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2017 DIGILAW 605 (KAR)

Syed Salauddin Ahmed v. State

2017-03-16

B.A.PATIL

body2017
ORDER : B.A. Patil, J. This petition is filed by the petitioners/accused Nos.1 to 4 under Section 482 of Cr.P.C., praying to quash the charge sheet in Crime No.97/2012 of Humnabad Police Station, Dist. Bidar (C.C. No.184/2015 pending on the file of JMFC, Humnabad). 2. Brief facts of the case are that, a de facto complainant Sakaram filed a private complaint on 03.07.2012 alleging that accused No.1 has registered an Educational and Charitable Trust under the name and style of 'Sadat Educational and Charitable Trust'. Accused Nos. 2 to 4 are the Managing Trustees of the said Trust. Accused No.1 started a school in the name and style of 'A1-Qalam Model Primary School'. In the said school, accused No.4 was appointed as a Head Mistress. It is further alleged in the complaint that the accused persons have prepared a Pre-Matric scholarship list for the year 2011-12 and submitted to Director of Minorities, Government of Karnataka and were succeeded in getting approval of the scholarship list from the Government of Karnataka. It is further alleged that the enquiry held by the BEO on the complaint made by the complainant indicated that the school run by the accused/petitioners is illegal and on a letter by the BEO, Humnabad, the Pre-Matric scholarship sanctioned to the school was withheld. It is further alleged in the complaint that a mischief has been made by the accused in creating false and fabricated documents with an intention to cheat the public and Government. They were running school without any valid documents and without obtaining permission from the competent authorities. The learned JMFC referred the matter to investigation under Section 156(3) to the jurisdictional police and the jurisdictional police have registered a case in Crime No.97/2012. As such, the petitioners are before this Court. 3. I have heard the learned counsel appearing for the petitioners and the learned High Court Government Pleader appearing for the respondent-State. 4. Sri. Anilkumar Navadagi, learned counsel for the petitioners would contend that petitioner No.1 has obtained the necessary permission from BEO, Humnabad and has registered Educational and Charitable Trust and school, thereafter he prepared the scholarship list and got approved from the Government of Karnataka. 4. Sri. Anilkumar Navadagi, learned counsel for the petitioners would contend that petitioner No.1 has obtained the necessary permission from BEO, Humnabad and has registered Educational and Charitable Trust and school, thereafter he prepared the scholarship list and got approved from the Government of Karnataka. He would also contend that petitioner No.1 has not played any fraud or has not cheated anybody, the school has been run in accordance with law and the complainant only with an intention to harass and humiliate the petitioners has falsely lodged the private complaint and on the basis of the said complaint, a case has been registered against the accused persons by the respondent-police. He would further contend that it is the BEO, who has to prove the case of cheating, when a valid certificate has not been produced by the petitioners before him. He would further contend that the investigating authority has no jurisdiction to investigate by interfering in such matter. Further, he would contend that it is only on personal vendetta, as the complainant is a court-bird, he has filed a false complaint with an economic motive. On these grounds, he prays for allowing the petition. 5. On the contrary, the learned High Court Government Pleader appearing for the respondent-State would contend that the document, which is said to have been obtained from the BEO, Humnabad for starting the Educational Institution itself is in doubt. The said document has to be proved at the time of trial. At this premature stage, it cannot be held that the said document is a valid document. He would also contend that the petitioners will be having an efficacious remedy to file an application before the trial Court under Section 239 of Cr.P.C. and the Court below can hold the detail enquiry on the said document and then thereafter it can decide the same. He would further contend that it is a premature stage, the matter has been referred only for the purpose of investigation and after investigation the charge sheet has been filed. Further, he would contend that at this juncture the provisions of Section 482 of Cr.P.C. cannot be invoked. As such, he prays for dismissal of the petition. 6. He would further contend that it is a premature stage, the matter has been referred only for the purpose of investigation and after investigation the charge sheet has been filed. Further, he would contend that at this juncture the provisions of Section 482 of Cr.P.C. cannot be invoked. As such, he prays for dismissal of the petition. 6. The main grounds urged by the learned counsel for the petitioners are that petitioners have obtained valid certificate to run the school and now it cannot contend that petitioners have cheated the government and other authorities by filing false documents. 7. I have gone through the contents of the complaint and other material produced along with the petition. 8. No doubt, learned counsel for the petitioners would contend that petitioners have obtained a valid registration certificate to start the school and thereafter, they have prepared the list of students for pre-matric scholarship list in the year 2011-2012 and the same was submitted to the Directorate of Minorities Government of Karnataka and after verification, the same has been approved by the Government. The said facts are considered to be question of facts. When the charge sheet has been filed after conducting investigation on the basis of the complaint, I feel that this Court cannot exercise power under Section 482 of Cr.P.C., to elaborately discuss and decide about the documents and facts of the case. The said proposition of law has been held in a decision in the case of State of Orissa and another v. Saroj Kumar Sahoo, reported in 2005 (13) SCC 540 at paragraphs 9 and 10, which reads as under: "9. In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 10. 10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Cr.P.C. and the categories of cases where the High Court may exercise its power under it relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : ( AIR 1992 SC 604 ). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: '(1) Where the allegations made in the first information report 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) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (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 Act concerned (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 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide 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." 9. Keeping in view the above facts and circumstances of the case and the proposition of law as indicated by the Hon'ble Apex Court in the above decision, at this juncture, this Court will be restrained from giving a decision on the issue involved as deep and elaborate discussion and verification of documents is very much essential. As such, the petition is dismissed. 10. However, liberty is given to the petitioners to file appropriate application under Section 239 of Cr.P.C., and to take all the grounds urged before this Court and the Trial Court without being influenced by the observations made in this petition can appreciate the material produced before it and decide the case on merits. 11. 10. However, liberty is given to the petitioners to file appropriate application under Section 239 of Cr.P.C., and to take all the grounds urged before this Court and the Trial Court without being influenced by the observations made in this petition can appreciate the material produced before it and decide the case on merits. 11. In view of dismissal of the petition, I.A.1/2016 filed for stay does not survive for consideration and is accordingly dismissed.