Karnataka High Court
Sri Shiva Kumar S vs The State Of Karnataka on 11 August, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
DATED THIS THE 11th DAY OF AUGUST 2017
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
CRIMINAL PETITION No. 360 OF 2017
BETWEEN
Sri. Shiva Kumar.S,
S/o. Sri. Siddaiah. S.
Aged about 47 years,
R/at 2482, 7th A Main Road,
RPC Layout, Vijayanagar 2nd Stage,
Bengaluru-560 040.
... PETITIONER
(By Shri. M.S. Nagaraja, Advocate)
AND:
1. The State of Karnataka,
By Inspector of Police,
Vijayanagar Police Station,
Bengaluru, Rep. by SPP,
High Court of Karnataka.
2. Shiva Shankar,
S/o. Siddaiah,
Aged about 40 years,
R/at No. 42/54, 8th Main,
Dwarakanagara,
Hosakerehalli, BSK 3rd Stage,
Bengaluru-560 085.
... RESPONDENTS.
(By Shri. Sandesh S. Chouta, SPP for Respondent No.1
Shri. S.T. Bikkannavar, Advocate for Respondent No.2)
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This Criminal Petition is filed under Section-482 of
the Code of Criminal Procedure by the Advocate for the
petitioner praying to set aside the Order passed by the
learned LIX Additional City Civil and Sessions Judge,
Bengaluru in Crl.R.P. No.869/2015 dated 30.12.2016 and
consequently, restore the order passed by the IV
Additional Chief Metropolitan Magistrate, Bengaluru in
PCR. No. 1831/2014 dated 20.10.2015.
This Criminal Petition coming on for admission, this
day, the court made the following:
ORDER
Heard Shri M.S. Nagaraja, learned counsel appearing for the petitioner, Shri Sandesh S. Chouta, learned SPP appearing for the State and Shri S.T. Bikkannavar, learned counsel appearing for Respondent No.2. Perused the records.
2. Respondent No.2 has filed a private complaint under Section 200 Cr.P.C. against the petitioner and presented the said complaint before the Chief Metropolitan Magistrate, Bangalore City, which came to be numbered as PCR No.1831/2014 after an order came to be passed on 25.01.2014 referring the complaint under Section 156(3) of Cr.P.C. to the jurisdictional police. Based on such 3 reference, the Vijayanagar Police Station took up the matter for investigation and registered the complaint against petitioner as Crime No.167/2014 for the offences punishable under Sections 384, 406, 420, 465, 467, 468, 471, 474 and 506 of IPC.
3. Being aggrieved by this order, petitioner had approached this court in Crl.P.1284/2015 and this court by order dated 20.07.2015, noticed that the learned Magistrate had mechanically passed the order referring the complaint to the jurisdictional police to investigate, by exercising his power under Section 156(3) Cr.P.C. and there being no application of judicial mind, this court had quashed the said order by allowing the petition and reserving liberty to the Learned Magistrate to examine P.C.R.No.1831/2014 and to pass fresh orders. Pursuant to said order of remand, Jurisdictional Magistrate, by order dated 20.10.2015, had rejected the complaint on the ground that complainant has not made out any ground either to refer the matter for investigation or to take cognizance of the alleged 4 offences. Being aggrieved by said order, complainant filed a revision petition before LIX Additional City Civil and Sessions Judge, Bangalore, in Criminal Revision Petition No.869/2015. Revisional Court, after securing the records from trial court and after notifying the accused, has allowed the revision petition, set aside the order dated 20.10.2015 by arriving at a conclusion that the allegations made in the complaint and the supporting documents produced by the complainant would constitute offences punishable under Sections 403, 406, 420 and 506 IPC and as such held that learned Magistrate ought to have taken cognizance under Section 190(1)(a) of Cr.P.C. Acting under Section 398 of Cr.P.C., revisional court has directed the Magistrate to take cognizance of the offences punishable under Sections 403, 406, 420 & 506 IPC and has also directed the Magistrate to dispose of the complaint in accordance with the procedure contemplated under Chapter-XV of Cr.P.C., by order dated 30.12.2016.
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4. Being aggrieved by said order, accused is before this court challenging the same by invoking extra-ordinary jurisdiction of this court, namely Section 482 Cr.P.C.
5. It is the contention of Mr. M.S. Nagaraja, learned counsel appearing for the petitioner, that trial court after applying its judicial mind by examining the allegations made in the complaint and the documents relied upon by the complainant, found that there is no necessity to take cognizance of the offence and as such, it had rightly rejected the said complaint at the threshold, that too before taking cognizance of the offences and it did not call for interference in revision. He would also elaborate his submission by contending that complainant could not have filed a revision petition before the Sessions Court challenging the said order and ought to have invoked the jurisdiction of this court under Section 482 Cr.P.C. challenging said order. He would further contend that learned Sessions Judge, while examining the revision petition under Section 397 6 Cr.P.C., could not have acted under Section 398 Cr.P.C., since that power would be available to the revisional court - Sessions Court if order relates to post-cognizance stage only. Hence, he contends that very revision itself was not maintainable and even otherwise, direction issued by the learned Sessions Judge acting under Section 398 Cr.P.C. is illegal, without jurisdiction and as such, he prays for allowing this petition and also prays for upholding the order passed by the learned Magistrate dismissing the complaint. Learned counsel has also made a valiant attempt to contend that even otherwise, averments made in the complaint and the documents supporting the complaint would disclose that dispute is between brothers which is a civil dispute and as such, ingredients of Sections 403, 406, 420 and 506 IPC were not attracted at all for the revisional court to direct the Magistrate to take cognizance for the said offences. Hence, he prays for allowing this petition.
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6. Per contra, Shri Sandesh S. Chouta, learned SPP appearing for the State would contend that against the final order passed by the Magistrate, a revision petition would be maintainable under Section 397(1) Cr.P.C. and the expression used in sub-section (1) of Section 397 Cr.P.C. would clearly indicate that an order passed by the Magistrate would be amenable to revisional jurisdiction by the Sessions Court also and as such, the order dismissing the complaint being a final order, the revisional court has rightly exercised its jurisdiction. However, he would hasten to add that in so far as direction issued by the revisional court exercising the power under Section 398 Cr.P.C. by directing the jurisdictional Magistrate to take cognizance of the offences, is to be read and construed as a direction issued under Section 397 Cr.P.C. itself and as such, he prays for rejection of this petition.
7. Shri S.T. Bikkannavar, learned counsel appearing for the second respondent - complainant would support the order under challenge and 8 contends that learned Magistrate had clearly erred in not appreciating the allegations made in the complaint as well as documents filed / relied upon in support of said allegations. He would further submit that revisional court having looked into these documents, had found that there is element of truth in the allegation made in the complaint for cognizance being taken and same had been ignored by the learned Magistrate and as such, he contends that order of the revisional court directing Magistrate to take cognizance would not call for interference. Hence, he prays for dismissal of this petition.
8. Having heard the learned Advocates appearing for the parties and on perusal of the records, it would disclose that there exists no dispute with regard to the relationship between the parties, namely the complainant and the accused being brothers. The complainant - R2 herein filed a private complaint under Section 200 Cr.P.C. alleging that he is a permanent resident of Singapore and has been working there since 2001 and at the behest and 9 instance of the accused, he had made over certain money for being invested in the complainant's name which the accused had embezzled and on these and other allegations as more fully alleged in the complaint Annexure-"H", he filed the complaint under Section 200 Cr.P.C. before the IV ACMM, Bangalore. The learned Magistrate, by order dated 20.05.2014, referred the matter for investigation and as already observed hereinabove, said act taking cognizance had been questioned by accused and it came to be set aside by this court and matter was remitted back to the jurisdictional Magistrate, who on re-examination of the material on record, dismissed the complaint at the threshold.
9. There is no dispute that rejection of the complaint was at pre-cognisance stage. Being aggrieved by this order of rejection of the complaint dated 20.10.2015, revision petition came to be filed by the complainant challenging the same. 10
10. Section 397 Cr.P.C. empowers the High Court or the Sessions Court to call for and examine the record of any proceedings before any inferior criminal court situated within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court. Thus, revisional jurisdiction can be exercised by the Sessions Court:
(i) Where Trial Court has
erroneously shut out the evidence
tendered by the complainant;
(ii) Where the evidence tendered by
the complainant is ignored or
erroneously considered or it has failed to look into the said evidence or over-
looked the said evidence.
11. In the instant case, contention of the complainant - revision petitioner before the revisional 11 court was to the effect that order rejecting the complaint which had reached finality would fall within the jurisdiction of non-consideration of the material evidence placed. It is in this background the revisional court exercised its power and it cannot be gainsaid by the accused that order passed by the Magistrate refusing to entertain the complaint, that too at pre-cognisance stage by ignoring the material evidence and the relevant documents produced by the complainant in support of the allegations made in the complaint, was not required to be examined by the revisional court in exercise of its revisional powers. The expression 'order' used in sub-section (1) of Section 397 Cr.P.C. would clearly indicate that order should be a final order or proceedings ought to have reached finality. Embargo placed for the revisional court to entertain the revision under Section 397(2) Cr.P.C. would get restricted only in so far as the interlocutory orders are concerned. However, this court and Hon'ble Apex Court in catena of judgements, have held that there are certain orders 12 which reach finality and which can be termed as intermediatary orders and the order in question rejecting the complaint at the threshold having reached finality, by no stretch of imagination can be construed or contended to be an interlocutory order. As such, this court is of the considered view that exercise of revisional jurisdiction by the Sessions Court while examining the order dated 20.10.2015, cannot be held as one without jurisdiction as sought to be contended by Mr. M.S. Nagaraja, learned counsel appearing for the petitioner. Said contention stands rejected.
12. In so far as his second limb of argument with regard to the revisional court having exercised power under Section 398 Cr.P.C. is concerned, merits acceptance. In as much as, Section 398 of Cr.P.C. would surface only when the jurisdictional Magistrate takes cognizance under Section 190(1) Cr.P.C. and issues process to the accused under Section 204 Cr.P.C. or dismisses the complaint after considering 13 the statements made on oath by the complainant and his witnesses. In such circumstances, the revisional court would be empowered to exercise the power so vested under Section 398 Cr.P.C. However, in the instant case, as rightly contended by Mr. M.S. Nagaraja, the dismissal of the complaint is not post- cognisance but pre-cognisance stage. In that view of the matter, revisional power which was required to be exercised was to be restricted or confined only to Section 397 Cr.P.C and not 398 Cr.P.C.
However, the direction issued by the learned Sessions Judge to the Magistrate purportedly in exercise of power under Section 398 Cr.P.C., is ordered to be construed or considered as a direction issued under Section 397 Cr.P.C. by Sessions Court.
To that extent alone, order of the revisional court requires to be modified and no infirmity can be found on merits of the order passed by the revisional court.
Hence, I proceed to pass following:
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ORDER Criminal Petition stands disposed of by affirming the order dated 30.12.2016 passed by the LIX Additional City Civil and Sessions Judge, Bangalore City in Criminal Revision Petition No.869/2015 in so far as setting aside the order dated 20.10.2015 passed by the IV ACMM, Bangalore, in PCR No.1831/2014 and the direction issued to the Magistrate by the Sessions Court to take cognizance of the offences under Sections 403, 406, 420 and 506 IPC, is ordered to be construed as a direction issued by said court in exercise of the power vested under Section 397 Cr.P.C. and not as an order under Section 398 Cr.P.C.
Subject to above observations, the criminal petition stands disposed of.
SD/-
JUDGE KS