Karnataka High Court
Shridhar S/O Ramachandra Kampli vs State Of Karnataka on 6 January, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO.102032/2015
BETWEEN:
1. SHRIDHAR S/O RAMACHANDRA KAMPLI,
AGE:56 YEARS, OCC: BUSINESS
R/O: NEAR DHOBI GHAT
VIJAYANAGAR, HUBBALLI
2. SMT.SHOBA W/O SHRIDHAR KAMPLI
AGE: 48 YEARS, OCC:HOUSEHOLD
R/O: NEAR DHOBI GHAT, VIJAYANAGAR,
HUBBALLI
...PETITIONERS.
(BY SHRI M L VANTI, ADVOCATE.)
AND:
1. STATE OF KARNATAKA,
BY PI HUBBALLI SUB URBAN
POLICE STATION,
REP. BY SPP
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD
2. PRAKASH S/O RAMACHANDRA KAMPLI
AGE: 58 YEARS, OCC: BUSINESS
2
R/O: H.NO:32, ADYAPAKA NAGAR,
NEAR VISHWANATH KALYANA MANTAPA
HUBBALLI.
...RESPONDENTS.
(BY SHRI PRAVEEN K. UPPAR, HCGP, FOR R.1;
SHRI SHIVAKUMAR S. BADAWADAGI, ADVOCATE, FOR R.2.)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
PROCEEDINGS IN P.C.NO.288/2015 (HUBLI SUB-URBAN P.S. CRIME
NO.84/2015) PENDING ON THE FILE OF PRL CIVIL JUDGE & JMFC
HUBBALLI FOR OFFENCE PUNISHABLE UNDER SECTIONS 420, 465,
468 READ WITH SECTION 34 OF THE INDIAN PENAL CODE, ETC.,.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY,
THE COURT PASSED THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in Crime No.84/2015 of Sub-Urban Police Station, Hubballi, pending on the file of Prl. Civil Judge and JMFC, Hubballi, registered for the offences punishable under Sections 420, 465, 468 read with section 34 of the Indian Penal Code, 1860.
2. Heard Shri M.L.Vanti, the learned counsel appearing for the petitioners, Shri Praveen K. Uppar, the learned 3 Government Pleader appearing for the respondent no.1-State and Shri Shivakumar S. Badawadagi.
3. Brief facts leading to the filing of the present petition as borne out from the pleadings are as follows:
4. The 1st petitioner purchases the subject property from one Shyamsundar and gets it converted from agricultural to non agricultural purpose in the year 1982. The complainant who is the brother of the 1st petitioner avails a loan in one Gurusiddeshwar Co-operative Bank and claims to have pledged the title deeds of the subject landed property. During the pendency of the said loan, the partition in the family takes place on 6.9.2007. Challenging the said family partition, the complainant files a civil suit in O.S.No.22/2014. Just before filing of the civil suit, the complainant also files a private complaint invoking section 200 of Cr.P.C. alleging the aforesaid offences. The Magistrate having referred the matter for investigation under section 156(3) of the Code of Criminal Procedure, 1973, has driven the petitioners before this Court calling in question the said proceedings pending before the Magistrate.
45. It is not in dispute that the squabble between the brothers is with regard to the partition of the property which is pending adjudication before the competent Civil Court in O.S.No.22/2014. The complainant having filed the civil suit in O.S.No.22/2014, could not have pursued the criminal complaint after having filed the civil suit. Since the entire proceedings are given a colour of crime, notwithstanding the fact that it is purely civil in nature. The proceedings, if permitted to continue against the petitioners, would result in miscarriage of justice and be an abuse of the process of the law.
6. The view of mine, in this regard, is in tune with the judgments of the Apex Court right from the case of State of Haryana and othres v. Bhajanlal and others, reported in 1992 Supp. (1) SCC 335 to the latest judgment in the case of Jaswant Singh vs. State of Punjab and another, in Criminal Appeal No.1233/2021, disposed of on 20.10.2021. The Apex Court in the case of Bhajanlal (supra) has held as follows:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under 5 Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.6
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
(Emphasis supplied) and in the latest judgment in the case of Jaswant Singh (supra), the Apex Court holds as follows:
7"15. The power under Section 482 Cr.P.C. is to be exercised to prevent the abuse of process of any Court and also to secure the ends of justice. This Court, time and again, has laid emphasis that inherent powers should be exercised in a given and deserving case where the Court is satisfied that exercise of such power would either prevent abuse of such power or such exercise would result in securing the ends of justice. In the case of S.W. Palanitkar and others. v. State of Bihar and another ((2002) 1 SCC 241), Shivraj V Patil, J., in paragraph 27 of the report, has laid similar emphasis. The same is reproduced below:
"Para 27:
.......whereas while exercising power under Section 482 CrPC the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under CrPC, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. This being the position, exercise of power under Section 482 CrPC should be consistent with the scope and ambit of the same in the light of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive. When a person approaches the High Court under Section 482 CrPC to quash the very issue of process, the High Court on the facts and circumstances of a case has to exercise the powers with 8 circumspection as stated above to really serve the purpose and object for which they are conferred."
16. A seven-Judge Bench in the case of P. Ramachandra Rao vs State of Karnataka ((2002) 4 SCC 578), also laid down the same principles for use of the power under Section 482 Cr.P.C. in a case where the Court was convinced that such exercise was necessary for whatever reason in order to prevent abuse of the process of any Court or to secure the ends of justice. Lahoti,J., speaking for him- self and Bharucha, Quadri, Santosh Hegde, Ruma Pal and Arijit Pasayat,JJ., observed as follows in paragraph 21:
"Para 21. "... In appropriate cases, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 CrPC for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred 9 by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted.""
17. A three-Judge Bench of this Court in Gian Singh vs State of Punjab (2012) 10 SCC 303 again summarized the legal position which emerged regarding powers of the High Court in quashing criminal proceedings in exercise of power under Section 482 Cr.P.C. R.M. Lodha, J., (as he then was) speaking for the Bench, clearly observed in paragraph 61 of the report that criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. The relevant extract from paragraph 61 is reproduced below:
"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal 10 court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (in) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences.
But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different
footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony 11 relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its View, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that the criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."
18. A three-Judge Bench of this Court in Parbatbhai Aahir Alias Parbatbhai Bhimsinhbhai Karmur and others v. State Gujarat and others ((2017) 9 SCC 641) laid down the broad principles for exercising the inherent powers of the High Court under section 482 Cr.P.C. Dr. D.Y. Chandrachud,J., speaking for the bench, enumerated the principles in paragraph 16 and in sub paragraphs. The same are reproduced below:
12"16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions:
16.1. Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court.
16.2. The invocation of the jurisdiction of the High Court to quash a first information report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.
16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power.
16.4. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised (0) to secure the ends of 13 justice, or ) to prevent an abuse of the process of any court.
16.5. The decision as to whether a complaint or first information report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated.
16.6. In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences.
16.7. distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing insofar as the exercise of the inherent power to quash is concerned.
16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour 14 may in appropriate situations fall for quashing where parties have settled the dispute.
16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions 16.8, and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
19. From the above discussion on the settled legal principles, it is clear from the facts of the present case that there was a clear abuse of the process of the Court and further that the Court had a duty to secure the ends of justice. We say so for the following reasons:
a) The allegations made in the FIR had an overwhelmingly and predominatingly a civil flavour inasmuch as the complainant alleged that he had paid money to Gurmeet Singh, the main accused to get employment for his son abroad. If 15 Gurmeet Singh failed the complainant could have filed a suit for recovery of the amount paid for not fulfilling the promise.
b) Initially, the investigating officer and two superior officers of the economic wing has found that there is
no substance in the complaint making out even a prima facie triable case and had therefore, recommended for closure.
However, on the orders of the Senior Superintendent of Police, the FIR was registered and the matter was investigated. No criminal breach of trust was found and the charge sheet was submitted only against Gurmeet Singh under section 420 I.P.C.
c) The complainant Nasib Singh had clearly deposed that he had paid Rs 4 lacs cash to Gurmeet Singh and had also given a cheque of Rs 2 lacs favouring Gurmeet Singh which he had encashed.
d) During trial the present appellant as also the other co-accused Gurpreet Singh were summoned in April 2014 invoking powers of Section 319 Cr.P.C., for being tried under Section 420 I.P.C. It may be noted that no specific allegations of cheating are made against these two accused as they were both settled abroad in Italy.
e) The complainant Nasib Singh entered into a compromise with the main accused Gurmeet Singh which was filed before the learned Magistrate and the same was accepted vide order dated 26.09.2014 16 and the alleged offence being of financial transaction stood compounded.
Proceedings against Gurmeet Singh were closed.
f) Right from 2014, the present appellant and other co-accused Gurpreet Singh who were in Italy were being summoned by the Court. The appellant was declared proclaimed offender. The appellant applied before the High Court challenging the order declaring him proclaimed offender and also filed a 482 Cr.P.C. petition for quashing of the proceedings wherein, he also filed the compounding order of 26.09.2014.
g) The High Court merely perused
the FIR and noting the fact that
the name of the appellant was
mentioned in the FIR, declined to exercise the inherent power under Section 482 Cr.P.C.
20. In our considered view, the High Court erred in firstly not considering the entire material on record and further in not appreciating the fact that the dispute, if any, was civil in nature and that the complainant had already settled his score with the main accused Gurmeet Singh against whom the proceedings have been closed as far back as 26.09.2014. In this scenario, there remains no justification to continue with the proceedings against the appellant."
(Emphasis supplied) 17
7. The aforesaid judgments rendered by the Apex Court is followed by this Court in the case of Santosh Chinnappa Reddy and others vs. The State of Karnataka and another, in Crl.P.No.5194/2018 disposed of on 10.11.2021.
8. For the aforesaid reason and the law laid down by the Apex Court as followed by this Court, I pass the following:
ORDER
i) The criminal petition is allowed.
ii) The proceedings in Crime No.84/2015 of Sub-
Urban Police Station, Hubballi, pending on the file of Prl. Civil Judge and JMFC, Hubballi, against the petitioners stand quashed.
iii) It is made clear that the observations made in the course of this order is only for the purpose of considering the case of the petitioners under section 482 of the Code of Criminal Procedure and would not influence 18 or bind any other proceedings pending between the parties.
Sd/-
JUDGE Mrk/-