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2016 DIGILAW 293 (KAR)

SIDDANNA v. BASSAYYA

2016-03-21

K.N.PHANEENDRA

body2016
ORDER : K.N. PHANEENDRA, J. 1. This petition is filed seeking quashing of the entire proceedings in CC No. 404/2004 pending on the file of the JMFC, Aland, arising out of a private complaint No. 15/2011. 2. I have heard the arguments of the learned counsel for the petitioners and the respondent. Perused the records of the Trial Court also. 3. The learned counsel for the petitioners contended that the complaint averments made available before this Court are not sufficient to constitute any offence against the petitioners. Secondly, it is contended that the complaint is barred by limitation. 4. Per contra, the learned counsel for the respondent submitted that the documents produced along with the complaint are sufficient to constitute the alleged offences against the petitioners. Therefore, they can be read as part of the complaint averments and therefore, cognizance taken by the learned Magistrate cannot said to be bad in law. The learned counsel for the respondent further contended that from the date of knowledge of the allegations made against the complainant, the complainant has filed the complaint which is within the period of limitation. Therefore, the complaint is not barred by time. 5. I have carefully perused the complaint averments. The entire complaint averments discloses that the complainant has submitted that the accused persons have lodged a false petition before the Deputy Commissioner and the Executive Magistrate, Gulbarga on 18.5.2007 making highly defamatory and derogatory contents in writing. Contents of the said letter/complaint was intended to cause irreparable damage to the status, dignity of the complainant, intending to harm or knowing or having reason to believe that such imputation will harm the reputation of the complainant. 6. In all the paragraphs of the complaint, it is invariably referred to the petition lodged by the accused persons before the Deputy Commissioner and the same being referred to the Tahasildar and the Tahasildar has submitted a report stating that all allegations made by the accused persons in the said complaint lodged before the Deputy Commissioner are false etc., But nowhere in the complaint, the complainant has stated actually as to what are the allegations made against the complainant and how those allegations are defamatory in nature and how those allegations are sufficient to constitute an offence u/s. 499 or Section 500 of the IPC. Nothing has been reiterated in the present complaint filed u/sec 200 of Cr.P.C. before the trial Court. 7. Apart from the above defect in the complaint, from paragraph 9 onwards, the complainant has stated about the past misconduct of the accused persons, registration of some cases against them by the Police to demonstrate that the accused persons are habitual offenders. At paragraphs 6 & 7, though some attempt has been made to submit that the allegations made by the accused persons before the Deputy Commissioner are baseless and false, and such allegations are made to tarnish the image of the complainant, but in those paragraphs nothing has been elicited as to how the accused have committed the offence u/s. 499 of IPC and what exactly the allegations made against the complainant. The other paragraphs of the complaint refers to good conduct of the complainant. Therefore, on overall reading of the complaint, there is absolutely no facts or circumstances in express terms stated in the complaint, which are sufficient to constitute any offence against the accused/petitioners. 8. Now, coming to the sworn statement recorded by the Magistrate, whereby, this complainant has stated that, before the Deputy Commissioner the accused petitioners have made allegations that, the complainant has involved in land grabbing activities and particularly illegally occupied land in Survey Nos. 295 to 311 totally 7 landed properties belonging to Sri Bommalinga Pattadevara Hiremath. Likewise, he has also stated that in the year 2006-07, the Revenue Inspector has conducted survey in respect of Survey Nos. 317 and 318 and the said lands were auctioned and this complainant has requested to hand over of those lands for the purpose of cultivation saying that he is ready to pay Rs. 10,000/- per year as cultivation charges and the Deputy Commissioner has fixed the said rate, and handed over the said lands to the complainant. It is also stated in the sworn statement that he has not threatened anybody much less the village people at any point of time. In the other paragraphs of the sworn statement, he has stated that he has produced so many documents before the Court which are self explanatory to explain the conduct of the accused persons. All these facts which are stated in the sworn statement does not find any place in the complaint. Therefore, there is no connection with the sworn statement and the complaint averments. All these facts which are stated in the sworn statement does not find any place in the complaint. Therefore, there is no connection with the sworn statement and the complaint averments. The witnesses examined on the side of the complainant are CWs.2 to 6. They have simply stated that accused persons have made many allegations against the complainant before the Revenue Officers and those allegations are false and have caused irreparable damage to the reputation of the complainant. The evidence is so vague and un-understandable as to what are the exact allegations made by the accused persons against the complainant and how they came to know about as to how they are defamatory with reference to the status of the complainant. Therefore, such evidence is also not sufficient to came to a conclusion that these witnesses have understood the allegations made and thereafter, came to the conclusion that the complainant has been defamed by the accused persons. 9. The learned counsel for the respondent tried to persuade this Court submitting that the Court has to look into the documents and that the documents can be be read into the contents of the complaint. But, I am not ready to accept such submission, because of the simple reason, the Court has to proceed in accordance with law and statute, and it cannot do anything which is against to the statutory principle. 10. In this background it is worth to note here Section 190 of Cr.P.C. which says the "Conditions requisite for initiation of criminal proceedings" and under what circumstances, the learned Magistrate can take cognizance of any offence, said provision reads as under. "190. 10. In this background it is worth to note here Section 190 of Cr.P.C. which says the "Conditions requisite for initiation of criminal proceedings" and under what circumstances, the learned Magistrate can take cognizance of any offence, said provision reads as under. "190. Cognizance of offences by Magistrates,– (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence- (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts; (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed (2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within the competence to inquire into or try." This provision makes it very much clear that the Magistrate can only take cognizance, upon receiving a complaint of facts which constitute such offence; upon a police report of such facts; upon information received from any person other than a Police Officer, or upon his own knowledge, that such offence has been committed. Section 200 of Cr.P.C. further empowers the learned Magistrate to proceed further with the complaint and to record the sworn statement of the complainant and his witnesses, only if the learned Magistrate has taken cognizance under Section 190 of Cr.P.C. Therefore, it is crystal clear that unless the facts narrated in the complaint constitute any offence, the learned Magistrate has no power to take cognizance, in that event, he cannot proceed to record the sworn statement of the complainant or the witnesses. 11. As I have already narrated, even on plain reading of the complaint, it does not furnish any facts disclosing any offence being constituted against the accused persons. In this background, it is worth to note here the decision of the Hon'ble Apex Court reported in, AIR 1992 SC 604 between State of Haryana and others v. Ch. 11. As I have already narrated, even on plain reading of the complaint, it does not furnish any facts disclosing any offence being constituted against the accused persons. In this background, it is worth to note here the decision of the Hon'ble Apex Court reported in, AIR 1992 SC 604 between State of Haryana and others v. Ch. Bhajan Lal and Others, wherein the Hon'ble Apex Court has observed that in the following categories of cases, the High Court may, in exercise of powers under Article 226 of the Constitution of India or u/s. 482 of Cr.P.C, may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, the power should be exercised sparingly and that too in the rarest of rare cases. "(1) Where the allegations made in the FIR 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) -- not applicable (3) -- not applicable (4) -- not applicable (5) Where the allegations made in the FIR 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 proceedings 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 malafide 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." 12. In view of the above said rulings, if the facts narrated in the complaint are understood in proper perspective and if they do not constitute any offence, cognizance taken by the Magistrate is bad in law, then all further proceedings amounts to abuse of process of law. In view of the above said rulings, if the facts narrated in the complaint are understood in proper perspective and if they do not constitute any offence, cognizance taken by the Magistrate is bad in law, then all further proceedings amounts to abuse of process of law. Therefore, I am of the opinion so far as this case is concerned, there is absolutely no facts narrated in the complaint which are sufficient to constitute any offence. Therefore, I have no hesitation to quash the entire proceedings leveled against the accused persons. 13. Though some documents are produced along with the complaint, I am reluctant to look into those documents because complaint averments themselves are not sufficient to constitute any offence. Hence, the following: ORDER The petition is allowed. Consequently, the complaint registered against the accused persons in CC No. 404/2014 for the offences punishable under Sections 499, 500 read with Sections 109, 120B of IPC is hereby quashed. Office is hereby directed to send back the records to the Trial Court forthwith.