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2014 DIGILAW 651 (KAR)

Krishana Ganesh Bhat v. State of Karnataka

2014-07-09

S.N.SATYANARAYANA

body2014
ORDER : S.N. Satyanarayana, J. The complainant in Crime No. 47/2014 registered with Girinagar Police, within the jurisdiction of IACMM Court, Bangalore, has come up in this petition challenging the order dated 2.4.2014 in allowing the application filed by the first accused in the said crime number, namely Sri.Mallikarjuna Patil alias Patil. 2. The brief facts leading to the filing of complaint in Crime No. 47/2014 is that the petitioner is Chief Executive Officer (CEO for short) of Sri. Ramachandrapura Mutt (Mutt for short), having its head office within the limits of Girinagar Police Station. It is stated that the second respondent herein, who is first accused in Crime No. 47/2014, is said to have approached the petitioner stating that he is in possession of material which would indicate that petitioner is involved in various criminal activities in illegally collecting and receiving funds from abroad and misappropriating the same, also involving in criminal activity, which attract investigation by the agencies of Government. In this background, it is stated that the first accused is said to have demanded a specified sum to be paid to him, to ignore the said documents, failing which he would initiate appropriate proceedings against the petitioner and others for their alleged illegal acts. It is also stated that the second respondent threatened the petitioner stating that he has already filed a Public Interest Litigation (PIL for short) before the Hon'ble High Court of Karnataka, which is pending consideration before the first Court Hall of this Court, if the demanded money is not paid he would pursue the petition and secure an order to investigate into the alleged irregularity committed by the Swamiji of Mutt and petitioner by the Central Bureau of Investigation and other agencies, which deal with irregularities committed under the Foreign Exchange Regulation Act, 1973. 3. It is the case of petitioner that as and when the demand started mounting, during the last week of February, 2014 the matter was entrusted to an Advocate by name Sri. Arun Sham, who is the legal advisor of Mutt. When the said legal advisor interacted with the second respondent over telephone, the initial demand to the tune of Rs. 10,00,00,000/- later tapered down to Rs.5,00,00,000/- over a period of month after the matter was negotiated. Arun Sham, who is the legal advisor of Mutt. When the said legal advisor interacted with the second respondent over telephone, the initial demand to the tune of Rs. 10,00,00,000/- later tapered down to Rs.5,00,00,000/- over a period of month after the matter was negotiated. Subsequently, when Rs.50,00,000/- was demanded pending consideration of full-fledged settlement, it is stated that the complainant-petitioner approached the Girinagar Police and brought to the notice of police about the extortion call being received by him. It is also stated that the entire conversation, which had taken place between the legal advisor of Mutt, namely Sri. Arun Sham, at the instructions of his client with second respondent, is recorded in the cell phone of Advocate Sri. Arun Sham. Further, whenever there was occasion for him to meet the second respondent, the conversation, which has taken place between them is also videographed by him in his cell phone. 4. With these materials, when petitioner approached the Girinagar Police, they received the First Information Report, registered the same and assistance was also provided for laying a trap. Accordingly, in the trap, which is said to have taken place on 21.3.2014, in the presence of two witnesses, the second respondent and another accused by name Sri. Chandan were apprehended with the initial payment of cash of Rs. 10,00,000/-, which was demanded by them as basis for further discussion and to come to a settlement regarding the amount to be received for withdrawal of the PIL initiated by second respondent, which was pending on the board of First Court Hall of the Hon'ble High Court of Karnataka. 5. It is seen that after the trap was successfully conducted and the second respondent was arrested by the police, an application was filed by the second respondent-accused under Section 437 of Cr.PC. It is necessary to mention at this juncture that the complaint, which was initially received was recorded as offence in Crime No. 47/2014 for offences punishable under Sections 384, 504, 506, 34 and 511 of IPC. It is seen that the offences mentioned in the FIR i.e., the offence under Section 384 is non-bailable and other offences, namely offences under Sections 504 and 506 are bailable in nature, for which the punishment is only for a period of two years. It is seen that the offences mentioned in the FIR i.e., the offence under Section 384 is non-bailable and other offences, namely offences under Sections 504 and 506 are bailable in nature, for which the punishment is only for a period of two years. Hence, the application, which was filed by the second respondent under Section 437 of Cr.PC., was taken up for consideration by the IACMM Court, Bangalore. 6. In the said proceeding, the prosecution filed a detailed objection stating that though the offence, which is alleged against the second respondent is under Section 384 of IPC, for which punishment is for a period of three years, the gravity and nature of offence being quite serious i.e., utilising the name of judicial system for collecting the money, it should be viewed seriously. However, the learned Magistrate after hearing the learned counsel for accused as well as the learned Public Prosecutor has passed an order dated 2.4.2014 granting bail to second respondent herein/accused in said proceeding. Being aggrieved by the same, the complainant in Crime No. 47/2014 has come up in this petition filed under Section 482 of Cr.PC seeking to set aside the order dated 2.4.2014 and to order for arrest and remand of the second respondent herein to judicial custody until the investigation in the matter is concluded. It is also stated that though the charge-sheet is filed in the case, as on today it is only a preliminary charge-sheet which is filed and the investigation is still continuing. It is the case of petitioner that the second respondent, who is a practicing Advocate and said to be having wide contact with various departments, may try to tamper with the evidence, stall the investigation proceeding and may create problem to the investigation, which is still under progress in Crime No. 47/2014. Hence, the bail which is granted to second respondent is required to be recalled. 7. Hence, the bail which is granted to second respondent is required to be recalled. 7. In this petition, on service of notice, the second respondent entered appearance through counsel and opposed the petition on the ground that primarily the fling of petition under Section 482 of Cr.P.C., itself is incorrect when there is a specific provision under Section 439(2) of Cr.P.C., to seek cancellation of bail by moving the jurisdictional Sessions Court, Instead of approaching the Sessions Court, the petitioner/complainant has rushed to this Court by filing a petition under Section 482 of Cr.P.C., which is abuse of process of law. It is further stated that among the offences alleged against the second respondent the only offence which is non-bailable is Section 384 of IPC for extortion. In the instant case, since the act is not completed and it is only an attempt, it should be treated as a demand to extortion, hence the offence would not attract punishment in excess of punishment, which is to be imposed if the said offence is proved. The next line of contention is that even otherwise, the ingredients, which are available on record, would not indicate the committing of offence under Section 383 of IPC, which attracts Section 384 of IPC specifically for the purpose of punishment. 8. The learned Senior Counsel Sri. Tomy Sebastian appearing for the second respondent would further try to oppose this petition on the premise that the plain reading of Section 383 of IPC would indicate completion of offence. According to him, in the instant case, though there is an allegation of extortion, no amount is extorted, it is only in the guise of trapping the second respondent for alleged offence a sum of Rs. 10,00,000/- is offered, which is not based on his demand as and by way of extortion and it is only with an intention to trap him, the said amount is paid. Therefore, the ingredients, which are required to attract Section 383 of IPC not being there and taking into consideration the offence punishable under Sections 504 and 506 of IPC, which are basically bailable in nature and even if they are held to be proved, the punishment that could be imposed for said offences being maximum two years, no fault can be found with the order impugned and the same may be confirmed by rejecting this petition. 9. 9. By way of reply, the learned Counsel for petitioner would submit that if the offence is understood as per the provision, which is invoked, it may sound as an innocuous offence as defined under Section 383 of IPC. But, when the nature of offence is looked into by the conduct of the party, it is seen that as a responsible officer of the Court i.e., as a practicing Advocate, the second respondent has tried to extort money from the complainant by filing a false PIL in the High Court of Karnataka and utilised the same as a tool for extortion of money. He would also try to impress upon this Court stating that the very object of public interest, which is to encourage the general public to expose the cause of large section of society without any personal interest is abused in utilising the same for extortion of money for personal benefit of second respondent. It is further submitted that the second respondent being a responsible officer of the Court i.e, a practicing Advocate, he should not have stooped to the level of selling the honour and dignity of the court by filing a false and frivolous litigation before the Court and utilising the said litigation as means to extort money from the gullible general public. It is further contended that in the instant case a Mutt, which is involved in doing social service in the form of saving the cows and for which it is getting funds from various private individuals residing in India and abroad as well as by philanthropists and NGOs. Indeed, the second respondent having come to know the riches, which are received by the Mutt, has tried to stake an illegitimate claim in the form of extortion. Therefore, the same should not be viewed lightly, as in any other case and it should be viewed as an offence against the judicial system itself. Therefore, the allegation against him should not have been treated lightly by the learned Magistrate as in the case of other offences. 10. The learned Counsel also tried to impress upon the Court stating that the Courts should not get carried away with the quantum of punishment which an offence would attract, if it is proved. Therefore, the allegation against him should not have been treated lightly by the learned Magistrate as in the case of other offences. 10. The learned Counsel also tried to impress upon the Court stating that the Courts should not get carried away with the quantum of punishment which an offence would attract, if it is proved. On the contrary, it should be viewed from the angle the damage that it may likely to cause to the complainant, in particular and to the society in general. More particularly, in a case on hand where the amount which is entrusted to a Mutt by the general public is for the public cause, which is sought to be extorted by using the judicial proceedings in PIL as velvet gloves and by putting the Mutt and its officers under the threat of prosecution with false and frivolous cases resulting in the arrest of Plaintiff and other officers of the Mutt. Therefore, the same should be viewed seriously. Instead, the learned Magistrate after hearing the application has taken the view that the offence not being the one which could be related to either murder or rape, where the punishment could be in the nature of life imprisonment or for a period of more than ten years and the offence being simple in nature, which would attract punishment not beyond three years, the same could be considered for grant of bail. While doing so, he has not even looked into the material available on record. 11. After hearing the counsel for petitioner and respondent, this Court directed the Additional SPP to secure and produce the relevant material which is available with the prosecution. Accordingly, the Additional SPP, Sri. Keshava Murthy, furnished a bunch of documents which were collected by the prosecution at the time of investigation, which according to him, was available while apprehending the second respondent herein in the trap. The material available on record would indicate a prolonged conversation between the second respondent and the counsel for Mutt Sri. Arun Sham over a period of nearly one month, during which time on several occasions there is demand for money which commences with a staggering sum of Rs. 10,00,00,000/- initially and tapered down to the level of Rs. 2,00,00,000/-. Subsequently, second respondent settling down for an amount of Rs. Arun Sham over a period of nearly one month, during which time on several occasions there is demand for money which commences with a staggering sum of Rs. 10,00,00,000/- initially and tapered down to the level of Rs. 2,00,00,000/-. Subsequently, second respondent settling down for an amount of Rs. 10,00,000/- as initial payment keeping all his options open for further negotiation regarding the final amount to be fixed and the manner in which PIL, which is initiated by him before this Hon'ble Court, which is pending on the board of first court hall, should be withdrawn. Incidentally, it is also brought to the notice of this Court that when all these materials were brought to the notice of learned Magistrate, neither he had patience to look into the same nor made a reference thereof in the order, which is passed by him while granting bail. It is seen that even a robot if it were to be in his place, probably would have gone into the entire material available on record before passing the order. The learned Magistrate has passed the order impugned in more mechanical manner than a robot in not even looking into any of these things. 12. It is seen that in the order impugned there is no reference to any of the material except reproducing the exception clause in Section 437 of IPC and there is no attempt on the part of learned Magistrate to look into the allegations made against the second respondent. If it is in case of any other accused probably, this Court also would not have given such serious observation to them. Incidentally, it is by a practicing Advocate, who is taken on the role of Bar Council, given a responsible role to play in the society to alleviate the pain of poor and needy person, who come before the Court. A person who is placed in such a responsible position by the Bar Council and respected by the Court as practicing Advocate, has stooped to the level of an ordinary criminal in trying to make use of his right to file PIL as tool for extortion. A person who is placed in such a responsible position by the Bar Council and respected by the Court as practicing Advocate, has stooped to the level of an ordinary criminal in trying to make use of his right to file PIL as tool for extortion. In fact, his conduct is no less than that of a dacoit, who used arms and ammunition against innocent public to loot their money; he cannot also be considered in no way lesser than a person, who would threaten the life of an innocent with greed of money. Therefore, the reason which is given by the learned Magistrate in granting bail to the second respondent-accused is ridiculous, irresponsible, without applying his mind and the said order is passed in a mechanical manner. It is also seen that the learned Magistrate in his haste to increase his statistics for the month, has disposed of this petition as one more petition to add to figure of his monthly quota. It is rather sad to observe that when the dignity, respect and integrity of the judicial system is at stake, the learned Magistrate thought that it can be taken very lightly and ignored. In the facts and circumstances, this Court feel that the offences alleged against the second respondent being misuse of judicial procedure, unless he is proved innocent of the same, his conduct cannot be treated very lightly and he cannot be set free as if the offence alleged against him is yet another common offence in the books of the Indian Penal Code and granting him the largess of bail, would amount to allowing him to continue his trade of extortion. 13. So far as the contention of learned Counsel for second respondent that there is mistake on the part of complainant in filing an application under Section 482 of Cr.PC., instead of approaching the District Court by filing an application under Section 439(2) of Cr.PC., has not gone well with the Court for the reason that the said aspect is already decided by the Apex Court in the matter of Puran Etc., v. Rambilas and another, reported in AIR 2001 SC 2023 , which is subsequently followed in Gulabrao Baburao Deokar v. State of Maharashtra and Ors., reported in 2013(15) Scale 484 , which is referred at paragraph 30 in the said judgment, is as under: "30. In our view the objection raised by the Appellant cannot be sustained in view of what is observed by this Court in paragraph 17 in Puran v. Rambilas (supra) which reads as follows: "17. Further, even if it is an interlocutory order, the High Courts inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified." In the light of aforesaid judgments and the observations made therein, this Court is of the view that the ground urged by the counsel for second respondent that petitioner should have approached the District Court under Section 439(2) of Cr.PC., instead of approaching this Court in a petition under Section 482 of Cr.PC., does not stand to reason and the same is rejected. 14. In view of the aforesaid observations, this Court feel that the order passed by the learned Magistrate in granting bail to second respondent is an unjust act, which is passed without any proper reason, without looking into the material available on record and without even considering the gravity of offence, which is committed by the second respondent, which is not just an offence against the petitioner but, it is against the fraternity of Advocates because a particular act of one person would make the entire Advocates of the nation to hang their head in shame for no fault of them, thereby reducing the dignity of the profession. Therefore, the order of the learned Magistrate is required to be set aside. 15. With the aforesaid observations, this petition is allowed. The order passed by the learned Sessions Judge dated 2.4.2014 in Crime No. 47/2014 is set aside. While doing so, the prosecution is hereby directed to arrest the second respondent and to send him to judicial custody until the investigation is completed in totality in Crime No. 47/2014. Petition Allowed.