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2016 DIGILAW 715 (KAR)

Ananth v. State of Karnataka

2016-09-23

ANAND BYRAREDDY

body2016
ORDER : Anand Byrareddy, J. 1. Heard the learned Counsel for the petitioner and the learned Government Pleader. 2. The petitioner is the de facto complainant and is aggrieved by the order passed by the Court of the Magistrate rejecting an application filed under Section 302(2) of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Criminal Procedure Code' for brevity). And therefore, the petitioner is before this court. The petitioner had filed a complaint in May 2014 before the Hosur-Sarjapur Layout Police and a case was registered in Crime No.287/2014 against one Venugopal and others for offences punishable under Sections 120-B, 468 and 471 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity). It was alleged that the mother of the petitioner was a deaf and dumb woman and she was residing with the grandmother of the petitioner in Bellandur village. It is stated that one Dayananda and Chandrareddy had filed a civil suit in OS 4830/2000 against the grandmother of the petitioner and others. It was decided in favour of the grandmother of the petitioner declaring that the suit schedule property was the self acquired property of the grand mother. It was alleged further that on 8.11.2013, the grandmother of the petitioner, Akkayamma had fallen down and was hurt and was admitted to a hospital and it was the mother of the petitioner who looked after her during that period and the accused had also come to the hospital on the pretext of attending to Akkayamma, but with evil intentions of usurping her property which stood in the name of the mother of the petitioner, as it was conveyed under a registered gift deed executed by Akkayamma in the year 2006. They had thus prepared a General Power of Attorney in the name of Venugopal and obtained the thumb impression of Akkayamma while she was ill and in hospital, making her to believe that she was putting her thumb impression on a document pertaining to discharge from the hospital. Both Akkayamma and the petitioner's mother were mislead into believing them. It is in this manner that a forged General Power of Attorney had been obtained to execute a gift deed and divide the properties mentioned therein. It is on this footing that a case had been instituted by the petitioner. Both Akkayamma and the petitioner's mother were mislead into believing them. It is in this manner that a forged General Power of Attorney had been obtained to execute a gift deed and divide the properties mentioned therein. It is on this footing that a case had been instituted by the petitioner. However, it is the petitioner's case that the matter was not being prosecuted competently by the Public Prosecutor concerned and therefore the petitioner had filed an application under Section 302 of the Cr.P.C., seeking permission to conduct the case. The trial court having rejected the application, the present petition is filed. The court below has rejected the application holding that there was no reason to allow the application and that the petitioner was in the habit of making repeated applications which causes delay and since the Additional Public Prosecutor was conducting the matter, there was no need to permit the petitioner to conduct the case. Even otherwise, the complainant could very well assist the prosecution and accordingly. 3. The learned counsel for the petitioner would submit that the reasoning of the court low is incorrect and there is absolutely no consideration of the petitioner's case. It is pointed out that a three-Judge Bench of the Supreme Court in the case of J. K. International v. State (Government of National Capital Territory of Delhi), (2001) 3 SCC 462 , was concerned with this very question and it was laid down as follows". "12. The private person who is permitted to conduct prosecution in the Magistrates court can engage a counsel to do the needful in the Court in his behalf. It further amplifies the position that if a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. It is open to the Court to consider his request. If the court thinks that the cause of justice would be served better by granting such permission the courts would generally grant such permission. Of course, this wider amplitude is limited to Magistrates courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. Of course, this wider amplitude is limited to Magistrates courts, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the Public Prosecutor. The limited role which a private person can be permitted to play for prosecution in the Sessions Court has been adverted to above. All these would show that an aggrieved private person is not altogether to be eclipsed from the scenario when the criminal court takes cognizance of the offences based on the report submitted by the police. The reality cannot be overlooked that the genesis in almost all such cases is the grievance of one or more individual that they were wronged by the accused by committing offences against them. " This legal position as laid down by the Supreme Court has been considered and reiterated in a more recent decision in Criminal Appeal 859/2016 decided on 6.9.2016 and since there was a contention that there was divergence of opinion in J. K. International (supra), and the subsequent judgment in Shiv Kumar v. Hukam Chand and another, (1999)7 SCC 467 , has concluded thus: "13. In J.K. International (supra), a three-Judge Bench was adverting in detail to Section 302, Criminal Procedure Code In that context, it has been opined that the private person who is permitted to conduct prosecution in the Magistrate's Court can engage a counsel to do the needful in the court in his behalf. If a private person is aggrieved by the offence committed against him or against any one in whom he is interested he can approach the Magistrate and seek permission to conduct the prosecution by himself. This Court further proceeded to state that it is open to the court to consider his request and if the court thinks that the cause of justice would be served better by granting such permission the court would generally grant such permission. Clarifying further, it has been held that the said wider amplitude is limited to Magistrate's Court, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the public prosecutor. 14. Clarifying further, it has been held that the said wider amplitude is limited to Magistrate's Court, as the right of such private individual to participate in the conduct of prosecution in the Sessions Court is very much restricted and is made subject to the control of the public prosecutor. 14. Having carefully perused both the decisions, we do not perceive any kind of anomaly either in the analysis or ultimate conclusion arrived by the Court. We may note with profit that in Shiv Kumar (supra), the Court was dealing with the ambit and sweep of Section 301, Cr.RC. and in that context observed that Section 302, Cr.P.C. is intended only for the Magistrate's Court. In J.K. International (supra) from the passage we have quoted hereinbefore it is evident that the Court has expressed the view that a private person can be permitted to conduct the prosecution in the Magistrate's Court and can engage a counsel to do the needful on his behalf. The further observation therein is that when permission is sought to conduct the prosecution by a private person, it is open to the court to consider his request. The Court has proceeded to state that the Court has to form an opinion that cause of justice would be best sub-served and it is better to grant such permission. And, it would generally grant such permission. Thus, there is no cleavage of opinion." Therefore, the view taken in J. K. International, (2001) 3 SCC 462 (supra) has been affirmed and fortified. 4. Consequently, if the court below is required to consider whether cause of justice would be best sub-served and it is better to grant such permission, as prayed for by the petitioner, it should generally grant such permission. The petitioner could not have been shut out from conducting the case as prayed for. Therefore, the matter is remanded to the court below as there is no consideration as required in law. Keeping in view the law laid down by the Supreme Court, the Court below shall reconsider the prayer of the petitioner and pass appropriate orders. The petition is accordingly disposed of.