Karnataka High Court
Shri N Gangaraju vs Shri Siddaramaiah on 23 October, 2020
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRL. RP NO.1426/2019
A/w
W.P.NO.513/2020 C/w W.P.NO.43480/2019
IN CRL.R.P.NO.1426/2019
BETWEEN:
SHRI N.GANGARAJU
S/O NANJE GOWDA
AGED ABOUT 52 YEARS
RESIDING AT LIG-54
KHB JTK
3RD STAGE
KUVEMPU NAGAR
MYSURU-570023 ...PETITIONER
(BY SRI.ARAVIND M.NEGLUR, ADVOCATE)
AND
1. SHRI SIDDARAMAIAH
S/O SIDDARAMEGOWDA
AGED ABOUT 67 YEARS
SIDDARAMANHUNDI
VARUNA HOBLI
MYSURU TALUK
MYSURU-570010
2
2. SHRI C.BASAVEGOWDA
AGED ABOUT 68 YEARS,
THE EX PRESIDENT
MYSURU URBAN DEVELOPMENT AUTHORITY
JLB ROAD
MYSURU-570005
3. SHRI D.DHRUVAKUMAR
AGED ABOUT 60 YEARS,
THE PRESIDENT
MYSURU URBAN DEVELOPMENT AUTHORITY
JLB ROAD
MYSURU-570005
4. SHRI P.S. KANTHAARAJU
AGED MAJOR
THE COMMISSIONER
MYSURU URBAN DEVELOPMENT AUTHORITY
JLB ROAD
MYSURU-570005
5. SHRI K.M. CHANDRE GOWDA
KAS, SECRETARY
MYSURU URBAN DEVELOPMENT AUTHORITY
JLB ROAD
MYSURU-570005
6. SHRI S.MURTHY, KAS
SPECIAL LAND ACQUISITION OFFICER
MYSURU URBAN DEVELOPMENT AUTHORITY
JLB ROAD
MYSURU-570005
7. SHRI CHIKKANANJAIAH
EX. TOWN PLANNING MEMBER
SPECIAL LAND ACQUISITION OFFICER
MYSURU URBAN DEVELOPMENT AUTHORITY
3
JLB ROAD
MYSURU-570005
8. SHRI G.MADHUSUDAN
EX. MLC NO.2241
THE SUPERIORITY OF THE ORANGE
K.R.MOHALLA, EX.MEMBER,
MYSURU URBAN DEVELOPMENT AUTHORITY
JLB ROAD
MYSURU-570005
9. SHRI A.RAMDAS, MLA
NO.1063/77A
1ST MAIN ROAD
6TH CROSS
VIDYARANYAPURA
MYSURU-570004
10. SHRI AJAY SHETH, IAS, Ex.DC
MYSURU DISTRICT
PRINCIPAL SECRETARY TO GOVT.
(BUDGET AND RESOURCES)
VIDHANA SOUDHA
BENGALURU-560001
11. SMT.AMITA PRASAD
IAS, DIRECTOR GENERAL
NPC NATIONAL PRODUCTIVITY
COUNCIL UTPADAKA BHAVAN
5-6 INSTITUTIONAL AREA
LODHI ROAD
NEW DELHI-110 003
12. SHRI RAMA NAYAKA
JT. DIRECOTR, HEALTH AND
FAMILY WELFARE DEPT
MYSURU - 570010
4
13. SHRI RANGAIAH
EX. SUPERINTENDING ENGINEER
MUDA, MYSURU -570005
14. SHRI G.M.MADE GOWDA
ASST. EXECUTIVE ENGINEER
KUWSSB, MYSURU - 570009
15. SHRI M.M. GOPAL
EX. MEMBER
MUDA, MYSURU-570005.
16. SHRI CHIKA VEERAIAH
EX. MEMBER
MUDA, MYSURU-570005.
17. SHRI SUMANA
EX. MEMBER
MUDA, MYSURU-570005.
18. SMT. SUNANDA
W/O A.PAPPANNA
HINKAL GRAMA
KASABA HOBLI
MYSURU TALUK
MYSURU - 570017 ...RESPONDENTS
(BY SRI .H.C.PRATEEK, ADVOCATE FOR
SMT.LEELA P.DEVADIGA, ADVOCATE FOR R.2;
NOTICE TO R.1 AND R.3 TO R.18 ARE DISPENSED
WITH VIDE ORDER DATED 13.12.2019)
THIS CRL.R.P IS FILED UNDER SECTION 397 READ WITH
SECTION 401 OF CR.P.C PRAYING THAT THIS HONBLE COURT
MAY BE PLEASED TO SET ASIDE THE ORDER DATED 23.08.2019
PASSED BY THE COURT OF LXXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, (CCH-82) BENGALURU IN PCR NO.27/2019
5
IN SO FAR AS IT RELATES TO ACCUSED NO.2
THEREIN/RESPONDENT NO.2 HEREIN AND ETC.
IN W.P.NO.513/2020
BETWEEN:
SRI.CHIKKANANJAIAH
S/O LATE YELEYAGOWDA
AGED ABOUT 78 YEARS
NO.456, 1ST CROSS,
HAL, 3RD STAGE,
BENGALURU - 560075
EX TOWN PLANNING MEMBER
MYSURU URBAN DEVELOPMENT AUTHORITY
MYSURU ...PETITIONER
(BY SRI.S.SARAVANA, ADVOCATE)
AND
SRI N.GANGARAJU
S/O NANJEGOWDA
AGED ABOUT 49 YEARS
RESIDING AT LIG-54
KHB JTK
3RD STAGE
KUVEMPU NAGAR
MYSURU-570 023 ...RESPONDENT
(BY SRI.ARAVIND M.NEGLUR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENTIRE PROCEEDINGS INITIATED AGAINST THE PETITIONER
CULMINATING IN THE ISSUE OF PROCESS BY ORDER DATED
23.08.2019 MADE IN PCR NO.27 OF 2019 ON THE FILE OF THE
LEARNED LXXXI ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BENGALURU (CCH 82) ANNEXURE - D AND ETC.
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IN W.P.NO.43480/2019
BETWEEN:
SRI.SIDDARAMAIAH
S/O SIDDARAMEGOWDA
AGED ABOUT 69 YEARS
R/AT SIDDARAMANAHUNDI
VARUNA HOBLI
MYSURU TALUK
MYSURU ...PETITIONER
(BY PROF: RAVI VARMA KUMAR, SENIOR ADVOCATE FOR
SMT: G.SHARADA BAI, ADVOCATE)
AND
SRI N.GANGARAJU
S/O NANJEGOWDA
AGED ABOUT 51 YEARS
RESIDING AT LIG-54
KHB, JTK 3RD STAGE
KUVEMPUNAGAR
MYSURU-570 023 ...RESPONDENT
(BY SRI.ARAVIND M.NEGLUR, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE
ENTIRE PROCEEDINGS AGAINST THE PETITIONER CULMINATING
THE ISSUE OF PROCESS OF ORDER DATED 23.08.2019 MADE IN
PCR NO.27/2019 ON THE FILE OF THE LEARNED LXXXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
(CCH - 82) (ANNEXTURE - D) AND ETC.
THIS CRL.R.P AND WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING 'B' GROUP THIS DAY, THE COURT MADE
THE FOLLOWING THROUGH VIDEO CONFERENCE:
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ORDER
The petitioner in Crl.R.P.No.1426/2019 and respondent in W.P.No.313/2020 and W.P.No.43480/2019, hereinafter referred to as "complainant", presented a complaint under Section 200 of Cr.P.C., initially against four accused persons alleging commission of offences punishable under Sections 120-B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of IPC before the Principal Civil Judge and CJM, Mysuru. The learned Magistrate referred the complaint for investigation under Section 156(3) of Cr.P.C. After investigation, a 'B' summary report was filed before the court. The complainant filed his objection/protest petition to the 'B' summary report. In the meanwhile, the special court having been constituted to deal with the matters pertaining to the cases registered or filed against the MPs and MLAs, the case was transferred to the Special Court. Thereafter, the complainant amendment the complaint and impleaded Accused Nos.5 to 18. The learned Special Judge recorded the sworn statement of the complainant and by the impugned order dated 23.08.2019, issued process to Accused Nos.1, 5 to 14 for the 8 offences punishable under Sections 120-B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of IPC.
2. Aggrieved by the impugned order insofar refusing to take cognizance against Accused No.2, the complainant has preferred Crl.R.P.No.1426/2019, whereas Accused No.1 and Accused No.7 have preferred W.P.No.43480/2019 and W.P.No.513/2020 seeking to set aside the impugned order dated 23.08.2019 and to quash the entire proceedings pending against them in Special C.C.No.979/2019 on the file of learned LXXXI Addl. City Civil and Sessions Judge, Bengaluru.
3. The contention of the learned counsel for the complainant is that sufficient material was produced before the Court to show the involvement of Accused No.2 in the alleged transaction. The office note indicated that 30 guntas of land comprised in Survey No.70/4A was already acquired and was developed by MUDA and therefore, the same could not have been possibly denotified. Yet, the vendor of Accused No.1 Sakamma filed an application before the MUDA seeking no objection certificate, though she was not the owner of the said 9 property as on that day. This application was submitted after Accused No.1 came to power as the Deputy Chief Minister. Further, referring to Ex.P.92, learned counsel would submit that much before the aforesaid Sakamma filed an application seeking no objection certificate, the land in question was surveyed and Accused No.2 had prepared a note apparently on the instructions on Accused No.1 and based on this note, the committee headed by Accused No.2 ordered for issuance of no objection certificate. This certificate confirmed the denotification of the aforesaid land and on the strength of the said no objection certificate, the property in question was purchased by Accused No.1. Thus, it is contended that there being sufficient material on record to show the involvement of Accused No.2, the order passed by the learned Special Judge refusing to issue summons to the petitioner is patently illegal and is liable to be set aside.
4. Prof.Ravi Varma Kumar, learned senior counsel appearing for the petitioner(hereinafter referred to as accused No.1) in W.P.No.No.43480/2019 and Sri. S. Saravan, learned counsel for petitioner in W.P.No.513/2020(hereinafter referred to 10 as accused No.7) while taking me through the entire records of the case, would submit that the case originally pleaded by the complainant is that the agricultural property bearing Survey No.70/4A to an extent of 10 guntas was notified by the CITB. According to the complainant, the said property originally belonged to one Smt.Sakamma, W/o.late Sannegowda of Hinkal village. In Paragraph 3, it was alleged that the abovesaid Sakamma secured permission for construction of house from the Town and Country Planning Authority, but without effecting construction therein, she illegally sold the property through a registered sale deed bearing No.4824 dated 05.12.1997 and handed over the possession of the same to accused No.1.
5. It is the submission of the learned Senior Counsel that these allegations are contrary to true facts and opposed to the very documents produced by the complainant before the Special Court. The true facts are that the property comprised in Survey No.70/A totally measured 01 acre 20 guntas. In a family partition that took place between Sakamma and her family members in the year 1950, 30 guntas of land therein was 11 allotted to the share of Sakamma. The land was later phoded and the property fallen to the share of Sakamma was assigned the Survey No.70/A, whereas the property fallen to other sharers was assigned Survey No.70/4B. Sakamma by executing a gift deed gifted an extent of 10 guntas of land to her nephew Annaiah and 10 guntas of land to her another nephew Papanna and retained 10 guntas of land. However, this gift deed was not acted upon and the entire extent of 30 guntas continued to be in her possession and the revenue entries were also maintained in her name till 2004. Accused No.1 purchased only a site measuring 120' x 80' which was the part of 10 guntas of land in possession of Sakamma. This land was never the subject matter of acquisition by the MUDA.
6. Further, referring to the very documents produced by the complainant along with his written statement, the learned senior counsel pointed out that the these documents would clearly reveal that only Survey No.70/4B belonging to one Chikkatammaiah was acquired by the Government and Sy.No.74/4A was never the subject matter of acquisition at any 12 point of time. Dilating on this point, learned senior counsel submitted that MUDA has no power to acquire any land. The records produced by the complainant would show that for the formation of Vijayanagar layout, land was acquired by the Housing and Urban Development Department. To bring home the point that the land purchased by accused No.1 was not the subject matter of acquisition by the MUDA or by the Government, learned counsel has drawn my attention to Annexure-R produced by the complainant namely, the encumbrance certificate wherein the extent of the property is mentioned as 10 guntas and the land purchased by Accused No.1 is shown as 80' x 120'. Annexure-R12 produced by the complainant discloses that this land was phoded or sub-divided in the year 1955 (23.08.1955) as 4A and 4B. The survey Tippanni which is a part of this document mentions that on the basis of possession, the property comprised in Survey No.70/4 was sub-divided as 4A and 4B. Further, referring to Annexure- R-13, the learned senior counsel pointed out that the plan for construction of the building submitted by Accused No.1 was sanctioned by the Gram Panchayath and not by the Town and 13 Country Planning Authority as alleged in the complaint. All these documents, therefore, go to show that Survey No.70/4A was not acquired by the MUDA at any point of time; but by making an application before the MUDA seeking for a sanctioned plan in respect of Survey No.70/4, the petitioner deliberately misled the Court to believe that the records relating to the sanction plan alleged to have been obtained by Accused No.1 were not available in the MUDA and persuaded the Court to hold that the accused were involved in the purchase of Government land.
7. The learned senior counsel pointed out that the application for grant of the plan was filed by the complainant under RTI in respect of 80' x 120' in Survey No.10/4. There was no application by the complainant in respect of Survey No.70/4A which was already phoded and therefore, the entire allegations leveled in the complaint that Accused No.1 has purchased the land comprised in Survey No.70/4A which was acquired by the MUDA is wholly false, malafide and does not find support in any of the documents produced by the complainant. Further, to bring home the point that what was acquired by the Government was 14 only the land comprised in Survey No.70/4B and not Survey No.70/4A as alleged by the complainant, learned senior counsel referred to the documents produced by him along with the rejoinder. These documents contain copy of notification dated 31.03.1984 which discloses that the notification was issued by the Housing and Urban Development Authority and not by the MUDA as contended by the complainant. Under the said notification, Survey No.74/4B has been acquired and compensation in respect of the acquired extent has been paid to Sri.Chikkatammaiah. This is reflected in Annexure-J, the endorsement issued by the Land Acquisition Officer, MUDA. The receipt executed by Sri.Chikkatammaiah is also produced at Annexure-K. Based on this document, it is argued that the property purchased by the petitioner, viz., Survey No.70/4A was never the subject matter of acquisition, as such, there was no basis for the complainant to seek prosecution of Accused No.1 and other accused persons for the alleged offences.
8. Further, referring to the order sheet, learned senior counsel pointed out that the learned Special Judge has failed to 15 take cognizance of the alleged offence and has proceeded to record the sworn statement of the complainant without passing any orders on the 'B' summary report filed by the Investigating Officer. As a result, the entire procedure followed by the learned Special Judge has turned out to be illegal and contrary to Sections 190 and 200 of Cr.P.C. and the settled principles of law enunciated by the Apex Court. Thus, it is contended that the impugned order and entire proceedings pending against Accused No.1 and Accused No.7 are liable to be quashed in exercise of the power under Section 482 of the Code.
9. I have bestowed my careful thought to the submissions made at the Bar and have scrutunised the material on record.
10. The whole case of the complainant is based on the premise that 10 guntas of land which was purchased by accused No.1 under a sale deed dated 05.12.1997 was developed by the MUDA as per the endorsement issued to the complainant at Annexure-R5 and therefore, the property having vested in MUDA, accused No.1 could not have purchased the said property nor could he have alienated the same by a subsequent sale 16 deed. This assertion is found to be factually wrong for the reason that Accused No.1 is seen to have purchased only an extent of 80' x 120' under the sale deed dated 05.12.1997 and not 10 guntas as alleged in the complaint. Be that as it may, on going through the entire material on record, I find that no documents are available to show that the property which is the subject matter of the sale deed dated 05.12.1997 was acquired by the MUDA at any time. On the other hand, the undisputed and unimpeachable documents relied upon by the learned Senior Counsel Prof. Ravi Varma Kumar disclose that survey No.70/4 originally measured 1 acre 20 guntas. In a family partition that had taken place in the year 1950, 30 guntas therein was allotted to the share of Sakamma and the remaining extent was allotted to other four sharers. Consequent to this partition, the property was phoded and Sy.No.70/4A was assigned to the share allotted to Sakamma and in respect of the share allotted to others, it was assigned with survey No.70/4B. The fact that this survey number was sub-divided is admitted by the complainant himself, as could be seen from the averments made in para 2 of the complaint, which reads as under:
17
"It is submitted before his highness that, the Agricultural property bearing survey No.70/4A to an extant of 10 Guntas Bounded: East by survey No.82, West by survey No.63, South by survey 70/4B and North by survey No.69 of Hinkal Village Kasaba Hobli, Mysuru Taluk, Mysuru. All the adjacent property were notified by the then CITB."
11. Even though the allegations proceed on the premise that the properties sold by Sakamma was initially acquired by the MUDA and later on, it was de-notified on the application filed by Sakamma but there is no material whatsoever to show the acquisition of the said property either by MUDA or by any other authority nor is there any material to show that the property fallen to the share of Sakamma was later de-notified at the instance of accused No.1 as sought to be made out by the complainant. The notification which is produced at Annexure-H dated 31.03.1984, clearly discloses that an extent of 30 guntas comprised in survey No.70/4 belonging to Puttaiah S/o. Bora and Nagamma W/o. Basegowda was acquired and in respect of this extent, compensation was paid to one Chikkathammaiah as per the endorsement issued by MUDA at Annexure-J. In Annexure-J, 18 it is stated that the compensation was received by Chikkatammaiah on 29.04.1989 pursuant to the award dated 29.03.1984. The receipt executed by the said Chikkatammaiah is produced at Annexure-K. These documents clearly go to show that the land that was fallen to the share of Chikkatammaiah/ Nagaiah/Puttaiah was acquired for the formation of Vijayanagara layout and not the land owned by Sakamma as alleged in the complaint and in the sworn statement of the complainant.
12. It is true that as pointed out by the learned counsel for the complainant that by executing a gift deed dated 12.12.1968 (Annexure-R1), the aforesaid Sakamma had divested of all her rights in favour of the donees namely Annaiah and Papanna. If so, the title to the property purchased by accused No.1 may become defective, but the same does not become illegal on account of the land having been vested with the MUDA as contended by the complainant. In the absence of any document to show that the property purchased by accused No.1 was the subject matter of any acquisition or that it was vested with MUDA at any point of time, there is absolutely no basis for the 19 complainant to proceed against accused No.1 or against any other officers of MUDA.
13. The complainant appears to have initiated the proceedings based on the endorsement issued by MUDA at Annexure-R5. I have gone through this document. It is a Kacheri Tippani/office note. Complainant himself had produced this document along with the complaint and the entire case of the complainant is based on this document. Therefore, it was incumbent on the special court to examine this document or to read it entirely to find out whether any prima facie case is made out to proceed against the accused. It is evident that the learned Judge has not even looked into this document. In the said Kacheri Tippani, it is observed that 30 guntas comprised in survey No.70/4B is formed into a layout and roads are formed therein and the houses built therein have been allotted to the beneficiaries. From this endorsement, it cannot be inferred that the property belonging to Sakamma has been developed into a layout or that the same is vested with the MUDA. If the developed land is allotted to the beneficiaries, Accused No.1 20 could not have purchased it from its erstwhile owner nor could he have come possession of the said land.
14. In the reverse page of Annexure-R5, at item No.58, it is noted that on the request of Smt.Sakamma, Smt. Sunanda and A. Annaiah, the file was examined and it was noticed that survey No.70/4 totally measured 1 acre 20 guntas and in order to form Vijayanagar Layout, an extent of 30 guntas in survey No.70/4B has been acquired. It is specifically noted therein that no final notification has been issued in respect of Sy.No.70/4A. This is in conformity with the submission of the learned Senior Counsel for the petitioner that what was acquired under the notification dated 31.03.1984 is the land that has fallen to other sharers which has been later sub-divided and numbered as Sy.No.70/4B. In the wake of this document, the very substratum of the allegations made in the complaint that the property purchased by accused No.1 was the subject matter of acquisition by the MUDA and that by exercising his power and influence, accused No.1 got the said property de-notified and later purchased the same and made an unlawful gain by transferring 21 the same to others stand falsified to the core. It is really unfortunate that the Special Judge has ignored this crucial document, which has resulted in blatant failure of Justice.
15. In the backdrop of the above discussions, let me now consider the allegations leveled in the complaint insofar as other accused are concerned. As already stated above, initially the complaint was filed only against four accused persons making bald and general allegations that the property which was purchased by accused No.1 was developed by MUDA and therefore, it was MUDA property which has been illegally purchased by accused No.1. But contrary to this assertion in para 5 of the complaint, it is alleged as under:
"It is further submitted that, the former Chief Minister Sri.Siddaramaiah by virtue of his political power and misuses of power has created document in the name of Sakamma and got succeeded in securing the said property. To the surprise that there was no such person by name Sakamma a fixities (sic. fictitious) person named as Sakamma and has created concocted documents accordingly and sold the same without valid and legal title as such the 22 former Chief Minister Sri. Siddaramaiah punishable under Section 120B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of the Indian Penal Code."
16. This assertion is contrary to the very notings made by MUDA in Annexure-R1 wherein it is stated that at the request of aforesaid Sakamma, Sunanda and Annaiah, the records were inspected and it was found that only the property comprised in survey No.70/4B measuring 30 guntas was under acquisition. Under the said circumstance, the allegations made against the accused being baseless and unfounded, the Special Judge ought not to have issued process to any of the accused including Accused No.1 and Accused No.7. Even before this Court, the counsel for the complainant was unable to show that the property purchased by Accused No.1 was either acquired by the Government or MUDA at any point of time or that MUDA was in possession of the said property at the time of purchase by Accused No.1. In this context, it is relevant to note that there is absolutely no material to show that the sale deed executed in favour of Accused No.1 by aforesaid Sakamma has been questioned either by her legal heirs or by any other person. On 23 the other hand, the circumstance of the case indicate that the person who purchased the properties from accused No.1 is continuing with the possession and enjoyment of the properties. This fact once again exposes the hollowness of the claim made by the complainant that the subject matter of the sale deed obtained by accused No.1 and the property alienated by him was acquired and developed into a layout by MUDA and various allottees were in possession of the said property. All these circumstances, therefore, go to show that initiation of criminal action against accused Nos.1 and 7 and other accused persons is false, baseless, malafide and vexatious.
17. It is unfortunate that learned Special Judge failed to advert his mind to any of the above aspects; instead issued summons to Accused Nos. 1 to 7 and other accused blindly and mechanically without considering the nature of allegations and the evidence produced in support thereof. The impugned order does not reflect application of mind to the facts of the case and the law applicable thereto nor does it reflect that the learned Special Judge has arrived at a prima facie satisfaction that ingredients of offence are made out against the accused for 24 issuance of summons to face trial for the alleged offences. In this context, it may be relevant to refer to the order passed by the learned Special Judge which is impugned in this petition. It is a lengthy order, most part of it consists of extraction of the contentions of the complainant and reproduction of the sworn statement given by him. The reasoning of the learned Special Judge is at paragraphs 28 to 31 which read as hereinbelow:
"28. I have scrupulously perused the complaint allegations, documents so produced and the sworn statement so spoken to by the complainant.
29. Now, we are at the stage of issuing of process against accused person as required u/s 204 of Cr.P.C. Section 204 of Cr.P.C. reads as shown:
"It is true that the Magistrate has no power to summon person merely because complaint against him has been filed. It is well established that there should be sufficient grounds for proceeding in the case of the complaint after the examination of the complainant."
30.On examination, the contents of the complaint and also documents so produced, at this stage, the complainant has made out ground so as to register criminal case against accused No.1 and Accused Nos.5 to 14. So far as accused Nos.2 to 4 and 15 to 18 are concerned, material is placed on record to proceed against them. No doubt the complainant has impleaded them as accused, but on reading the entire text of the complaint allegations as well as the documents as stated supra, no offence is made out against accused Nos.2,3,4 and accused Nos.15 to 18. So far as other accused is concerned, criminal case is to be registered against 25 them for the offences punishable u/s 120B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of IPC.
31.At this stage, prima-facie case is made out against the accused as stated supra. Hence, point raised supra is to be answered partly in the affirmative. Resultantly, I pass the following:
ORDER Register a criminal case for the offences against accused Nos.1,5 to 14 for the offences punishable u/s 120B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of IPC.
Issue process against the aforesaid accused persons, if process fee is paid.
For appearance of accused No.1 and Accused Nos.5 to 14, Call on 23-09-2019."
18. This order on the face of it indicates that the learned Special Judge has failed to advert his mind to the facts and documents produced by the petitioner. Needless to say summoning of an accused is a serious matter. As observed by the Hon'ble Supreme Court in Pepsi Foods Ltd. and another v.
Special Judicial Magistrate and others, (1998) 5 SCC 749 in paras 28.
"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion 26 as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
19. As the complainant has failed to make out any case against the accused, the summons issued by the learned judge has turned out to be a tool for harassment of the accused. Having regard to the nature of allegations leveled in the complaint and in the light of documents produced in support thereof, no prudent person can even reach a just conclusion that there exist sufficient ground for proceeding against the accused much less for the offences under Section 120B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of IPC. Therefore the entire proceedings initiated against accused Nos. 1 to 7 being illegal, malafide, and abuse of the process of Court deserve to be quashed.
27
20. Apart from the above, another illegality which stares on the face of the record is that the learned Special Judge has proceeded to issue summons to the Accused without even taking cognizance of the offences and without passing any order on the 'B' Summary report filed by the Investigating Officer.
21. A perusal of the records discloses that PCR was initially presented by the complainant on 02.06.2018 before the Senior Civil Judge and CJM, Mysore. The same was put up before the learned CJM on 04.06.2018. The relevant order passed by the Learned Magistrate reads as under:
"Perused the complaint and documents. Registered the case in PCR. Complainant has filed affidavit. Refer the matter to SHO, Laxmipuram Police Station for investigation and report."
22. The order sheet dated 03.12.2018 reveals that 'B' report was submitted before the Court on 03.12.2018 and on 08.01.2019, the complainant filed objections to the said report. Thereafter, the matter was posted to record sworn statement of the complainant. The order sheet dated 10.05.2019 which is relevant for our purpose, reads as under:
28
"Complainant present. Sri TPK advocate for complainant present. Heard Sri TPK advocate. He has also submitted that this being a case involving a sitting MLA, the case may be forwarded to the Special Court at Bengaluru dealing with the matters pertaining to the peoples representatives. In view of the same, the entire records of this case shall be forwarded to the Special Court at Bengaluru dealing with the matters pertaining to the peoples representatives forthwith.
The complainant is directed to appear before the said court on 10.06.2019."
23. Accordingly, on 10.06.2019, the complainant appeared before the Special Court and sought time for hearing on protest petition. The subsequent order dated 18.06.2019 reads as under:
"Sri. A.M.Negalur advocate files Vakalath for complainant with no objection from previous counsel.
Complainant is present. Counsel for the complainant files memo with two citations. Perused the order sheet of this case being maintained by the I ACJ, Sr. Dn. and CJM, Mysuru. It reveals that when the complaint was filed it was referred for investigation u/s.56(3) of Cr.P.C. The investigation Officer has filed B report and accordingly it is recorded in the order sheet dated 3.12.2018. Thereafter the case was posted for filing Protest Petition/objections to B report. It is noted in the order sheet that on 8.1.2019 objections to B report came to be filed by the complainant. Thereafter a case was posted for hearing on B report on 29.1.2019. Again the case was adjourned to 5.3.2019. In the mean time the case was advanced on the board on 2.3.2019. When the case is posted for orders dated 5.3.2019 it is ordered by the said court stating that "complainant is directed to give his sworn statement". The case was adjourned on subsequent dates i.e. on 1.4.2019 and 9.4.2019. On 9.4.2019 complainant has given his sworn 29 statement in part. In the meantime in view of establishment of this Special Court to try the cases against sitting MLAs and MPs this came to be transferred to this court and accordingly entire records are transmitted to this court. As already the previous court has directed the complainant to give his sworn statement and accordingly the complainant has given his sworn statement in part, the proceedings of this case have to be continued and the further sworn statement of the complainant is to be recorded.
Counsel for the complainant prays time for recording further sworn statement of the complainant. Heard, time granted. Call on for further statement of the complainant and his witnesses if any by 28.06.2019."
24. Thereafter on 28.06.2019, the learned Special Judge recorded the further sworn statement of the complainant and by the impugned order dated 10.07.2019 issued process. The procedure to be followed in accepting or rejecting the 'B' summary report is now well settled. Following the principles laid down in Kamalapati Trivedi v. State of West Bengal reported in (1980) SCC (2) 91, this Court in the case of Dr. Ravi Kumar v. Mrs. K.M.C. Vasantha and Another reported in ILR 2018 KAR 1725, has enumerated the guidelines to be followed by the courts and the Magistrate dealing with the 'B' summary report.
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25. The Hon'ble Supreme Court in a recent decision in Vishnu Kumar Tiwari v. State of Uttar Pradesh has reiterated the above principles and has further held that when the Special Judge proceeds to take action by way of cognizance by disagreeing with the conclusions arrived at in the police report, he would be taking cognizance on the police report and not on the complaint. And, therefore, the question of examining the complainant or his witnesses under Section 200 Cr.P.C. of the Code would not arise.
26. In the instant case, learned Magistrate not even considered the 'B' report; instead has directly proceeded to record sworn statement of the complainant without even taking cognizance of the offences. To justify this course of action, learned counsel for the respondent has placed reliance upon the decision of this Court in ILR 1997 KAR 1747 and ILR 1997 KAR 3447 to contend that if the learned Magistrate proceeds to record the sworn statement, he is deemed to have taken cognizance of the offence. I am unable to accept this submission in the fact situation of this case. Though the term 31 "cognizance" has not been defined under the code, yet, the concept is now well understood. Hon'ble Supreme Court in Fakhruddin Ahmad vs. State of Uttaranchal and Another (2008) 17 SCC 157, in paras 13 to 19 has summarized the law in this regard and similar exposition is made in Mehmood Ul Rehman vs. Khazir Mohammad Tunda and Others (2015) 12 SCC 420. As held therein, if the action of the Court disclosed application of mind to the suspected commission of offence, cognizance could be inferred; but unfortunately in the instant case, there is neither a formal order nor any material to suggest application of mind to the facts of the case so as to proceed in the matter. Under the said circumstances, the procedure adopted by the learned Special Judge, in my view is indefensible.
27. That apart, even in allowing the memo filed by the complainant to amend the compliant, the special Court has adopted a callous and casual approach which needs to be deprecated. Though there is no specific provision under the Code to amend the complaint, but as held by the Apex Court, in 32 appropriate circumstances, amendment could be permitted. But no justifiable ground appears to have made out in the memo filed by the complainant seeking amendment. Learned Special Judge failed to note that the prosecution was initiated against accused Nos.1 to 14 more than 21 years after the execution of the sale deed without there being any prima facie document to show that the said land was the subject matter of acquisition. Further, there being no material to show that the MUDA authorities were party of the alleged acquisition, the learned Special Judge could not have allowed the said amendment for mere asking. In this context, it is relevant to note that accused No.7, who was the Member of MUDA between 12.06.1995 and 22.05.2000 retired from service on 31.08.2000. He appears to have been made a party to the complaint solely on the ground that he had signed the sanction plan Ex.R13. As already discussed above, the said sanction plan was given in respect of the land purchased by accused No.1 which was not the subject matter of any acquisition. Under the said circumstance, no criminality could have been imputed to accused No.7. That apart the only allegation made against Accused Nos. 5 to 14 was that they 33 unanimously passed a resolution to give NOC to build residential house in survey No.70/4A in the land measuring 30 guntas. This allegation even if accepted as true would not make out the ingredients of offences under Sections 120B, 197, 166, 167, 169, 200, 417, 409, 420 and 468 of IPC, insofar as accused Nos.5 to 14 are concerned. The learned Sessions Judge ought to have noted that the allegations against these accused persons pertained to their participation in the meeting for issuance of NOC. I have referred to the said NOC at Annexure-R9. The contents of the said document clearly disclose that only after ascertaining that 10 guntas of land in survey No.70/4 was not acquired by MUDA, the said NOC has been issued. There is absolutely no illegality in the said NOC. The learned Sessions Judge without considering any of these aspects has blindly issued summons to accused No.7 to answer the charges, which in my view, is wholly illegal, unjustified and an abuse of process of Court.
28. For the above reasons, the petition filed by accused No.1 in W.P.No.43480/2019 and petition filed by accused No.7 in 34 W.P.No.513/2020 are allowed. The complaint lodged against them in PCR No.27/2019 and all consequent proceedings arising therefrom including the order dated 20.08.2019 are quashed.
Consequently, the petition filed by the complainant in Crl.R.P.No.1426/2019 is dismissed.
Sd/-
JUDGE bnv/ka