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2013 DIGILAW 584 (KAR)

D. S. Chandrakanth v. State of Karnataka

2013-05-23

ANAND BYRAREDDY

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ORDER : Anand Byrareddy, J. 1. These petitions are heard and disposed of together as they relate to incidents involving the same parties. Heard the learned counsel for the parties. In Criminal Petition 261 of 2012, the facts stated are as follows: The petitioner is an advocate practicing at Bangalore and other places in the State of Karnataka. He was a sitting member of the Karnataka State Bar Council (Hereinafter referred to as the 'KSBC', for brevity), as on the date of the petition. He was also Chairman, KSBC, for a term. It transpires that the second respondent, C.A. Kumar, an Advocate, was appointed as Standing Counsel to represent accused persons, who did not have the assistance of counsel, before one particular court, namely, the City Civil and Sessions Judge, Bangalore (CCCH-2), for the period between 21.11.2001 and 20.11.2004. It is alleged that the said respondent, however, had misused the said appointment and billed himself as a Standing Counsel for the Government of Karnataka and thereby was committing acts of professional misconduct. This lead to a complaint being lodged by one D.S. Chandrakanth, with the Advocates Association, Bangalore, in his capacity as the General Secretary, Bangalore City Notaries Association, Bangalore. The Advocates Association, had in turn filed a complaint with the police on 23.10.2001. There was also an earlier complaint lodged against the second respondent by several Notaries Public, as on 23.8.2001. The petitioner was also informed of the activities of the second respondent, as he was the Chairman, KSBC at that point of time. This entailed issuance of show cause notices by the Council to the second respondent dated 24.11.2003 and 16.12.2003. The second respondent replied making derogatory statements and false allegations against the petitioner. The KSBC took serious note of the said attitude of the second respondent and initiated suo-motu action against him. The matter was referred to the Disciplinary Committee of the Council. A case in DCE 19/2004 was registered against him. The second respondent failed to respond to notices in respect of the same. He was hence proceeded against, ex-parte, and was punished by being reprimanded for his unethical activity and was imposed a fine of Rs. 1000/-. The second respondent did pay the fine. This incident, according to the petitioner, prompted the second respondent to develop an unnatural enmity towards the petitioner. He was hence proceeded against, ex-parte, and was punished by being reprimanded for his unethical activity and was imposed a fine of Rs. 1000/-. The second respondent did pay the fine. This incident, according to the petitioner, prompted the second respondent to develop an unnatural enmity towards the petitioner. It is stated that during August 2011, the State Bar Council Elections were scheduled to be held. One Shivamurthy, Advocate had received information that pamphlets containing defamatory matter pertaining to the petitioner were being circulated in the City Civil Court complex, Bangalore, by the second respondent. It transpires that the said Shivamurthy had accosted the second respondent and questioned him of his motive and intention in circulating such material. In turn, the second respondent is said to have assaulted Shivamurthy and abused him in foul language. He is also said to have threatened to kill him. He is also said to have threatened other advocates, namely, Thyagaraj, Shankar and Ravikiran present at the spot. This incident was on 23.5.2011. Shivamurthy had immediately lodged a report with the jurisdictional police. The police, after conducting a preliminary enquiry, had registered a complaint against Kumar, the second respondent, in Crime No. 125/2011. A final report was filed before the Court of VI Additional Chief Metropolitan Magistrate, Bangalore on 20.10.2011. The court took cognizance of the offences punishable under Sections 323, 504 and 506 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). A case was registered in case No. C.C. 34400 of 2011. It transpires the said Kumar had, in turn, lodged a counter complaint alleging that when the said respondent was working in his office, the petitioner, accompanied by six other advocates had barged into his office and started assaulting him and tore his clothes, while abusing him in foul language and dragged him out of his office to the police out-post at the city civil court. It was alleged that the said group had taken away his personal belongings like his gold ring, cell phone, wrist watch, reading glasses, etc. It was claimed that he had obtained a medical certificate as regards the bruises caused on account of the assault by the petitioner and others in lodging the police complaint. On the basis of a further statement made by the second respondent, two other accused were named along with the petitioner by the police. It was claimed that he had obtained a medical certificate as regards the bruises caused on account of the assault by the petitioner and others in lodging the police complaint. On the basis of a further statement made by the second respondent, two other accused were named along with the petitioner by the police. After further investigation, a final report was filed before the very court in which the case filed by Shivamurthy and the Magistrate had taken cognizance of offences punishable under Sections 341, 323, 504, 506 read with Section 34 of the IPC and a case is registered in case No. C.C. 31794 of 2011. Process has been issued against the petitioner. It is this which is under challenge in the above petition. In Criminal Petition 1970 of 2011, the petitioner is C.A. Kumar, the second respondent in the above Criminal Petition 261 of 2012, questioning the issuance of process in the criminal case, mentioned hereinabove, registered against him. In the third of these petitions, Criminal Petition 1505 of 2012, the other accused namely, D.S. Chandrakanth and B.M. Chandrashekar, named along with the petitioner in Criminal Petition 261 of 2012, have also sought to challenge the issuance of process. 2. The learned Senior Advocate Shri. C.V. Nagesh, appearing for the counsel for the petitioners in Criminal Petition 261 of 2012 and Criminal Petition 1505 of 2012, would submit that having regard to the circumstance that the second respondent in these cases, who was taken to the station by the police, on the report filed by Shivamurthy as aforesaid, on 23.5.2011 at 4.30 p.m., had remained at the police station till he was enlarged on bail by the police, with members of the Bar and the Police seeking to impress upon the said respondent that he may have been in the wrong and the said respondent having stubbornly refused to acknowledge his aggression. The Police had ultimately registered the complaint filed by Shivamurthy, only at about 6.45 p.m. it is thereafter that the second respondent was granted bail by the police. This sequence of events is apparent from the record and the police were fully aware of the same. The Police had ultimately registered the complaint filed by Shivamurthy, only at about 6.45 p.m. it is thereafter that the second respondent was granted bail by the police. This sequence of events is apparent from the record and the police were fully aware of the same. Therefore, it is inexplicable that the police had in turn accepted the false complaint of the second respondent that he was present in front of the Taluk Office, near the City Civil Court Complex at about 5.00 p.m. and that he had been assaulted by the petitioners, when he was at the very Police station continuously from 4.30 p.m. till he was enlarged on bail much later in the evening as already stated. This glaring circumstance is sufficient to demonstrate that the case against the petitioners cannot be sustained on the face of it. The learned Magistrate having taken cognizance in both cases, has overlooked the above circumstance and hence contends that it is a fit case where the entire proceedings ought to be quashed. 3. On the other hand, the petitioner in Criminal Petition 1970 of 2012, appearing in person, would contend that the case foisted against him at the instance of H.C. Shivaramu, the petitioner in the first of these petitions, is false and without any basis. It is asserted that the said petitioner, along with his accomplices, had barged into his office and vandalized the entire furniture and severely assaulted him and dragged him to the Advocates Association building, assaulting him all the while and had then taken him to the police outpost to foist a case against him through the aforesaid Shivamurthy, an accomplice of Shivaramu. It is pointed out that the allegation is self serving by the complainant and there was no medical certificate to show he had suffered any injury whatsoever. There is no material to link the petitioner with the alleged circulation of any hand bill attacking the character of Shivaramu. Even if there were any such hand bills, there was no warrant for Shivamurthy to suspect the petitioner and to question him, as the hand bills had nothing to do with Shivamurthy. As the alleged circulation of the hand bills was the alleged cause for the incident, the charge sheet filed against the petitioner ought to have been accompanied by the same. As the alleged circulation of the hand bills was the alleged cause for the incident, the charge sheet filed against the petitioner ought to have been accompanied by the same. It is contended that the absence of any cogent material in support of the allegations that the learned Magistrate had been extremely reluctant to take cognizance and to issue process. This is evident from the fact that the file which was placed before the court on 11.11.2011 was only perused on 13.11.2011 and actually signed on 15.11.2011. Therefore, the petitioner pleads that the entire proceedings against him having been apparently stage managed, the same ought to be quashed. On examination of these petitions and the record made available, insofar as the complaint filed by Shivamurthy is concerned, as rightly contended by Kumar, the petitioner appearing in person, the allegations appear to be self serving as there is no supporting material made available or gathered by the police, to have enabled the Magistrate to take cognizance of the offences alleged against Kumar. In any event, the involvement of Shivamurthy in respect of defamatory hand bills against Shivaramu is itself inexplicable. There was hardly any reason for him to suspect the petitioner and embark on an enquiry. The complaint is obviously not tenable and the court below ought not to have taken cognizance on such a bald allegation. Insofar as the complaint brought by Kumar is concerned - it is evident that he has alleged that he was assaulted at 4.00 p.m. and was thereafter taken to the police station. He was enlarged on bail after the complaint by Shivamurthy was registered at about 6.45 p.m. However, in his complaint, Kumar has enclosed a medical certificate, which indicates that he was examined at 6.35 p.m., when he was said to be very much present at the police station. This is not capable of being reconciled and hence the veracity of the document itself is doubtful. It is apparently a situation where all the concerned being members of the Bar have sought to get the better of each other in seeking to foist cases against each other. The matters ought to have been resolved amongst themselves not withstanding the long standing enmity that is sought to be stoked by recourse to these proceedings. It is apparently a situation where all the concerned being members of the Bar have sought to get the better of each other in seeking to foist cases against each other. The matters ought to have been resolved amongst themselves not withstanding the long standing enmity that is sought to be stoked by recourse to these proceedings. In the opinion of this court, both the complaints were not tenable for more than one unexplained infirmity and in the result, all the three petitions are allowed and the proceedings in case in CC No. 34400/2011 as well as case No. CC 31794/2011, both pending before the VI Additional Chief Metropolitan Magistrate, Bangalore, are hereby quashed.