Karnataka High Court
M.V. Babu vs State Of Karnataka on 9 August, 1991
Equivalent citations: ILR1992KAR1697, 1991(4)KARLJ171
ORDER Hanumanthappa, J.
1. After going through the records on 5-8-1991, an order was passed confirming the order of the learned Magistrate passed under Section 204 Cr.P.C, which was confirmed by the Sessions Judge, Raichur. Subsequently Sri Udaya Holla, learned Counsel for the petitioners appeared and requested that he may be given one more opportunity to argue the case.
Hence, both the learned Counsel were heard.
2. Sri Udaya Holla contends that:
(i) When there is an order of injunction in favour of a person in respect of the disputed property and a complaint is made against such a person under Section 200 Cr.P.C., it is not proper for the Criminal Court to proceed with enquiry and then to issue process.
(ii) In the instant case, on the directions given to the police after receipt of complaint, police had submitted 'B' Report as required. As such the learned Magistrate should have dropped the proceedings.
Instead of proceeding with the case, process was ordered to be issued. This defect was not considered by the learned Sessions Judge.
(iii) When under similar circumstances this Court in the case of JAVAREGOWDA v. STATE OF KARNATAKA, Crl. Petn. No. 1592 of 1990 DD 21-2-1991 taking into consideration the fact of subsisting of injunction order in favour of the petitioner therein in respect of a disputed property held:
" It can be seen that the petitioner has not committed any offence as he is quarrying in his own land in pursuance of the interim order issued by this Court in Writ Petition No. 6341 of 1987. To allow the investigation to continue against him will amount to abuse of the process of the Court and it is a fit case in which the Court will be justified in exercising its powers under Section 482 Cr.P.C. to quash the FIR."
According to Sri Udaya Holla, the learned Magistrate should have noticed that the principles laid down therein applies to this case also.
(iv) Under Section 482 Cr.P.C. when it comes to the notice of this Court that the orders passed by the subordinate Courts, if resulted in abuse of process of Court, then by exercising its power under Section 482, this Court can definitely correct the same by passing appropriate orders.
In support of his case, he relies upon a Decision of the Supreme Court in STATE OF KARNATAKA v. MUNISWAMY AND ORS., 1977(2) KLJ 483 wherein it is held as follows:
" Having regard to the object of Section 227 Crl.P.C. which requires the Sessions Judge to record his reasons, which is to enable the superior Court to examine the correctness of the reasons, for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused, the High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case.
In the exercise of the wholesome power under Section 482 Crl.P.C., the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed."
For the above reasons, Sri Udaya Holla submits that the order dated 5-8-1991 be recalled, Criminal Petition be allowed and the order under challenge be quashed.
3. Whereas Sri Kantharaj, learned High Court Government Pleader, submits that there is no merit in any one of the contentions raised by Sri Udaya Holla.
4. After hearing both sides, I am of the view that the contentions raised by the petitioners do not deserve any consideration for the simple reason that this is not a case where charge was framed and then sought for its quashing. On receipt of a complaint, enquiry was directed to be conducted the enquiry and submitted 'B' report. Nowhere it is said in Section 200 or 204 Cr.P.C. once 'B' report is submitted under Section 156(3) Cr.P.C. the learned Magistrate shall drop the proceedings. On the other hard, getting information or report on the enquiry or investigation from the police is one of the modes. Even in the absence of report from the police, the learned Magistrate has got powers to hold enquiry by himself rejecting the 'B' Report. After all it is adiscretion of the Magistrate. Hence, submission of 'B' Report and its acceptance did not disable the Magistrate to take cognizance of the offence and to enquire into independently and then to proceed to issue process if a case is made out.
5. In the case on hand, on a complaint lodged, the learned Magistrate felt that it is proper to enquire into further by himself and to arrive at a conclusion whether a prima facie case has been made out or not. Then he recorded the sworn statements of complainant and the witnesses. After complying with this and on going through the complaint the learned Magistrate came to a conclusion that a primafacie case has been made out to issue process so as to secure the attendance of the accused mentioned therein. Hence, he issued process as required under Section 204 of Cr.P.C. When it was challenged before the learned Sessions Judge, after going through the papers and hearing both sides, Sessions Judge held the procedure followed by the trial Court a just one. Apart from this, petitioner did not bring to the notice of the Sessions Judge the fact of passing an order in Writ Petition No. 3512 of 1990. When that was not brought to his notice, there was no occasion for the Sessions Judge to give his finding about correctness or otherwise of the procedure followed by the learned Magistrate to issue process.
6. It is true when it comes to the notice of this Court that any order passed by any Court under Cr.P.C. is incorrect or it appears that it results in abuse of process of the Court or it is necessary to secure ends of justice, Court can definitely exercise its powers under Section 482 Cr.P.C. to prevent such abuse of process of the Court or to see that justice is secured, as laid down in Muniswamy's case, referred to above. No doubt this position continues even today as explained by the Supreme Court in its various Decisions including the latest in STATE OF UP. THROUGH C.B.I. S.P.E. LUCKNOW AND ANR. v. R.K.SRIVASTAVA AND ORS., , wherein it is held as follows:
" It is a well settled principle of law that if the allegations made in the FIR are taken at theirface value and accepted in their entirety do not constitute an offence, the criminal procedings instituted on the basis of such FIR should be quashed. In the instant case, on the basis of the said FIR the respondent and the said P.C. Saxena and Shri Sarwant Singh were charged under Sections 120B, 420, 468 and 471 I.P.C. and Section 5(2) read with Section 5{1){d) of the Prevention of Corruption Act, 1947."
In STATE OF BIHAR v. MURAD ALI KHAN AND ORS., the Supreme Court held as follows:
" It is trite that jurisdiction under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. I n exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the court or not."
In J.P.SHARMA v. VINOD KUMAR JAIN AND ORS., , the Supreme Court held thus:
" The grounds upon which the High Court Judge seems to have quashed the complaint in the instant case was the subsequent report by the CBI which had not yet been proved and considered in the background of the allegations made and secondly that some of the parties alleged to be in the conspiracy were not made parties. These are no grounds for quashing the criminal proceedings where on prima facie being satisfied the Magistrate had taken cognizance. Taking all the allegations in complaint to be true, without adding or subtracting anything, at this stage it cannot be said that no prima facie case for trial had been made out. That is the limit of the power to be exercised by the High Court under Section 482 of the Code of Criminal Procedure. The High Court in the instant case has exceeded that jurisdiction. The question at this stage is, not whether there was any truth in the allegations made but the question is whether on the basis of the allegations a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise on the allegation is not a ground on the basis of which the complaint can be quashed. The truth or otherwise of the allegation made in the complaint would be investigated at the time of the trial."
Similar is the view of this Court in BHOOPAL RAYAPPA PATIL v. MURADEVI AND ORS., 1978(1) KLJ 432 wherein it is held as under:
" At the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and that he is only to prima facie satisfy himself whether there are sufficient ground for proceeding against the accused. It is not the province of the Magistrate at that stage to enter into a detailed discussion of the merits or demerits of the case.
At this stage the accused has no locus standi to bring in his defence. All that the High Court is concerned at this stage is to find out whether the discretion used by the learned Magistrate has been used properly and not arbitrarily or capriciously."
Again in SEETARAM C.N. v. STATE OF KARNATAKA, 1988(2) KLJ 310 this Court held thus:
" Mr.Koti, however, submitted that the provisions of Section 482 Cr.P.C. cannot be invoked to prevent the investigation by the police and in support of that contention he also relied upon various discisions. It is not necessary to refer to all those decisions. Although ordinarily the High Court will be slow in interfering with the investigation by the police, but it cannot be said that in no circumstance the High Court cannot so exercise its power under Section 482 Cr.P.C. Of course, where, within the limits of the exercise of the statutory power, the police in cognizable offence, take up investigation under Section 157 Cr.P.C. the High Court will refrain from interfering in the course of investigation. There are exceptions to this broad principle of law as laid in various decisions. For instance where the facts in the F.I.R. themselves do not constitute any cognizable or non-cognizable offence and if the police proceed to register a case and take up investigation, the High Court will be within its powers to interfere with such investigation, the High Court will be within its powers to interfere with such investigation and quash the F.I.R. either in exercise of the powers of writ jurisdiction or inherent powers conferred under Section 482 Cr.P.C. to prevent abuse of the process of Court or otherwise to secure the ends of justice- In the case of R.P.Kapur v. State of Punjab where the Magistrate, before whom a report had been filed under Section 173 Cr.P.C. had not yet applied his mind and taken cognizance on the report submitted by the police, as in the case on hand, considering this aspect of quashing the proceedings under the old provisions of Section 561 -A Cr.P.C. their Lordships observed -
' It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.' Considering this aspect of the matter in the case of State of West Bengal v. Swapan Kumar , their Lordships have observed as follows:-
'An investigation can be quashed if no cognizable offence is disclosed by the FIR. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.......The condition precedent to the commencement of investigation under Section 157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably; have reason so to suspect unless the F.I.R. prima facie, disclose the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the F.I.R. does not disclose the commission of a cognizable offence the Court would be justified in quashing the investigation on the basis of the information as laid or received. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code.' Hence, it cannot be said that the procedure followed by the learned Magistrate in issuing process, confirmed by the learned Sessions Judge is incorrect.
7. Then the next point to be considered is whether in view of an injunction order obtained by the petitioner, is it proper for the Court below to proceed with enquiry or is it proper as submitted by the petitioners' counsel whether entire proceedings ought to have been quashed as done in Crf. P.No.1592 of 1990 dated 21-2-1991. According to me, it is not necessary to quash the proceedings for the simple reason that the earlier case was the one where the petitioner therein had approached the Court after charges were framed, But this case is at the preliminary stage only. Process has been issued calling upon the petitioners to appear before the Court. When they appear, definitely they will have a right to file their objections. Even they may bring to the notice of the trial Court the fact of injunction order obtained. If such an injunction order is produced, definitely the learned Magistrate would consider its applicability to the facts of the case and then proceed. Hence, in my view, the order passed in Crl.P. 1592 of 1990 has no application to this case as still the case is at preliminary stage.
8. For the reasons given above, I do not think there is any good ground to quash the proceedings as requested by the petitioners. However, it is made clear that if the petitioners appear before the learned Magistrate pursuant to process issued, the petitioners are at liberty to file objections including urging to decide the question of maintainability of the complaint. If such an objection is raised, it is hoped that the learned Magistrate would consider the same and then proceed with the case.
9. With the above observations, this petition is dismissed.