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2003 DIGILAW 509 (AP)

KANYALUR JITENDRA v. N. S. KALANDAR BASHA

2003-03-31

K.C.BHANU

body2003
K. C. BHANU, J. ( 1 ) THIS petition is filed under section 482 of the Code of Criminal procedure to quash the proceedings in P. R. C. No. 49/2001 on the file of the learned II additional Judicial I Class Magistrate, madanapalle. ( 2 ) THE facts leading to the filing of the present petition in brief are as follows. Petitioner No. 2 filed a report with I Town police, Madanapalle, on 25. 8. 2000 at 4. 10 p. m. , alleging that when he was going from the bar room to the car of petitioner no. 5 on that day, 1st respondent, armed with a knife, abused Advocates in a filthy language and tried to attack petitioner No. 5 who managed to escape from the attack, that then 1 st respondent pounced upon petitioner no. 2 and beat him on his right wrist, and that some Advocates came there and prevented 1st respondent from attacking further. That report was registered as crime no. 132/2000. The police after investigation filed a charge-sheet under Sections 326 and 506 IPC against 1st respondent and his son-in-law. On the same day at 4. 30 p. m. , 1st respondent too lodged a complaint with the same police against petitioners 1 to 9 and 10 others alleging that when he went to the Court at Madanapalle on 25. 8. 2000 to observe the Court proceedings in connection with a complaint lodged by his daughter in c. C. No. 472/2000 against eight Advocates including petitioners 1, 5, 8, 12 and 16 to 18 and another, petitioners 1 to 5 dragged him to the Bar Association, and all the petitioners beat him with chappals, sticks and stones, resulting in bleeding injuries and dumb injuries all over his body. Petitioners 6 and 7 caught hold of the hands of the 1st respondent and when petitioner No. 4 tried to stab him with a knife, he somehow managed to ward off the stab, but in the process received a bleeding injury on his forehead. Petitioners asked 1st respondent to advise his daughter to withdraw the case against them. Since 1st respondent did not agree to do so, he was attacked as aforesaid. That report was registered as crime No. 133/2000. The police after investigation filed a final report stating that it was a mistake of fact. Petitioners asked 1st respondent to advise his daughter to withdraw the case against them. Since 1st respondent did not agree to do so, he was attacked as aforesaid. That report was registered as crime No. 133/2000. The police after investigation filed a final report stating that it was a mistake of fact. Subsequently, 1st respondent filed a private complaint before the learned II Additional Judicial i Class Magistrate, Madanapalle, against all the petitioners with the same allegations, which he made in his report to the police. The complaint was registered as P. R. C. No. 49/2001 under Sections 326, 447, 506 and 147 read with Section 34 IPC against all the petitioners and under Section 307 IPC against petitioners 4, 5 and 7. Accused in the complaint filed the petition to quash the proceedings. ( 3 ) LEARNED Counsel for the petitioners contended that the report lodged by 2nd petitioner was earlier in point of time, that 1 st respondent filed the report with the police only as counter blast and though it was referred as mistake of fact, he yet chose to file the private complaint implicating petitioners 10 to 18 also who were not named in the report filed earlier by him, and that allowing to continue the proceedings in the private complaint is only abuse of process of the Court since it was filed to wreak vengeance against the petitioners. Learned counsel tor the petitioners relied upon a decision in State of Haryana v. Bhajan Lal, air 1992 SC 604 , and contended that the proceedings should be quashed. Learned additional Public Prosecutor opposed the petition. ( 4 ) THE scope of Section 482 Cr. P. C. is set out in State of Haryana (supra) wherein some illustrative categories in which the power under Section 482 Cr. P. C. can be exercised are mentioned as below: (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. P. C. can be exercised are mentioned as below: (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 F. I. R. and other materials, if any, accompanying the f. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of magistrate within the purview of Section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the F. I. R. 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. (4) Where the allegations in the F. I. R. , 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 F. I. R. 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 proceeding 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. " ( 5 ) THE illustrations given in the above decision have been reiterated by the Apex court in a recent decision in State of karnataka v. M. Devendrappa and another, ( 2002 (1) Supreme 192 ). " ( 5 ) THE illustrations given in the above decision have been reiterated by the Apex court in a recent decision in State of karnataka v. M. Devendrappa and another, ( 2002 (1) Supreme 192 ). The position of law is now well settled from the above decisions that where the allegations in the F. I. R. or complaint do not make out a prima facie case, the proceedings can be quashed, but if it prima facie appears that the allegations do make out a case, then the proceedings cannot be quashed. ( 6 ) AFTER the police filed a final report stating that the report lodged by 1st respondent was a mistake of fact on the ground that the independent witnesses did not corroborate the statements made by the 1st respondent and his witnesses, the present complaint was filed. ( 7 ) IT is not disputed before me that all the petitioners, except petitioner No. 13, are members of Madanapalle Bar Association, most of whom are aged about 50 or 60 years. It is also not disputed that the daughter of 1 st respondent, who was a practising Advocate of Madanapalle Bar, was suspended from the Bar Association and ultimately all the members of the bar unanimously resolved to remove her name from the Madanapalle Bar Association. ( 8 ) LEGAL profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although entry to legal profession can be had by merely acquiring technical qualification, the honour as a professional has to be maintained by its members by their exemplary conduct, both in and outside court. Legal profession is different from other professions, in that what the lawyers do affects not only an individual but also administration of justice which is the foundation of a civilized society. As a member of intelligentsia cf the society and as a responsible citizen, a lawyer may not overstep his limits and his behaviour. Having known all intricacies of law and also the consequences of law, they are last persons to involve themselves in any offence. But at the same time they are also human beings and are prone to commit offences. Having known all intricacies of law and also the consequences of law, they are last persons to involve themselves in any offence. But at the same time they are also human beings and are prone to commit offences. But, collectively all the members of Madanapalle Bar Association, including advocate-petitioners who have more than 30 years of practice at the Bar, have no reason to attack 1st respondent without any justifiable or reasonable cause. There must be a strong motive or intention on their part to attack 1st respondent. 1st respondent has nothing to do with the Bar Association. He is not a client of any of the petitioners- advocates. The only relation between them is that 1st respondent is the father of a practising Advocate who was suspended by the Bar Association. ( 9 ) THE allegation is that petitioners 1 to 5 caught hold of the collar of 1st respondent, dragged him into the Bar room, and beat him with hands, chappals, sticks etc. , and one of the petitioners even tried to kill him with a knife. It is not a case of pre-planned attack. There was no reason for petitioners to keep sticks or stones in the Bar Room. There was also no need for them to carry knives, sticks and stones. The reason for or the genesis of the attack is completely shrouded with mystery. 1st respondent did not say anything about the same when he examined by the learned Magistrate on 1. 8. 2000. Even his daughter, who was examined as L. W. 2 on the same day, did not speak as to the cause for the petitioners to attack her father. L. W. 3 is the son-in-law of 1st respondent and L. Ws. 4 and 5 are alleged to have been present at the time of the incident. They also did not speak about the origin of the attack. Therefore, it cannot be said that petitioners, having enviable role in the public and responsible duty to their clients, turned into offenders without any cause or reason. The allegations in the complaint are absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that the incident as alleged by 1st respondent has taken place. The allegations in the complaint are absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that the incident as alleged by 1st respondent has taken place. ( 10 ) THE complaint appears to have been filed as counter blast to the report which was given by 2nd petitioner earlier in point of time in respect of which the police filed charge-sheet after investigation, against 1st respondent, his daughter and her husband under Sections 326 and 506 IPC. 1st respondent filed the report alleging that petitioners 1 to 9 attacked him, but in the complaint he implicated petitioners 10 to 18. His daughter s name was removed from the rolls of the Bar Association and, therefore, with a view to spite petitioners due to personal grudge, the complaint appears to have been filed with false allegations, with malicious intention and ulterior motive to wreak vengeance. The allegation is that due to the attack made by petitioners, 1st respondent received several bleeding injuries. But, as seen from the wound certificate, he received abrasion of 1/2 cm. , over forehead, swelling of 2 cm. , and contusion of 1 cm/2 cm. , over front of chest. The police after investigation filed final report stating that in intoxicating state 1st respondent himself hit his head twice against a wall which was the cause for his sustaining bleeding injury on head. The police came to the conclusion