Karnataka High Court
Sri Sheik Mohammed Yacobe vs The State Of Karnataka on 22 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 152
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL PETITION NO.1407/2019
BETWEEN:
1. Sri Sheik Mohammed Yacobe
S/o late Mohammed Hussain
Aged about 49 years
Resident of No.4, Krishna Layout
Bannerghatta Road, Hulimavu
Bengaluru-560076.
2. Sri Sheikh Yusuf
S/o Sheik Mohammed Yacobe
Aged about 22 years
Resident of No.4, Krishna Layout
Bannerghatta Road, Hulimavu
Bengaluru-560076. ...Petitioners
(By Sri Murthy.D.Naik., Advocate)
AND:
1. The State of Karnataka
Rep. by the Sub Inspector of Police
Hulimavu Police Station
Bengaluru.
2. Sri Syed Showkat
S/o Syed Amanulla
Residing at No.11
-2-
1st Cross, Babaline
Mysore Road
Bengaluru City-560002. ...Respondents
(By Sri H.R. Showri, HCGP for R1,
Sri Maskoor Hashmi M.D., Advocate for R2)
This Criminal Petition is filed under Section 482 of
Cr.P.C praying to quash the charge sheet filed by the 1st
respondent Hulimavu Police Station, in crime
No.46/2017 dated 01.02.2017, filed for the offence
punishable under Sections 420, 324, 504, 506 read
with Section 34 of IPC filed against the
petitioners/accused Nos.1 and 2 vide Annexure-C and
etc.,
This Criminal Petition coming on for Orders this
day, the Court made the following:
ORDER
This petition has been filed by the petitioners- accused Nos.1 and 2 under Section 482 of Cr.P.C praying this Court to quash the charge sheet filed in crime No.46/2017 and the proceedings in C.C.No.27190/2017 and also quash the charge dated 12.12.2018 for the offences punishable under Sections 420, 324, 504, 506 read with Section 34 of IPC. -3-
2. I have heard the learned counsel for the petitioners-accused and learned High Court Government Pleader for respondent-State.
3. Though the notice is served to respondent No.2, there is no representation.
4. The learned counsel for respondent No.2 has remained absent.
5. Though this case is listed for orders, with the consent of the learned counsel appearing for the parties, the same is taken up for final disposal.
6. In between the complainant and the accused persons there were several disputes with regard to landed property bearing survey No.82 of Bettadasanapura Village and in this behalf two suits have been filed in O.S.Nos.1519/2015 and 1525/2015 and a temporary injunction was also granted in said suits.
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7. It is further contended that because of the dispute arose between the parties a PCR No.654/2016 was filed before the Chief Judicial Magistrate Court, Bengaluru Rural and the matter has been referred to the jurisdictional police and a case has been registered in crime No.81/2017. Subsequently it is alleged that the complainant came to know that the petitioners-accused have cheated him along with other accused persons by selling the bogus sites along with Sri Srinivasa Reddy and Sri B.N.Manjunath and the people who have been cheated by the accused persons have been mentioned in the complaint and he was telling that he will file a case.
8. It is his further contention that he has taken Rs.60,000/- from each of them stating that he is doing development work in the layout and get the electricity connection and he has taken the electricity connection and other aspects.
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9. It is further alleged that even in spite of taking the amount, no work has been done as promised and the amount has also not been returned and an amount of Rs.4,65,000/- has been cheated and when the complainant enquired over the phone, he did not receive the phone and on 01.02.2017 at about 9.00 p.m., when the complainant and others went near the house of the accused to ask, the accused persons abused with filthy knowledge and assaulted with stone and caused the bleeding injuries. On the basis of the complaint, a case has been registered.
10. It is the contention of the learned counsel for the petitioners-accused that the present complaint is a counter blast to the civil disputes and the criminal complaint which has been filed on 01.02.2017. But at the behest of the police, the complaint filed by the petitioner-accused No.1 has been treated as NCR No.74/2017. But it is his submission that there is inter -6- polluted correction and only in order to help the complainant, a false case has been registered as against the accused.
11. It is his further submission that a private complaint has also registered by the petitioners-accused for having not accepted the complaint by the police and in the said private complaint, the Court has taken the cognizance.
12. It is his further submission that the complaint is cryptic complaint and there are no ingredients so as to attract the provisions of the alleged Sections. It is his further submission that the learned Magistrate without application of the mind has taken the cognizance.
13. It is his further submission that while taking the cognizance, the learned Magistrate has to apply his mind and thereafter he has to take the cognizance. -7-
14. In order to substantiate his contention he has relied upon the decision in the case of Sunil Bharti Mittal v/s Central Bureau of Investigation reported in (2015)4 SCC 609.
15. It is his further submission that in pursuance of the said decision the learned Magistrate has to form an opinion after due application of mind to the fact that there is sufficient basis to proceed against the said accused. Without application of mind if the learned Magistrate takes the cognizance that itself amounts to abuse of process of law.
16. It is his further submission that the charge has been framed as against accused Nos.1 and 2 though the cognizance has been taken against accused Nos.1 to 4.
17. It is his further submission that the High Court can exercise the power under Section 482 of -8- Cr.P.C to meet the ends of justice and if a case has been registered with some oblique motive, then the Court has to thwart the attempt at the very threshold and the Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana V/s Bhajan Lal.
18. In order to substantiate his contention he has relied upon the decision in the case of Kartik Chandra Majee Alias Kartik Chand Majee and others V/s State of Jharkhand and another reported in (2018)13 Supreme Court Cases 747.
19. It is his further submission that the entire proceedings is of a civil in nature and there are no good grounds to proceed against the accused. On these grounds, he prays to allow the petition and to quash the proceedings.
20. Per contra, the learned High Court Government Pleader vehemently argued and submitted -9- that the learned Magistrate after taking into consideration the charge sheet material and after application of mind has taken the cognizance and issued the summons. There is no irregularity in taking the cognizance by the learned Magistrate.
21. It is his further submission that already the charge sheet has been filed and before the learned Magistrate only accused Nos.1 and 2 were present on that day. The charge has been framed as against accused Nos.1 and 2. Subsequently, he may frame charge as against the remaining accused.
22. It is his further submission that they having not accepted the complaint of the petitioner-accused No.1 they have filed a PCR and the same has been registered in PCR No.4758/2017.
23. It is his further submission that the civil suits are also pending between the parties but if the
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element of criminality is there in the act of the accused as such trial Court has taken cognizance. It is his further submission that the petitioners-accused have not made out any good grounds so as to quash the proceedings. On these grounds, he prays to dismiss the petition.
24. I have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records.
25. The first and foremost contention which has been taken by the learned counsel for the petitioners- accused is that though the charge sheet has been filed, the learned Magistrate without application of mind has taken the cognizance and has not followed the mandate of the law issued by the Hon'ble Apex Court. In this behalf, he has relied upon the decision in the case of Sunil Bharti Mittal (quoted supra) at para No.48, 49, 51 and 53, it has been observed as under:
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48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so and decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the Court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.
49. Cognizance of an offence and prosecution of an offender are two different things. Section 190 of the Code empowered taking cognizance of an offence and not to deal with offenders.
Therefore, cognizance can be taken
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even if offender is not known or named when the complaint is filed or FIR registered. Their names may transpire during investigation or afterwards.
51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This Section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e., the complaint, examination of the complainant and his witnesses if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
53. However, the words "sufficient grounds for proceeding" appearing in
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the Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect.
26. I have carefully and cautiously given my thoughtful consideration, I have gone through the said decision. I am not having any difference of opinion with regard to the ratio laid down in the above said decision. By taking the cognizance of the offence that the Magistrate has to satisfy himself with regard to the
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allegations made in the charge sheet and if the offences are constituted in the charge sheet material, then learned Magistrate can proceed in accordance with law.
27. Keeping in view the said proposition of law and on perusal of the orders passed by the learned Magistrate it clearly goes to show that the learned Magistrate has perused the materials and he has mentioned that there are sufficient materials placed by the prosecution to proceed against the accused persons and thereafter, the cognizance has been taken for the offence punishable under Sections 420, 324, 504, 506 read with Section 34 of IPC and directed that Registry to register the case as criminal case and register No.3 of the Court and thereafter, the summons has been issued to accused Nos.1 to 3 and non-bailable warrant has been issued as against accused No.4.
28. By taking into consideration and on perusal of the order passed by the learning Magistrate it clearly
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goes to show that there is a compliance of the mandate of the Apex Court and the learned Magistrate after due application of mind has come to the conclusion that there is sufficient basis for proceeding as against the accused and after formation of the opinion has proceeded to issue the summons. So, in that regard the contention taken up by the learned counsel for the petitioners-accused is liable to be rejected.
29. The second contention which has been taken by the learned counsel for the petitioners-accused is that there are as many as four accused and the learned Magistrate has framed the charge only as against accused Nos.1 and 2. But it is not brought to the notice of this Court whether the charge has been framed as against the remaining accused or not they expressed ignorance. If the charge has not been framed as against the remaining accused, yet it is not considered to be a illegality. But it is only a irregularity which can be
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curable at any time before the pronouncement of Judgment and if as on today if the charge has not been framed as against the remaining accused persons, then under such circumstances the Court can exercise the power under chapter XVII of Cr.P.C., therein the law provides that if there is any defect in the charge the charges have not been including or framed as against some of the accused, then the Court can take care of the said irregularity and set right the things by framing the charge.
30. In the light of the discussion held by me above I am of the considered opinion that merely because the charge has not been framed as against the remaining accused on that ground it cannot be held that there is perversity and illegality executed by the learned Magistrate so as to quash the proceedings.
31. The third contention which has been raised by the learned counsel for the petitioners is that there
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are civil disputes pending as against the petitioners and the complainant and the injunction order was also obtained and only to twist the civil case into a criminal case, a false complaint has been registered as against the petitioners-accused. I am conscious of the fact that if the civil remedy is made available and if on the face of it if the complaint and other materials constitute an offence under the penal code then under such circumstances, this Court cannot exercise the power under Section 482 of Cr.P.C. and to quash the proceedings.
32. For the purpose of brevity, I quote the decision of the Hon'ble Apex Court in the case of Indian Oil Corporation v/s NEPC India Ltd., reported in (2006) 6 SCC 736, the principles relating to exercise of power by the Courts under Section 482 of Cr.P.C. to quash the complaint and criminal proceedings have
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been elaborately discussed in the said decision at paragraph-12, which read as under:-
12. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few--Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v.
Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., Hridaya Ranjan Prasad Verma v. State of Bihar, M. Krishnan v. Vijay Singh and Zandu Pharmaceutical Works Ltd.
v. Mohd. Sharaful Haque. The principles, relevant to our purpose are:
(i) A complaint can be quashed where the allegations made in the complaint,
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even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations.
Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a
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legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding,
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the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
33. Keeping in view the ratio laid down in the above decision and even keeping the ratio laid down in the decision of Kartik Chandra Majee (quoted supra).
34. On perusal of the records it indicates that a case has been filed by the complainant and the same has been registered in crime No.46/2017 and it has also been brought to the notice of this Court that the complaint has been also registered by the petitioner- accused No.1 before the Hulimavu Police Station on the same day. But the said case has been treated as NCR and number has been given and a receipt has also been given.
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35. Being aggrieved by the act of the Police the present petitioner-accused No.1 has filed the PCR in No.4758/2017 and therein the Court has taken the cognizance. In the said complaint it has been narrated that on 01.02.2017 at about 9.00 p.m. in collusion with accused No.1 constitute unlawful assembly trespassed into the house of the complainant and put life threat, assaulted with deadly weapons, abused the complainant and others i.e., the incident with reference to the civil suit. No doubt, that the civil suits are pending and merely because civil suits are pending it cannot be converted into a misuse of the authority and filed a false complaint. When a case and counter case has been filed by both the parties incident is also stated by both the parties under such circumstances it cannot be held as civil in nature. Under such circumstance it goes without saying that the alleged incident has taken place and the only moot questions which remains for the consideration of the Court below in both the case is that
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who is aggressor and ultimately whether the alleged offence has been committed or not. At this premature stage, I am of the considered opinion that there is criminality and element of criminal act in the case. It is not a fit case so as to exercise power under Section 482 of Cr.P.C to quash the proceedings. There is no infirmity in the order of trial Court and it is not a fit case to allow the petition.
In that light, the petition is liable to be dismissed. Accordingly, the petition is dismissed. Consequently, I.A.No.01/2020 does not survive for consideration and the same is dismissed.
Sd/-
JUDGE ssb