Karnataka High Court
B Bhasker Rao vs Adarsh Shetty on 27 January, 2010
.1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27?" DAY OF JANUARY 2010,-.__
BEFORE
THE HONBLE MR. JUSTICE K.N. A-
CRIMINAL PETITION NO...1E656/'2{§G6::'_fv»
L
1
B BHASKER RAO
S/O B SUBRAYA
AGED ABOUT 46 YEARS V'
OCC: RANGE FQEEST QFF£CER"
KARKALA RANGE, }~';ARKA;LA 'I-'ALUK
UDUPI DISTRICT " * * " .
H PARAMESHWARA
8-/0 .T1f}*IAEMNiiAPPP~ .H0BLIDH_AR
AGED ABOUT. 50..YEARS_'
OCC: ~
cH;RKoDY_ SECTION
HEBRI RANGE, P.wQ.: HALUVALLI,
, ..HALUVALLI VILLAGE
, UDUPI TALUK Am) DISTRICT
P S}{EbHAR
" -- S/o~1;Ar_rE. SRINIVAS
~ Ac-ED ABOUT 34 YEARS
o,cc": EORESTER
SHANKARANARAYANA SECTION.
" SHANKARANRAYANA RANGE
PLO SHANKARANRAYANA
A KUNDAPUR TALUK
' UDUPI DISTRICT
B VASUDEVA
S / O LATE ANANTHA
AGED ABOUT 52 YEARS
OCC: FOREST GUARD
SALIGRAMA BEAT
UDUPI RANGE.
UDUPI TALUK AND DISTRICT
JAYARAM SHETTY
S/O NANDYAPPA SHETIY
AGED ABOUT 40 YEARS
occ: FOREST GUARD ._
HEBRI BEAT, HEBRI RANGE, "
13.0 HEBRI
KARKALA TALUK
UDUP1 DISTRICT
SUBRAYA @ NAGESH
s/0 LATEDASAPPA ,
AGED ABOUT 49 YEARS' V_
occ: FoR;«is:.sT GEJARD "
1\.v:*EGIi§I'i;_1éEA:r. * 1'
a_KOLLUR[_W1LD LIFE _'§<AN_G1§;
P..o'--KoI.LU.'R._ '
KUNDAPUR TAI_.U'K__,
UDU131TD1s2'_RIC;T PETITIONERS
(xrayjskr; H s DRAMOULI, ADV.,)
S./AOSANJEEV SHETTY
" AGED ABOUT 31 YEARS
C mTU
KENJOOR POST
" UDUPE TALUK AND DISTRICT A
if
./'4
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2 THE STATE OF KARNATAKA
BY THE POLICE OF
BHRAMAVARA POLICE STATION,
UDUPI TALUK AND DISTRICT
(BY Sri. c H JADHAV, ADV., FOR R1' _ _
SR1. B. BALAKRISHNA, HCGP FOR R2) « 4'
F.
THES CRLP. ES FILED _U/S 48121'gimp.o','--v,iéRmr1i\;§§~-.fi*o~_
SET ASIDE THE ORDER v'OF._V ISSUANCE ='Q'F_j.I.?RO_CESS__i»
DT.2.3.2006 EN c.c.No.1145'/2006 {P.c..No.te92;i2o04) ON
THE FILE OF THE ADDL. C.JV"[JR.x1);wT} UDUPE,
AND TO QUASH THE ENfI'IRE=tP'RQCEEDINGS Ai'\TD ETC.,
TI-HS PETITION 'e%QMiN.o;" 'i?'OR--.HEAR1NG THIS
DAY, THE COURT FoLL<3iv1N§;----:"'
O R A
under Section 482 of Cr.P.C.,
the petitioners.'he1'e:in--_:i_héve Sought for quashing the
ori1;r1i'11a1 oroeeeeiings initiated against them in C.C.
on the fiie of Additional Civil Judge
Udupi.
" The petitioners are ali the officers/officials
'WOifI{ing in the Forest Department of Government of
it ___Karnataka. At the relevant point of time they were all
X,
E
J L
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working in Udupi District. Respondent No.1 Adarsh
Shetty presented a Private Complaint under Sectioii--.2OO
Cr.P.C. before the learned Magistrate
petitioners herein alleging offences K it
Sections 323, 330, 341, 346, 4:55;§69;'r«_5e6;tg':i--43g'rigs
r/W 149 of IPC and Section _"/"'2 off'--the. Karnéttaka
Act 1963. On presentation""of_V'lthe said jcoinpylaint, the
learned Magistrate :« cornplaint for
investigation under Segctionfllt§6Ej3}h' and to
submit a reference, the
jurisdictionfifg__Poi:ic'e a case and took up
investigation. ' ..[AfAter'V'con3.pleting the investigation the
police. fi1ed4T(B--report) stating that there are
no" tovvlllinddicate that the petitioners have
of the offences alleged in the complaint
as""4--suci'1'-there are no grounds to file charge sheet.
i\3'otieeV"*'of 'B' report was served on the complainant.
"Thereafter the complainant filed protest petition inter-
"alia contending that the investigating officer has not
ft»
conducted proper investigation nor has collected the
evidence. therefore sought that the final
rejected and cognizance for the offences alleged
against the accused persons ar1s:'z't"ncyt proceededfwitig
further.
3. Upon filing of the learned
Magistrate by his detaiied 28.10.2005 took
cognizance of the offer1Q«es"'a1i-eglggi'tinVoithetficomplaint and
posted £:1.1.§ _:'..en.gVtijir;jztVv:'W;'I'hereafter sworn
staternent' well as some of the
witnesses ' were recorded. By order
dated 2.3.20060'théefllearned Magistrate held that there
are'?-sufficient groirnds to proceed against the accused
'ar1'dVth.erefore directed registration of criminal case in
Register 'against accused Nos.1 to 6 for offences
puntishsable under Sections 143, 147, 323, 330, 341,
V' 465, 469, 506 r/W 149 and Section 72 of the
Kgarnataka Forest Act, 1963 and ordered issue of
6
process to the petitioners herein. it is thereafter the
petitioners presented this petition under Section of
Cr.P.C. seeking to quash the criminal _
initiated against them inter--alia the 'the.. V'
learned Magistrate has taken
without applying his judiciou.s..Inir1d"and
passed by the learned for taking
cognizance and the"'--..o'therp. of process are
unknown to crim,ir'ial-- a case of this
nature, the made in the
' collected by the Police
during" produced along with final
report._ did ..,not.'" indicate any offence having been
corntniittted the petitioners herein, the learned
pi'o~ceeded to take cognizance, as such taking
of"'««.cognizance is bad in law, and that the learned
.Magistrate has committed serious error in holding that
' '._th'e'alleged acts do not attract the provisions of Section
" of Cr.P.C. r/W Section 114~«A of the Karnataka
7
Forest Act and the order of the learned Magistrate in
this regard has the effect of foreclosing the defence of
the petitioners in this regard and that the_.j'~1eaij::ed
Magistrate has failed to notice that the *
after thought and as a if
registered against him by these;-_?et:i'tio1\'%l\§.,,fi§r
forest offences and it is :__a' 'Wlreak"'l
vengeance against vttie petitilo"p.--ersc,.. 'eonfpiainant
presented the complaint' and frivolous
allegations, there-forefizlithieVii/Iagistrate ought to
have r'ejected:¥t_he bvlaccepting the final report
submitted " by' as such the criminal
proceedings.' initiated" against the petitioners require to
. _be._q1;agheéi:gg' .....
A service of notice of this petition,
respondent No.2 is represented by the learned
it v~:lf'*/tdditionai Government Pleader while respondent No.1 is
represented by Sri. C.H. Jadhav, learned counsel. I
/3
have heard both sides. Perused the records of the court
below.
5. The principles relating to the exerc.is_e of
jurisdiction under Section 482 of
complaint and criminal proceedings are
catena of decisions of the Apex'JC'oi}1'rr,
Oil Corporation Vs. M/s NEPC
in AIR 2006 so 2780, the Court._afte.rref;errir1g to A
its several earlier decisions_«'on_ point hasset out the
relevant principles to be 'Iby the Courts
while V'1.,'ex:3r*ci.sing'-.._jueri's.dicti'on under Section 482 of
Cr.P.C- "1~-hose relenantiiprincipies as enumerated by the
_ Apcii; Court in thi.s____decision read as under:
'4._'f9. principles relating to exercise of
._ under Section 482 of the Cr.P.C. to
complaints and criminal proceedings
"h_ai)e been stated and reiterated by this court
it in several decisions. To mention afew I xxx
-- xxx xxx xxx xxx I The principles, relevant to
4
our pLU'pOS€ CUP.'
9
{i} A complaint can be quashed where
the allegations made in the complaint, even if
they are taken at their face value and
accepted in their entirety, do not prima
constitute any offence or make out the
alleged against the accused.
For this purpose, the"'co'mplain.t«'has_
be examined as a whole,.'_Al"but'*«
examining the rner'its~.._V of the Valiega.1';ions._.3
Neither a detailed nor ta.
analysis of the of
the reliabilityk' or i' of the
allegatio;*isV__ in the be warranted
whiiebvprayer for quashing of a
=
u{ii)V'b "A .Vco_r:1plair1t may also be quashed it is a clear abuse of the process of the it vveourt,as when the criminal proceeding is to have been initiated with mala ' .. fi;_ies/ malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. /' ll dfierent from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for whit-:_fi' civil remedy is available or has been 'V' is not by itself a ground to quash proceedings. The test'; arl9tetiie--r:_': '-the g A allegations in the Vco1n1iV)laii':_t 2 criminal offence or not A' A ii i
6. in some of the subseqnent decisionsfiithe Apex Court observed that 482 of Cr.P.C. should be exercised ,s'p'ari:i1g1ye_"a_ndV circumspection and ,on1y'Aini.5'V.rarest_o1=..'_'rare. cases. However, in Sam Mittalip/s %GavVerrim'e_nTt"of Karnataka the issue as to whether the expression "the rarest of rare cases" is i " .afjpVrofSi'iéteé_whilellllefirercising power under Section 482 of for consideration and since there was differences" of opinion among the iearnecl Judges nconstitnting the Bench, the matter was referred to a Bench. ' The larger Bench of the Apex Court 5%/M 1') answered the said issue observing in its judgment which is reported in (2008) 3 SCC 574 thus:
"9. When the words "rarest of rare cases" are used after the words 'sparingglyf-.._4tt'-.. and with circumspection' while describi1_1g"the scope of Section 482, those words__rnerely t emphasise and reiterate what be conveyed by the words it-A circumspection'. 'I'tieyt'rneantt'i'hat under Section 482 tttprocetediings should not be Lusect or routinely, but with care a clear case for q_u'ashing"'is* '.artci"tjt."ailure to interfere to a {miscarriage of justice. expressiori. of rare cases" is not used in the [sense " in which it is used with »*'-ireference A' io.,_pul:1ishnient for offences under it IPC, but to emphasise that the wiciier Section 482 CrPC to quash the FIR. criminal proceedings should be used sparingly and with circumspection. it ' Judgments are not to be construed as statues. "Nor words or phrases in judgments to be interpreted like provisions of a statue. Some .14 to whether or not exercise of power under Section 482 of Cr.P.C is warranted. H
9. The allegations made in the are as under: it it On 14.8.2004 the Naveen Das Setty & Pratap Kenjoor Village went to p.m.VV to attend the foaziujinatvV"irieravanige"
organized by térahmavar in C0mmemota.tioij; '_of_ The said procession about 1013.111 and at about 11.00p'.Iuii.,'_4 the bus stand at Brahmavar \Az_t1§:3',re'a pubiic-m_e_etting was held and the meeting ended ' ;aroun,d'~tI:2rin__the mid night. After the public meeting was oveifojjthe complainant ieft Brahmavar in his Maruti to go back to his house along with A .f_* AAVNé.v_eendas, Pratap Shetty and his niece Kum. Nireeksha ' aged about 12 years. At about 00.45 31.111. of 15/8/04, 15 when they approached the junction of Kenjoor and Muddur road, a group of people one among accused No.2--Parameshwar. who were sta1id'ingi.ai: tiiat spot with road blocks, kept their'jeep"._in_:.i"ront complainant's car and forcibly complainant. Immediately. the it s'ai_d r Fiaranieshwar V V snatched the key of ,th.e carvvancl dragged him out of the car him into their jeep. fl' along with few other uniform drove the No.1 himself drove the jeep after a kilometer's journey they'stopped-.the"jeep and forcibly made the small girl to get down from the jeep in a Thereafter the complainant was badly bea't.en..."'iI1side the jeep and again after further 200 mr3ters""of journey at about 1.10 a.m. accused No.1 "'-stoppetl the jeep and forcibly made Naveendas to get "tlowra. near Satish Grocery shop at Kenjoor. From there 16 the complainant was taken to Hebri Range Forest Qffice where all the accused 1 to 6 started complainant and caused him injuries reasons and they also started abusing and were asking as to Why he and threatened him to get 2.30 am. one Mr;:s.1;anieer eieeg the cornpiainanfs brother' Carrie to I-Iebri Range Forest Shankar Shetty requested. permit him to meet the permit him to do so.
At time' as per the directions of accused "took." the complainant to his chamber was to Walk due to assault and on I Shankar Shetty, accused Nos} 8: 2 told that .-itheyi' have brought the complainant for some as in_teIrogation and that they will permit the complainant to 'go home in the morning. Therefore, immediately the "said Shankar Shetty and others ieft Range Office while @/ 17 accused Nos. 1 8: 2 along with others went out in the jeep and around 4.a.m the accused brought three others with them namely Karunakar Poojary, Stlresh Acharya and Umesh Acharya and immediate}y:"sFiifted all those people along with the con34'p1ainan't'i Seethanadhi Depot and wrongfully'--c.o'r1fine-tiDDV't1fier11.'.in small dark room Where complainants signature startedtt preparing document;-§,~..V_at tiin.e thevcornplainant came to know that :heVa¢pct1'séa' to fix him up and smuggling case. On 15.8.2OQ4"at a lady by name Marnatha Pat]§argpan'4Ofticer the Karnataka Forest Department faecusedWi§Io.1 and represented that she has call to the effect that the witnesses Sahthos}1~.':'Shetty and Sharath Shetty have come to !-Iebri Forest Office. Immediately Accused No.1 went out D all papers and returned back to Seethanadhi Depot M ea 9.00 am. On 15.8.2004 around 3.00 p.In., shaifitskar ./J 18 Rao -- accused No.1 driving his car followed by Department jeep with the compiainant and threewcthers took a new Road from Seethanadi Depot in route to Udupi. After a long journey of hours Vehicles reached Udupfi;
Seethanadhi Depot to Uduipi over thus the accused deliberately toga; rout just to keep othefsyn secret. The complainant and taken to the residence of._.'thew1eari:eci_Mag_istrateand before reaching the they were threatened by the accused not anything to the Magistrate against therni"1.£ccordingly, they were produced in the learned Magistrate at about 5.45 p.m., in I the false case foisted against them in F1a.Np'.2.1fi/2004-05 for the offence punishable under ..Sections 84, 86 and 87 of Karnataka Forest Act. On bfaccount of the threat given by the accused, the "fcomplainant and others did not utter anything about , ;:
« 19 the torture suffered by them before the learned Magistrate when they were so enquired by the IL-"zirned Magistrate and on that day they were Judicial Custody till 16.8.2004. Thodghttlieyvvinprirexeit remanded to Judicial Custody?tod:ti'iei'1§ and shock instead of immediateélyp_takir1g_.t--hern jail at Udupi, the accusediiyitoiok _thefx1..again.':'to Range Forest Office, where pfingert prints were obtained and signatures:i'_we1h'e blank papers and apart 'the complainant and othersHiifere:i,5a1so;'3.4tai§eh--_' by iteeping some wooden logs infrontezf "thei:1_._d :Atidthia't'«point of time the compiainarit reaiized th4atV.:he~~alohg iéidrith others have been trapped in " apfiand aeetised have built up false documents. :'I'here'after the*'cornp1ai.nants and others were taken to su'o~ja.ii'atT"'about 7.15 pm. where they were detained. ..,A,e_eordihg to the complainant, the accused harassed tortured him just to please their political god it '' "fathers and for their personal gain and the 20 complainant's political rivals have been openly proclaiming they vvill implicate him in a criminafcase and likewise similar attempts were made the past several months and this time the complainant in a false criminal case. The xvitnskssesp who appears to be the attestor:s*--ito the falsely created in a forest political rivals and they are also of foisting a false case also learnt that in and criminal interityiorhl played by them very tactful1y,_ 4' to the complainant, all the accgused misivused their power and forgetting themselves beitfia have committed the criminal ._ac}_ts; "'Thj_1s{l'V'according to the complainant, the accused formed 'themselves into an unlawful assembly sharing a ncoymrrion object and in prosecution of common object also in furtherance of the common object 'lllwrongfully restrained the complainant and confined him {'3 23 should proceed to record sworn statement of the complainant and other witnesses to find out has to Whether the allegations made in the complain~t:l'~are prima facie true and correct and then to Whether there is sufficient gro11.nd_'to V' the persons named as accused \\ E8. It is now Well that__ll;co"gI"1lZ;ance" V means taking n0tlce.__ of gtheV:.."Qffe'nces' alleged in the complaint and to satisfy'. to whether the for taking' n.ot'i'c'e offences. It is for that purpose the leavrn_ed_ appears to have passed a order"-'o11____g28.10.2005 while taking cognizance ' ifor. gth_e'~io'ffe'n.ces alleged in the complaint. However, "strangel§i'ei§ough in this order itself learned Magistrate proceeded to record a fmding that though the persons A.:Via'n:1ed as the accused in the complaint are all public lfiservants, being employees in the Forest Department, gal/' 24 since the alleged act are not in discharge of their official duties. prior sanction under Section 197 of Cr.P.C is not necessary. Once again while passing the ord--;_r~.._0n 2.3.2006 after recording the statement and his witnesses on oath, the learned" Magistrate 1'e~?"
iterates his earlier View that obtaini_ngi'of'»prioi' under Section 197 of Cr.I3'.C_"'is not '-necess,3i_y£,..,E.I\ren as» ' per the averments made persons named as accused in'the* public servants. As per the a1iegatio:j'smrna.de'"in,_thVe1-complaint, a case had been r'egistered against the complainant for Various offence'sVVpunis1i.a'o;ied»under the provisions of Karnataka Forest 14». In 'the case of P.K.Pradhan Vs. The State . jgsf by the C.B.I reported in 2001 Crl.L.J gqnvestion that arose for consideration was what. act.Vconstitutes an act committed in discharge of " "gificialddd duty warranting sanction under Section 197 of I;
25 Cr.P.C. In fact in this decision the Apex Court has held that the question as to whether sanction under Section 197 of Cr.P.C. is necessary can be raised at ar1jt:4llti;.ne._ may be immediately after the cognizance o_1:"irari1i.n_g:..pofp_ charges or even at the conclusion of«aft_er conviction as well. It is further observed-A.in tl'le..__S%ji_€l decision that there may be 'certain. casesii'fs§viA1;ereVVit.3 may-'_* not be possible to decide the__t{ne_sttion without giving opportunity to""theAdefelncetoi establish that What he did was in _discha;«ge\ In order to whether claim of the accused, that the act in" course of the performance of hissduty was reasonable one and neither pretended nor can be leiaamined during the course of trial by :gi.v:i_ng.l.lo.pport,unity to the defence to establish it. In such an eventuality, the question of sanction should be ..ie,f_t open to be decided in the main judgment, which l be delivered upon conclusion of the trial. 26
15. Under these circumstances at the stage of passing orders regarding taking cognizance or for issuing process, the learned Magistrate"_iiras44:'w'i.not required to record a finding as to whether alleged are ail committed whi1e:v'd»ischarg'i_ng' or are outside their official_ acts..gand whether" ¢:?1i«§t sanction as contemplated Sectior1""li}i7 Cr.P.C., is necessary. The is$§ne_ haire Sheen kept open to be agitated defence. The finding of regard has the effectlof defence of the accused.
Such a«fuinding._is and the learned Magistrate could. not such a finding at that stage. In ad'ditiori "to ddddd 'learned Magistrate has also not provisions of Section l14--A of the Forest Act w_l1ic,ii~" also contemplates obtaining of a prior .sarictio-n of the State Government before initiating any or prosecution in respect of the acts done by the " *'-"forest official under the colour of duty. According to /1 <1 27 this Section in any case of alleged offence or of wrong alleged to have been committed by any Forest Officer by any act done under colour or in excess of any such-._duty or authority under this act, or wherein it sha11._appe:ar to the court that offence if committed was of aforesaid, the prosecution except with the previogusé sanction the Government. Effect of this prV.o:Vision Vhasnot all been considered by the learned
16. ';reference has been madejby" that they were produced before iearned_v"lxffagistrate at about 5.30p.m on infdconnection with the case registered in for the offence punishable under as and 87 of Karnataka Forest Act, 1963, the learned Magistrate during the course of the lengthy passed by him appears to have not made any endeavour to find out as to what were the allegations 5'?
28 made against the complainant and as to whether it has any bearing on the aliegations made in the present compiaint and in the background of such made against the complainant whether facie case is made out to proceed against *ti1e_"acci;iseci persons named therein. Irffact btefore the.«two" orde-rs'ioVf"~ o the learned Magistrate, 'B' uhatcl'-bteeii in the present complaint bgzifhe police wherein the detaiis of the case «filed compiainant for certain fo.res,t ofifei1ce's had bee1iset""out. However, the ieamed Leaftezi vrithout referring to those m.ateri'ais"prodacedttaiohgwith the 'B' report, merely on the 'basis'u"of:ht1"1e' complaint aliegations and the sworn .stateIEf1en'te..of thexucompiainant as well as his witnesses I fto,'.ho1d that there are sufficient materials to proceed against the accused persons.
17. it is the case of the petitioner that on 14.8.2004 on receipt of credible information, the e: M
-E. 29 petitioners and others kept watch at the junction of Santekatte road at about 11.15 p.rn. a Maruti van bearing No.KA--2O 7628 came there and it..___'Was intercepted; on search of the van certain sandé1i.."wfo'od billets were found in the said van and the said being driven by the con1plainAant«. and '--nior'e persons were there in the Vehicle;__ on interrolgationl"they complainant did not produz£§~.y,anyV. to it possess the sandeije Wood " nor" 'gave any satisfactory explanation'; :_th'er:efore_:l detained in custody: l'i'l'Via,rut'i4 yan..._'was. seized and the case was registeredy against complainant herein in 1r1s;.nnt,21%/t:2oo4§eo5l'-fee the offences punishable under sedeed 87 of Karnataka Forest Act and onihe next day he was produced before the 1ea--rne__d' -Magistrate who remanded him to Judicial r.e3i_.stody: ultimately after investigation the charge sheet lfllclaine to be filed for the aforesaid offences against the l V' ""eornplainant herein. It is the further contention of the 93/ 33 explanation as to Why he did not make a complaint immediately after his release on bail. The complaint did not accompany any documents to prima facie indicate that the complainant had sustained any a result of the alleged assault on him. ., did not accompany any list of idocunieritsi complainant sought to rely. -Thewlearned not considered the delay in thecornplaint before considering as to '~.xyi1etlj.erVi_~ any case for proceeding against theflacicused, ' yd persons named as accused are all se'r__vants...uand serious allegations had been m:a*de3_.agiainstAAthe.rn«'without there being any supportive ' There has been long delay of two months in lodginggtlieliicomplaint, which had not been explained. The complainant was facing the charges against him for hi forest offences, which was within his knowledge. _.r?
(fix/.,,.v~ 35
25. in ALR 1982 SC 784 (Salt. (Dr.) Kaur Vs. Smt Kanti Khare & Others] relied upon by the learned counsel for respondent No.1 the Apex Court has not laid down any principles of law and only on the facts case found that, it was not a case for criminal prosecution. Therefoiifiitinoi si1'stenatnee can ' drawn from the said decision.
26. I Having regard tosthie 'above '-discussiori$_, the petition is allowed. oroeeeding initiated against the pe_ti'tioners' is Sd/-~ JUDGE?
Pages ~ RS/* Pages"].a4 to 35 ~ KVN*