Karnataka High Court
Syed Zuber S/O Syed Salahuddin vs State Of Karnataka And Anr on 28 June, 2021
Equivalent citations: AIRONLINE 2021 KAR 1900
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JUNE, 2021
BEFORE
THE HON'BLE MR.JUSTICE RAJENDRA BADAMIKAR
CRIMINAL PETITION NO.200597/2021
BETWEEN:
SYED ZUBER
S/O. SYED SALAHUDDIN
AGED ABOUT 32 YEARS
OCC: DENTAL DOCTOR,
WORKING UNDER
THE GOVERNMENT OF KARNATAKA,
HEALTH DEPARTMENT,
GOVERNMENT HOSPITAL,
CHITAGUPPA,
BIDAR DISTRICT - 585 426.
... PETITIONER
(BY SRI. K.M. GHATE, ADVOCATE)
AND:
1. STATE OF KARNATAKA THROUGH
CIRCLE INSPECTOR OF POLICE
HUMNABAD POLICE STATION
BIDAR DISTRICT - 585 426
REP. BY ADDITIONAL
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2. SAKARAM
S/O. MANIKRAO CHAUHAN
AGE: 65 YEARS
2
OCC: ADVOCATE
R/O. BYE-PASS ROAD
HUMNABAD TOWN
BIDAR DISTRICT- 585 426.
... RESPONDENT
(BY SRI. SHARANABASAPPA M. PATIL , HCGP FOR R1;
SRI. A.M. NAGRAL, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO ALLOW THE PETITION AND TO
QUASH REGISTRATION OF PCR NO.16/2021 ON THE FILE OF
THE PRINCIPAL JMFC, HUMNAGAD FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 419, 420 AND 468 OF IPC
AS PER ORDER DATED 06.04.2021 AND IN PURSUANCE OF
THE SAID ORDER, THE COGNIZANCE TAKEN BY THE
LEARNED MAGISTRATE IN PCR NO.16/2021 PRINCIPAL
JMFC, HUMNABAD UNDER SECTION 190 OF CR.P.C. DATE
06.04.2021 MAY BE QUASHED AND RESPONDENT-POLICE BE
DIRECTED NOT TO PROCEED WITH THE INVESTIGATION
OF THE MATTER, ETC.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.06.2021, COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner has filed this petition under Section 482 of Criminal Procedure Code, 1973 (for short, 'CR.P.C.') for quashing registration of PCR No.16/2021 on the file of the Principal JMFC at Humnabad for the offences punishable under Sections 419, 420, 468 of Indian Penal Code, 1860 (for short, 'IPC') as per order dated 06.04.2021, in 3 pursuance of which the cognizance is taken by the learned Magistrate.
2. The brief facts leading to the case are that, the petitioner claimed to be an handicapped by birth. He claims to have approached the Government Hospital, Bidar and claimed Handicap Certificate and the certificate said to have been issued to him. He is appointed as a Dental Health Officer in the department of Health and Family Welfare by Karnataka Public Service Commission (for short, ''KPSC') as per the order dated 11.09.2015 and his name was found at Sl. No.33 as per the Selection List. The appointment order was issued by the Health and Family Welfare Department by posting his services at General Hospital, Bhalki and he was appointed under the category of GM/2B/PH. Thereafter, the services of the petitioner were placed in the Community Health Center, Chitaguppa of Humnabad Taluk, Bidar District, as per order dated 30.03.2016.
(1) The 2nd respondent, without any locus-standi to challenge the appointment of the petitioner, yet made a complaint to the Appointing Authority, disputing the Physical Disability Certificate obtained by the petitioner. Hence, the 4 petitioner was directed by the Director of Health and Family Welfare Department, Bengaluru, to undergo Physical Examination for physical disability by the Medical Board of District Hospital, Vijayapura and accordingly, he underwent medical examination and a certificate was issued in this regard. His probationary period was declared for having completed his service satisfactorily vide order dated 14.07.2020.
(2) Respondent No.2, who is in the habit of making false and baseless complaints, had filed a false private complaint against the present petitioner, though he has no locus-standi, with an intention to give mental torture and harassment and also in order to cause monetary loss to the petitioner.
(3) The 2nd respondent has also filed a private complaint against the petitioner for the offences punishable under Sections 419, 420 and 468 of IPC in PCR No.16/2021 making allegations that, the petitioner has claimed to have obtained the Physically Handicapped Certificate from BRIMS Hospital, but, no such certificate is issued by the Hospital. On the basis of the forged certificate, he secured 5 appointment; that the Medical Board of Bidar has issued an endorsement in this regard and hence, he lodged a private complaint under Section 200 of Cr.P.C..
3. On the basis of the complaint, the learned Magistrate, directed to register it as a private complaint and then, referred the matter to CPI for investigation under Section 156(3) of Cr.P.C. Being aggrieved by the this order, the petitioner has filed this petition under Section 482 of Cr.P.C. challenging the said order.
4. Heard the learned counsel appearing for petitioner and the learned High Court Government Pleader (for short, 'HCGP') and also the learned counsel for Respondent No.2. Perused the records.
5. Learned counsel for petitioner has contended that the petitioner has been appointed under 'Physical Disability' quota and that was already confirmed through the Medical Board, Vijayapura and his probationary period is also declared. He asserted that, the Respondent No.2 has no locus-standi, as he is not an aggrieved person and the petitioner's selection to the said post was in accordance with 6 law; that his Physical Disability Certificate was already cross- checked by the Medical Board at Vijayapura and found to be correct and genuine one; that the learned Magistrate has committed error in receiving the complaint under Section 200 of Cr.P.C., as the complainant has not exhausted the remedy available under Sections 154 and 155 of Cr.P.C. and that the learned Magistrate has failed to apply his judicious mind; that if there is any issue regarding genuineness of the document submitted by the petitioner, a complaint is required to be filed on administration side by the concerned department under Section 195 of Cr.P.C. and as such, the learned Magistrate has no authority to receive the complaint and to order for investigation. Learned counsel has further contended that, after receiving the complaint, the learned Magistrate has taken cognizance by applying his mind and referred it under Section 156(3) of Cr.P.C. for investigation. When the learned Magistrate has taken cognizance, he ought to have followed the procedure under Sections 202 and 204 of Cr.P.C., which he failed do so and hence, the learned counsel has sought for quashing the proceedings in PCR No.16/2021.
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6. Per contra, learned HCGP as well the counsel for Respondent No.2 have seriously disputed the claim of the petitioner and specifically contended that the complainant has complied all the requirements under law. Further, it is also asserted that the complainant/Respondent No.2 has already made a complaint to the concerned hospital and sought information regarding issuance of Disability Certificate in respect of the present petitioner. But the information provided under Right to Information Act discloses that, BIRMS Hospital has not issued any Disability Certificate and hence, the certificate produced by the petitioner for getting appointment was forged and fabricated one and on the basis of the forged document, he got an appointment. In this regard, learned counsel for Respondent No.2 has also produced certain documents. It is also contended that the matter is only at the stage of investigation and the learned Magistrate has simply referred the same and has not taken cognizance of the offences and as such, it is argued that no illegality is found in the order of the learned Magistrate and as such they have sought for rejection of the petition.
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7. Having heard the arguments advanced by the learned counsels appearing on both sides and on perusing the records, it is evident that, Respondent No.2 has filed a complaint under Section 200 of Cr.P.C. and the same was registered in PC No.16/2021 and the learned Magistrate has referred it to CPI under Section 156(3) of Cr.P.C. for investigation. The allegations made in the complaint were that, the petitioner has not at all obtained any Disability Certificate from the District Medical Board, Bidar, for getting appointment and he has produced the Physically Handicapped Certificate alleged to have been issued by the Medical Board, Bidar, which was a forged document.
(1) Further, it is to be noted here that the matter is only referred by the learned Magistrate for investigation and he has not taken cognizance. The moment private complaint is filed, the petitioner has approached this Court for quashing the proceedings. However, it is not at all forthcoming as to why the petitioner is apprehending about investigation, if the Disability Certificate produced by him to the concerned authority is genuine one.
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(2) The documents produced by Respondent No.2 clearly discloses that, all along from 2017, he made regular representations to the Department regarding the forged Certificate being obtained by the petitioner and the same is being produced. But, the Department is not taken any steps in this regard as on today. The petitioner being an RTI Activist, submitted a complaint under Section 200 of Cr.P.C.
8. Learned counsel for petitioner has first questioned the locus-standi of Respondent no.2 to challenge his appointment on the ground that, he is not an aggrieved person. In this regard, he placed reliance on the notification of KPSC, Udyog Soudha, Bengaluru, dated 09.11.2015, wherein particularly there is an specific note that, the candidates who are likely to be affected by the list, can file objections, if any. It is contended that the present Respondent No.2/complainant was not an aggrieved person, as he is not affected by the list. But, Respondent No.2 is not challenging the appointment of the petitioner on account of an irregularity in the appointment. But, his specific contention is that the petitioner has obtained employment on a forged Disability Certificate and that is the crux of the 10 matter and required to be considered. Hence, the clause in notification that, the affected candidates by the list can file objections, does not bar the present Respondent No.2/ complainant from challenging it.
9. Learned counsel for petitioner argued that, the learned Magistrate has committed a blunder in referring the matter after taking cognizance. He argued that, when the learned Magistrate applied his mind, it amounts to taking cognizance. It is necessary to consider the order of the learned Magistrate on the private complaint dated 06.04.2021 submitted before him and it reads as under:
" Complainant present.
Complainant has presented the complaint under Section 200 Cr.P.C. for alleged punishment under Sections 419, 420 468 of IPC against the accused. Perused the records and satisfied for investigation is necessary. Hence, office is directed to register the PCR and case is referred to CPI, Humnabad under Section 166(3) of Cr.P.C. for investigation and submit the final report.
Call on by 29.06.2020-21.
Sd/-."11
10. The endorsement of the learned Magistrate discloses that, he has perused the records and satisfied that investigation is warranted and therefore, he directed to register a private complaint as PCR and referred it to CPI, Humnabad under Section 156(3) of Cr.P.C.
11. Learned counsel for petitioner harping on the fact that the learned Magistrate has endorsed that he perused the records and satisfied that investigation is necessary and therefore, it amounts to taking cognizance. In that context, he has placed reliance on the decision of the Hon'ble Apex Court in Criminal Appeal No.781/2012 dated 19.03.2015 (Mrs. Priyanka Srivastava and Another Vs. State of U.P. and Others). He argued on the basis of this citation that the petitioner was required to exhaust the remedy by approaching the Police under Sections 154 or 155 of Cr.P.C. and all the details should have been incorporated in an affidavit. But, the said decision does not say that, before filing a private complaint, approaching the police is mandatory. He has invited attention of the Court that, prior application under Section 154(1) and 154(3) is necessary. But, the Hon'ble Apex Court in the said decision has simply 12 said that, while filing affidavit, the details in this regard shall be spelled-out. It is further observed by the Hon'ble Apex Court that, application/complaint under Section 156(3) Cr.P.C. to be supported by an affidavit, as largely it is being misused. In the instant case, an affidavit in support of the private complaint is already filed. Further, the records also disclose that the complainant has made correspondence with the Government Officials for initiating action. But, no steps were taken by the concerned department. When the complainant has filed an affidavit under Section 156(3) of Cr.P.C. by complying the principles enunciated in the above cited decision, the said citation does not come to the aid of the petitioner in any way. He further placed reliance on the decision reported in (2013) 5 SCC 615 (Madhao and another Vs. State of Maharashtra and another), wherein the Hon'ble Apex Court had an occasion to deal with Sections 200 to 203 of Cr.P.C. It is observed in the said decision that, once the Magistrate takes cognizance and embark on the procedure under Section 200 to 203 of Cr.P.C., he cannot refer back to pre-cognizance stage and avail benefit of Section 156(3) of Cr.P.C. But, in the instant case, the Magistrate has not taken cognizance and he has only 13 expressed his view that there is sufficient material to order for investigation and that does not amount to taking cognizance. This view is fortified by the decision of the Hon'ble Apex Court reported in (2011) 3 SCC 496 ( Mona Panwar Vs. High Court of Judicature of Allahabad through its Registrar and others). In the said decision, the Hon'ble Apex Court has observed as under:
"HN-B. Criminal Procedure Code, 1973,-
Ss..156(3), 200 and 202 - complaint before Judicial Magistrate under S.156(3) ,- Options available to Magistrate, while dealing with - Held, Magistrate has mainly two options available on such complaint
- One, to pass an order as contemplated by S.156(3) - Or second, to direct examination of complainant upon oath and witnesses present, if any, as mentioned in S.200 and proceed further with matter as provided under S.202 (Paras-18 and
23)"
(1) So, it is observed that "taking cognizance of"
means cognizance of an offence and not of the offender. It is further held that, taking cognizance does not involve any formal action and indeed action of any kind, but occurs as soon as the Magistrate applies his mind to suspected commission of an offence. It is further observed that 14 Section 200 Cr.P.C. contemplates that, a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any. It is further held that, normally three courses available to the Magistrate that he can either issue summons to the accused or enquire into the case under Section 202 of Cr.P.C. or to dismiss the complaint under Section 203 of Cr.P.C.. It is further observed that, "cognizance" therefore, has reference to the application of judicious mind by the Magistrate in connection with the commission of offence and not merely the Magistrate learning that some offence had been committed. In the said decision itself, the Hon'ble Apex Court in Para-19 has further clearly observed that, when the Magistrate had applied his mind, only for ordering investigation under Section 156(3) of the Code or issuing warrant for the purpose of investigation, he cannot be said to have taken cognizance of the offence. Exactly in the instant case, the Magistrate has only applied his mind for referring the matter for investigation under Section 156(3) of Cr.P.C. and he specifically states that the matter requires investigation and hence, it does not amount to taking cognizance. As such, in 15 view of the observation of the Hon'ble Apex Court in Mona Panwar's case referred above, it cannot be said that, mere reference also amounts to taking cognizance.
12. Learned counsel for petitioner further places reliance on the decision of this Court reported in ILR 2019 KAR. 3673 (Yakoob Sharief Vs. The State of Karnataka by Chkkaballapura Town Police Station and another). But, the facts of the said case are entirely different, wherein the said case, the Magistrate has applied his mind and then referred the matter and wherein, in the absence of complaint, he made an endorsement that, perusal of allegations made in the complaint reveal that accused has committed offences under Sections 323, 324, 420, 409 of IPC and then ordered for reference under Section 156(3) of Cr.P.C. But, in the instant case, the learned Magistrate has not observed regarding prima facie revealing in respect of accused having committed any offence. But, he simply states that the matter requires investigation and therefore, referred it to CPI. Hence, the principles enunciated in the said decision do not have any relevance.16
13. Learned counsel for petitioner has further placed reliance on a decision reported in 2020(3) Crimes 216 (J & K) (Sami-ullah Naqashbandi Vs. Sadaf Niyaz Shah), wherein, again the procedures under Sections 200, 202 and 203 were discussed. But, in view of the observation of the Hon'ble Apex Court in Mona Panwar's case referred above, the principles enunciated in the above cited decision, have no relevance to the facts and circumstances of the case in hand. This fact is again fortified by the decision of the Hon'ble Apex Court reported in (2018) 5 SCC 557 (Manju Surana Vs. Sunil Arora and Others) relied upon by the learned counsel respondent, wherein in Paragraph-17, the Hon'ble Apex Court has clarified the position in this regard. It is observed that the word 'Cognizance' indicates 'the point when a Magistrate or a Judge first takes judicial notice of an offence'. This is different from initiation of the proceedings. Further, it is held that, the Magistrate, who has taken cognizance of offence under Section 190(1)(a) of Cr.P.C., must not only have applied his mind to the contents of the petition, but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of the Chapter- proceedings under Section 200 17 and thereafter, under Section 202. It is further specifically observed that, however, when the Magistrate applies his mind, not for the purpose of proceeding under the subsequent Sections of 202 and 203 or 204 of Cr.P.C. but, for some other kind i.e., ordering investigation under Section 156(3) of Cr.P.C. or issuing search warrant for the purpose of investigation, he could not be said to have taken cognizance of the offence. Hence, Manju Surana's case which followed the principles of Mona Panwar's case is again clarified that, when the Magistrate applies his mind only for the purpose of referring the matter, it does not amount to taking cognizance. Hence, the citations relied upon by the learned counsel for petitioner, in this regard, have no relevancy and in view of the decision of Hon'ble Apex Court in Mona Pawar and Manju Surana, the decisions relied by the learned counsel for petitioner, have no applicability to the facts and circumstances of the case in hand.
14. The learned counsel for petitioner has also relied on the decision reported in 2020 (3) Crimes 216 (J & K) supra. But, the facts are entirely different and in view of 18 decision of Hon'ble Apex Court referred above it has no applicability to the case on hand.
15. In the instant case, learned counsel for Respondent No.2 has also produced the letter issued by BRIMS dated 18.03.2017, wherein it has been specifically stated that, the said Institution has not issued any Disability Certificate in favour of the present petitioner. Hence, when the petitioner has obtained fake certificate and obtained employment on particular fake certificate, subsequent reference to Vijayapura Medical Board, has no relevancy, as he has obtained employment on the fake certificate and that is required to be considered. The other ground regarding the Respondent No.2 is in the habit of lodging complaint as against his brothers and his parents and earlier complaint being quashed etc., has no relevancy. Considering the facts and circumstances of the case, the learned Magistrate has not at all taken any cognizance and he has simply referred the matter and now it is for the Investigating Officer to investigate the matter and take appropriate steps. Hence, further, if the petitioner has not at all obtained any fake certificate, there was no need for him to apprehend for 19 anything and he can co-operate with the Investigating Agency in this regard. Instead of doing so, at the final stage, he wants to curtail the right of the complainant/Respondent No.2 to go for investigation and close the proceedings. The petitioner is required to co-operate with the Investigating Agency in this regard.
16. Looking to these facts and circumstances, question of quashing private complaint proceedings does not arise at all, as no prejudice will be caused to the petitioner in this regard. Hence, the petition is completely mis-conceived and devoid of merits, and it needs to be dismissed. Accordingly, I pass the following:
ORDER The petition is dismissed.
Sd/-
JUDGE KGR*