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2009 DIGILAW 653 (KAR)

Sri Shivanand v. State of Karnataka

2009-08-20

H.G.RAMESH

body2009
ORDER Huluvadi G. Ramesh, J: in this petition the petitioners have sought to quash the proceedings pending before the JMFC-II Court, Hubli, in C.C.No.1611/06. 2. It is stated that complainant M.Ramarao S/o Srinivas Rao, who is said to have appeared before Labour Court on behalf of labourers on 19.4.2002 and while he was cross-examining the management witness petitioner no.2-Mahadev Koni, the Counsel appearing for Management petitioner no. 1 raised objections alleging that irrelevant questions were being put and prayed the Court to direct said M. Ramarao not to allow such irrelevant questions. At that time the complainant Ramarao having lost control on himself shouted at petitioner no.1 as "you get out non-sense". At the same, he instigated one Jakir Hussain - Assistant of Ramarao, who was sitting in the Court. On such instigation said Jakir Hussain lifted a chair and threw the same against petitioner-l in the open Court. Thereafter, he along with Ramarao went near the 1st petitioner and caught hold of his neck and threatened the petitioner-l with dire consequences and posed threat to his life and also tried to kill PW.2 by strangulation. 3. After the alleged incident complaint filed by petitioner no.1 against Hamarao and Jakir Hussain before the Sub-Urban Police in Crime No.121/2002. As such police are said to have record statement of Presiding Officer, typist, clerks. Labour Inspectors. Peons and advocates who were present at the time of accident. Thereafter, police have filed a charge sheet for offences U/S 307, 323, 324, 504, 506 r/w Section 34 of IPC and the said case was committed to Sessions Court by JMFC II Court, Hubli, which is pending in S,C.No.51/2003. 4. It is noted that the complaint filed by petitioner no.1 was on 19.4.2002 on the date of accident. The complaint came to be filed by Ramarao on the same day at 8.00 p.m. as a counter-blast to the complaint filed, by petitioner no. 1. The police after investigation filed B-Report on 22.2.2003. Thereafter, protesting the same on 30.12.05 the 2nd respondent Ramarao filed a protest memo. The learned Magistrate registered the case and issued summons to petitioners. It appears in between, respondent no.2 herein had filed an application in S.C.No.51/2003 before Sessions Court seeking to try both cases together and sought for his discharge. The said application came to be dismissed against which Crl.RP.1554/2006 filed before this Court was also dismissed. The learned Magistrate registered the case and issued summons to petitioners. It appears in between, respondent no.2 herein had filed an application in S.C.No.51/2003 before Sessions Court seeking to try both cases together and sought for his discharge. The said application came to be dismissed against which Crl.RP.1554/2006 filed before this Court was also dismissed. However, petitioners 1 and 2 have filed this petition being aggrieved by order of taking cognizance of offence and issue of summons. 5. Heard. 6. According to the learned Counsel for petitioners, the statement of witnesses discloses that it was the respondents who were aggressors and who have taken the law into their hands and tried to assault to disturb the Court proceedings. Nothing has been whispered in the said statement against these petitioners while the proceedings was going on. PW. 1 is advocate and PW.2 is witness of the management. In the process of cross-examination, since irrelevant questions were being put to him when it was objected, respondent no.2 misbehaved and instigated his assistant to assault PW. 1, which is abuse of Court proceedings. On the protest application filed by the respondent, the learned Magistrate without looking to the circumstances and background of the incident, mechanically proceeded to take cognizance of the issued process against petitioners. The petitioners have sought for quashing of the proceedings. 7. Per contra, the learned HCGP vehemently contended that the case and counter case has to be tried as held by this Court in Crl.P.5978/06 dated 23.3.2009. Accordingly he submitted that there is no scope for interference with the order of taking cognizance and issue of process against the petitioners. 8. On hearing both sides, the point that arises for consideration is whether taking of cognizance and issue of process against petitioners on the protest application filed by the respondents in C.C.No. 1611/2006 pending before JMFC II Court, Hubli, needs interference. 9. The learned Counsel for petitioner taking me through charge sheet filed and petition filed by respondent as to the incident that has taken place in open Court and also statement recorded by Presiding Officer and other witnesses clearly points towards guilt of the respondents. It is seen that nothing has been whispered as against the petitioners by the Presiding Officer ignoring the statement of other witnesses. The application said to have been filed by the respondent appears to be a counter-blast. It is seen that nothing has been whispered as against the petitioners by the Presiding Officer ignoring the statement of other witnesses. The application said to have been filed by the respondent appears to be a counter-blast. The very statement of Presiding Officer of the Labour Court depicts the fact that the very respondents have abused the petitioners in filthy language in the open Court and also has spoiled the decorum and dignity of the Court. Even in the open Court the assistant of Ramarao by name Jakir Hussain has thrown the plastic chair towards the advocate, viz. Petitioner no.1. The context is also explained by the Presiding Officer in his statement given before the police. 10. On the submission of the B-Report and the complaint filed by the respondent after the filing of petition by the complainant, it was for the learned Magistrate to apply his mind before taking cognizance of the case in the back ground of facts and circumstances of the case. In the circumstances, once again if petitioners were to face the trial it would be nothing but abuse of process of Court. 11. In decision reported in AIR 2003 S.C. 2612 , the Apex Court referring to Section 482 Cr.P.C. has ruled that Section 482 saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. In the instant case, what is being noticed is the police officer has filed B-report. The complaint said to have been filed by the respondent subsequent to the report filed by the Investigation Officer as to the alleged incident. In the circumstances, having regard to the background of the case, unless some prima facie material was available at the inception to indict the petitioners on a subsequent complaint, taking of cognizance is nothing but to discourage a person to set the Jaw into motion. The person may be afraid of filing a complaint when an incident has taken place under the impression that he would he implicated by filing a complaint as a counter blast. Unless such a fear is curbed at the very inception, the very system of maintaining law and order would be frustrated. The person may be afraid of filing a complaint when an incident has taken place under the impression that he would he implicated by filing a complaint as a counter blast. Unless such a fear is curbed at the very inception, the very system of maintaining law and order would be frustrated. Filing of counter complaints/protest petitions and consequent filil1g of B-Reports itself will not constitute material for the Magistrate to take cognizance. The learned Magistrate should visualise the actual situation before taking of cognizance and issue of process on such protest application is filed. 12. The learned Magistrate should have applied his mind to reject the protest petition filed by passing a reasoned order. On the contrary, he has proceeded to entertain the petition and taken cognizance despite petitioners were shown to be innocent of the allegations made by the respondent. The very fact that the Presiding Officer of the Court has given statement as to what transpired in the open Court and how the respondents have misbehaved with the petitioners, would prima facie constitute material against the respondents. The said material ought to have been examined to dislodge the case filed against the petitioners by the respondents. Instead he proceeded to take cognizance and issued process, which is nothing but abuse of process of law. This is nothing but non-application of mind and encourage unruly elements to take the law into their hands by the judicial process. 13. In the circumstances, the petition is allowed. Impugned proceedings initiated by way of taking cognizance and issue of process against petitioners in C.C.No. 1611/2006 on the file of JMFC II Court, Hubli, is quashed.