Karnataka High Court
Nagaraj Gowda (Party-In-Person) vs The State Of Karnataka on 30 January, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.8078 OF 2019
BETWEEN:
Nagaraj Gowda (Party-in-Person)
Advocate 60 years, R/at No.53, 1st Floor,
Opposite to Badavara Balaga School,
Cubbonpet, Bengaluru-560 001.
...Petitioner
(By Sri. Nagaraj Gowda, Party-in-Person)
AND:
1. The State of Karnataka
Represented by Sub-Inspector
of Police, Ashoknagar Police Station,
Bengaluru-560 001.
Represented by its S.P.P.,
Karnataka High Court Buildings,
High Court, Bengaluru-560 001.
2. Smt. Latha N,
Retd - Sheristedar,
Aged about 60 years
X Additional C.M.M., Court
Mayo Hall, M.G. Road,
Bengaluru-560 001.
...Respondents
(By Sri. H.R.Showri, HCGP for R1;
R2- Served unrepresented)
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This Criminal petition is filed under Section 482 of
Cr.P.C. praying to quash the entire proceedings in
C.C.No.34347/2018 for the offence punishable under
Section 419, 420, 465, 468, 471, 484 of IPC on the file of
the Hon'ble 5th A.C.M.M., Mayo Hall, Bengaluru.
This Criminal petition coming on for Dictation, this
day, the Court made the following:
ORDER
This petition has been filed by the petitioner-Party- in-Person under Section 482 of Cr.P.C., praying to quash the proceedings in C.C.No.34347/2018 pending on the file of V Additional C.M.M Court, Mayohall, Bengaluru for the offences punishable under Sections 419, 420, 465, 468, 471, 484 of IPC.
2. I have heard petitioner-Party-in-Person and learned High Court Government Pleader for respondent.
3. Respondent No.2 though served with notice has remained absent. She is a retired Sheristedar Chief Metropolitan Magistrate Court, Mayo Hall, Bengaluru.
4. The complaint was registered by respondent No.2 alleging that the petitioner-accused and other -3- accused persons were hired as accused in C.C.No. 52089/2016 on the file of the X Additional Chief Metropolitan Magistrate Court, Bengaluru for the offence punishable under Section 326, 307 of IPC and accused No.1 was arrested and remanded to Judicial Custody. Subsequently, the case was advanced on behalf of accused No.1 and he produced bail order by XXVIII Additional City Civil and Sessions Judge, Mayo Hall unit, Bengaluru in Crl.Misc.No.25093/2018 under Section 439 of Cr.P.C., and got released accused No.1 and subsequently, when the documents were verified, it is noticed that the order obtained in Crl.Misc.No.25093/2018 is a fake and concocted order and the said order has been produced by accused No.2 by fabricating and forging. The Court by order dated 23.03.2018 directed the Shiristedar to lodge a complaint. On the basis of the complaint, the case has been registered.
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5. It is the contention of the party-in-person that petitioner is innocent and he has not committed any offence. It is his further submission that he does not know who has produced the said fake order. It is his further submission that the said complaint filed is not in consonance with the decision of Hon'ble Apex Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2015) 6 SCC 287. No affidavit has been filed along with complaint. It is his further submission that though the complaint has been registered without investigating the case, the learned Magistrate himself has taken the cognizance without application of mind, which is bad in law. It is his further submission that on the date when the alleged incident has taken place, he was not in the station; even then, the case has been registered. It is his further submission that there is delay in filing the complaint. Though the alleged incident has taken place on 04.04.2018, the complaint is registered on 02.05.2018. It is his further submission that taking the cognizance and -5- proceeding with the matter is an abuse of process of law. In order to substantiate his contention, he also relied upon the decision in the case of MEHMOOD UL REHMAN VS. KHAZIR MOHAMMAD TUNDA AND OTHERS reported in 2015 AIR SCW 3027 and one more decision in the case of GEORGE BHAKTAN VS RABINDRA LELE AND OTHERS reported in 2014 AIR SCW 6532 and another decision in the case of FAKHRUDDIN AHMAD VS. STATE OF UTTARANCHAL AND ANOTHER reported in 2008 CRL.L.J. 4377. On these grounds, he prayed to allow the petition and to quash the proceedings.
6. Per contra, learned HCGP vehemently argued and submitted that the alleged complaint has been filed on the basis of the order passed by the learned JMFC. It is his further submission that the petitioner-accused and other accused persons have fabricated the documents and by creating the bail order of the Court, which is nothing but fraud played on the Court. Taking the said fact, in pursuant to the order of the Magistrate, the Sheristedar -6- has filed the complaint. There is prima facie material as against the petitioner-accused. There is neither illegality nor irregularity in taking cognizance by the learned Magistrate. On these grounds, he prays to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by Party-in-Person and learned High Court Government Pleader.
8. The first contention of the Party-in-Person is that the directions issued by Hon'ble Apex Court in the case of PRIYANKA SRIVASTAVA AND ANOTHER quoted supra have not been followed. In the said decision, in order to seek direction for registration of FIR and to hold the investigation under Section 156(3) of Cr.P.C., the said complaint must be supported by an affidavit. The impugned filing of affidavit is to prevent the abuse of process of law. Nowadays, filing of the false complaint and harassing persons is common. In order to make the complainant responsible and liable, the Hon'ble Apex -7- Court has directed the complainant to file an affidavit along with the complaint. But in the instant case on hand, it is alleged that the petitioner-accused and other accused persons by fabricating the bail order in Crl.Misc.No.25093/2018, got released the accused and they are knowing the said fact. The learned Magistrate has directed the Sheristedar to register the case for having fabricated the documents under Section 340 of Cr.P.C., and other alleged offences. On the basis of the Court order, the said complaint has been filed.
9. Be that as it may. The decision in the case of PRIYANKA SRIVASTAVA AND ANOTHER, an observation has been made that when a complaint has been filed by a private person and if the said complaint has to be referred for investigation, it must be supported by an affidavit.
10. But in the instant case, the case came to be registered on the directions of the Magistrate on the basis of the fabrication the bail order in -8- Crl.Misc.No.25093/2018. Hence, the above case does not apply to the present case on hand.
11. In that light, the contention of party-in-person is not sustainable in law. On the basis of the complaint the trial Court has taken the cognizance and has issued summons. As per Section 190 of Cr.P.C., court is having both option that itself can take the cognizance and proceed with the matter under Section 200 of Cr.P.C., if it needs investigation by the investigating officer, then under such circumstances, the Court can exercise the power under Section 196(3) Cr.P.C., in the case of learned Magistrate 200 (a) and after dispensing with the statement of the complainant has taken the cognizance and issued summons. There is no illegality or irregularity in taking the cognizance. A detailed order has been passed by the learned Magistrate while taking the cognizance. That itself goes to show that learned Magistrate has fully considered the factual matrix and thereafter, has taken the cognizance. In that light also, there is no illegality or -9- irregularity in taking the cognizance by the learned Magistrate. Looking from any angle, it is not a fit case to exercise power under Section 482 of Cr.P.C., to quash the proceedings. In that light, petition is liable to be dismissed as devoid of merits and it is accordingly dismissed.
In view of the dismissal of the main petition, IA.No.2/2019 and 1/2019 does not survive for consideration.
Sd/-
JUDGE ag