020
Equivalent citations: AIRONLINE 2020 KAR 2654
Author: John Michael Cunha
Bench: John Michael Cunha
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.6815 OF 2019
BETWEEN:
SMT SHOBHA KARANDLAJE
D/O MONAPPA GOWDA
AGED ABOUT 53 YEARS
R/A KARANDLAJE HOUSE
CHARAVAKA, PUTTUR-574201
DAKSHINA KANNADA
...PETITIONER
(BY SRI: SRINIVAS S V, ADVOCATE)
AND:
M/s POPULAR FRONT OF INDIA
HAVING ITS REGISTERED OFFICE AT
DECCAN HOUSE, NO.5
1ST MAIN, 4TH CROSS
SK GARDEN, BENGALURU-46
REPRESENTED BY ITS SECRETARY
NASEERUDDIN
...RESPONDENT
(BY SRI: MOHAMMED TAHIR, ADVOCATE)
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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
PRAYING TO:-
1. SET ASIDE THE ORDER DATED 27.06.2019 PASSED BY THE
LXXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN PCR NO.30/2019 PRODUCED AT ANNEXURE-A
TAKING COGNIZANCE OF THE COMPLAINT FILED BY THE
RESPONDENT.
2. SET ASIDE THE ORDER OF THE LXXXI ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU DATED 31.07.2019
IN PCR NO.30/2019 PRODUCED AT ANNEXURE B TAKING
COGNIZANCE OF THE OFFENCES AGAINST THE PETITIONER
AND ORDERING FOR REGISTERING CRIMINAL CASE AGAINST
THE PETITIONER HEREIN NUMBERED AS SPL.C.C.NO.865/2019.
3. QUASH THE ENTIRE PROCEEDINGS IN SPL.C.C.NO.865/2019
PENDING ON THE FILE OF LXXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN SO FAR AS IT RELATES TO
THE PETITIONER HEREIN.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.09.2020 AND COMING ON FOR
PRONOUNCMENT OF ORDER, THROUGH VIDEO CONFERENCE,
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition under section 482 Cr.P.C. is directed against the order passed by learned LXXXI Addl. City Civil and Sessions Judge, Bengaluru dated 27.06.2019 in PCR No.30/2019 whereby the learned Sessions Judge and Special Court to deal with criminal cases related to elected MPs and MLAs in the State of Karnataka has taken cognizance of the offences under sections 500, 505(1) b, 505(1) c and 505(2) of IPC and issued summons to the respondents therein to face trial for the above offences.
2. The brief facts necessary for consideration of the contentions urged by the petitioner are that the respondent herein filed a private complaint against the petitioner and others under section 190(1) (a) and 200 Cr.P.C. seeking their prosecution for the offences under section 500, 505(1) b and c and 505(2) of I.P.C.
3. In the complaint, it is alleged that with a diabolic intention to defame the respondent- M/s. Popular Front of India, the petitioner herein alleged that the respondent/complainant 4 received money from Mansoor Khan, Director of IMA company who is accused of cheating many investors around Karnataka through a ponzi scheme. Further, it is alleged that in the media byte of accused No.1, the petitioner categorically labelled the respondent as a 'terrorist organization' without any evidence, only to malign the name of the respondent in public domain and with a sole intention to tarnish the image of the respondent, its leaders and members. Further case of the complainant is that the statements made by the petitioner were aired by accused Nos.2 and 3-the new channels referring the respondent as a "terrorist organization". In the complaint, the alleged defamatory imputations made by the petitioner were extracted and the CD containing the defamatory contents were produced alongwith the original authorization letter and copy of the certificate.
4. The learned Sessions Judge and Special Court took cognizance of the above offences and on recording the sworn statement of the complainant and considering the above material by its order dated 31.07.2019 issued process to the petitioner and others.
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5. The contention of learned counsel for the petitioner is that the petitioner being an elected representative has a social responsibility towards the Public at large and in that capacity, when she was approached by the media reporters, she gave her opinion regarding the scam that was unearthed in relation to ponzi scheme only to caution the general public and with a genuine concern towards the down-trodden and not with an intention to malign the respondent and therefore, the opinion expressed by her does not constitute the offences under sections 500, 505(1) b, 505(1) c and 505(2) of IPC. It is further contended that the petitioner has not made any imputation branding the respondent as a "terrorist organization". The respondent has not produced any material to demonstrate any harm or injury caused to its reputation as a consequence of such imputation. Under the said circumstances, the complaint itself being vexatious and designed to malign the petitioner, the learned Sessions Judge and Special Court has committed an error in issuing process to the petitioner mechanically without application of mind. There is no prima-facie case against the petitioner making out the ingredients of the above offences and 6 therefore, the initiation of criminal action against the petitioner and the consequent issuance of process to the petitioner is illegal and an abuse of process of Court. It is further contended that the CD produced by the respondent/complainant could not have been taken into consideration by the Special Court without production of certificate as contemplated under section 65B of the Evidence Act. In view of this procedural irregularity and there being no prima-facie material to disclose the commission of offences by the petitioner, issuance of process to the petitioner is wholly illegal, arbitrary and liable to be set-aside and consequently, the entire proceedings in Spl.C.No.865/2019 are liable to be quashed.
6. Learned counsel appearing for petitioner has reiterated these contentions in the course of his submission and relying on the decision of the Hon'ble Supreme Court in ARJUN PANDITRAO KHOTKAR v. KAILASH KUSHANRAO GORANTYAL AND OTHERS, 2020 SCC ONLINE SC 571 emphasized that the CD produced by the petitioner being inadmissible in evidence for want of certificate under Section 65B of the Evidence Act and 7 there was no material before the Special Court to arrive at a satisfaction that the petitioner has committed the above offences, the process issued by the Trial Judge has turned out to be an abuse of the process of Court.
7. Learned counsel for respondent/complainant while referring to very same decision with reference to para 27 emphasized that the stage for production of the certificate under section 65B of Evidence Act would arise only when the document is sought to be produced in evidence and therefore non- production of the certificate does not furnish a ground to quash the proceedings; and with regard to merits of the case, learned counsel took me through the complaint and referred to the relevant portion of the defamatory statement extracted therein specially paras 5 and 6 of the complaint and submitted that in the light of this material, the Trial Judge was justified in issuing process to the petitioner as the material produced before the Court clearly made out the ingredients of the offences alleged against the petitioner. Further, learned counsel would submit that the petitioner being an elected representative was required 8 to exercise more restraint rather than making irresponsible and baseless imputation against a particular organization with intent to create communal disharmony and therefore there is all the more reason to proceed with the prosecution of the petitioner for the above offences.
8. I have bestowed my anxious thought to the submissions made at the Bar and have carefully scrutinized the material on record.
9. It is trite law that at the stage of issuing process, the learned Magistrate or the Court is not required to ascertain the correctness or otherwise of the allegations made in the complaint and that the evidence produced in support of those allegations is sufficient to warrant conviction. At that stage, the Court is merely concerned with the allegations made in the complaint and the material relied on by the complainant so as to decipher a prima facie case for trial.
10. The impugned order reveals that the process is issued to the petitioner only after recording the satisfaction that the allegations made in the complaint as recorded in the CD, 9 transcript whereof was produced alongwith the sworn statement, falls within the ambit of section 499 IPC. The petitioner/accused does not deny the authorship of the imputations. No contention has been urged either in the petition or in the course of hearing that the alleged utterances or imputations fall within any of the exceptions provided under section 499 IPC. On the other hand, the portions extracted by the learned Special Judge in the impugned order as well as the imputations attributed to the petitioner as extracted in paras 5 and 6 of the complaint, in my view, clearly attract the ingredients of section 499 IPC punishable under section 500 IPC.
11. In view of the above material, in normal circumstances, I would not have interfered with the impugned order insofar as it relates to issuance of process to the petitioner for the offence under section 499 IPC punishable under section 500 IPC is concerned. But, unfortunately, on going through the records of the proceedings, I find that the trial court has committed a serious illegality in accepting the affidavit of the complainant in lieu of his sworn statement on oath contrary to 10 the mandate contained in section 200 Cr.P.C. Though this plea is not canvassed by either of the parties, yet, having regard to the language of section 200 Cr.P.C. which mandates the court to examine the complainant and witnesses upon oath and to reduce into writing the substance of their examination and thereafter obtain their signature, the procedure adopted by the Special Court to deal with the criminal cases relating to Elected MPs and MLAs of State of Karnataka has vitiated the impugned order.
12. In K. Venkataramaiah & others v. Katterao S. Deshpande, 2008 Crl.L.J. 1547, this Court has held that:
"10. When a specific procedure is contemplated under Section 200 of Cr.P.C., it cannot be deviated by adopting some other procedure which is not prescribed, even though it may be convenient to the complainant. The purpose of recording the substance of sworn statement by the Magistrate is to enable the Magistrate to satisfy himself of the allegation in the complaint to proceed further in the matter. Under Section 200 Cr.P.C., the Magistrate himself examines the complainant and the witnesses and records the substance of the same. The Magistrate is under 11 obligation to reduce the substance of the statement in writing which is to be signed by the complainant and the witnesses. If an affidavit is accepted, it would go contrary to the provisions of Section 200 of Cr.P.C. In my opinion, Section 200 of Cr.P.C. does not contemplate acceptance of affidavit in the form of sworn statement nor affidavit partakes the character of sworn statement as required under Section 200 Cr.P.C.
Sworn statement does not require any cross- examination nor requires a recording of the statement at the instance of an advocate. It is not an examination-in-chief, but it is the statement made before the Magistrate for his satisfaction. The filing of an affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of Cr.P.C. and it is inadmissible."
13. Further, as held by the Division Bench of this Court in the case of NAGANAGOUDA VEERANAGOUDA PATIL & ANOTHER v. MALATESH H. KULKARNI & OTHERS, ILR 1997 KAR 2091, "The section prescribes that it is mandatory for the learned Magistrate before whom the complaint is presented to examine the complainant and his witnesses and to record the substance of such examination." However the breach of this procedure is 12 held mere irregularity which could be set right by remanding the matter to the learned Magistrate for taking corrective action from that stage onwards. In the light of the above proposition of law and in view of the blatant violation of the mandatory provision of section 200 Cr.P.C., the impugned order is liable to be set-aside.
Accordingly, the petition is allowed-in-part. The order dated 27.06.2019 taking cognizance of the complaint - Annexure-A is confirmed. The order dated 31.07.2019 issuing process to the petitioner and other accused persons is set-aside. Matter is remitted to the Special Court exclusively dealing with the cases related to elected MPs and MLAs in the State of Karnataka to proceed with P.C.R. No.30/2019 from the stage of recording the sworn statement of the complainant in accordance with section 200 Cr.P.C. and thereafter proceed in accordance with law.
Sd/-
JUDGE *mn/-