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Karnataka High Court · body

2020 DIGILAW 643 (KAR)

B. Rakesh v. State Of Karnataka And Another

2020-03-05

K.S.MUDAGAL

body2020
JUDGMENT 1. 'Whether continuation of the proceedings against the petitioner in Crime No.460/2018 of Madivala Police Station amounts to abuse of process of the Court and lead to the failure of the justice?' is the question involved in this case. 2. Respondent No.1 issued notification as per Annexure-C for recruitment for 164 post of Police Sub-Inspector (Civil). 3. The petitioner submitted application for the said post. Under Annexure-D the call letter he was called for physical suitability test scheduled on 13.11.2018 at 7.00 AM. On that day, petitioner appeared for the said test and was not qualified. He submitted representation as per Annexure-F to respondent No.1 on 14.11.2018 stating that on 13.11.2018 because of his ill-health he could not properly participate in the test and sought another opportunity for his physical suitability test. That was entertained by the Deputy Inspector General of Police, Bengaluru and he was given another opportunity to participate in the physical suitability test. 4. Annexure-G is the intimation regarding rescheduling the date of physical suitability test on 22.11.2018. Annexure-H is the call letter issued to the petitioner by respondent No.1 to take up ET&PST test on 22.11.2018 at 7.00 AM. 5. On 22.11.2018, respondent No.2 who was the member of recruitment committee filed a complaint before Madivala Police as per Annexure-B alleging that the petitioner suppressing the fact of he appearing for physical suitability test on 13.11.2018 managed to secure the second call letter and thereby he has cheated the recruitment authority. 6. The petitioner challenges the said proceedings in this case on the ground that as per Annexure-F the letter submitted by him he had clearly disclosed about he appearing for test on 13.11.2018 and there was no suppression of the fact much less the material fact. Therefore, he submits even if the proceedings are permitted to be continued they will not end in conviction and therefore, the proceedings are the abuse of process of the Court. 7. Reiterating the petition averments learned counsel for the petitioner, submits that there was no suppression of the material fact and if investigation is permitted to be continued that amounts to abuse of the process of the Court. 8. 7. Reiterating the petition averments learned counsel for the petitioner, submits that there was no suppression of the material fact and if investigation is permitted to be continued that amounts to abuse of the process of the Court. 8. Learned High Court Government Pleader fairly concedes that Annexure-F is the copy of the representation of the petitioner to the recruiting authority and Annexure-G and H are the copies of the communication and call letter issued by the recruiting authority to the petitioner. 9. In Annexure-F, the petitioner has clearly disclosed the fact of he appearing for the physical suitability test on 13.11.2018, but contended that on that day he could not participate effectively due to his medical condition and sought permission to appear on 23.11.2018. If the Rule did not permit to second attempt, the authority could have rejected the representation Annexure-F. Contrary to that they have entertained that and issued communication Annexure-G and call letter Annexure-H. 10. Therefore, even on looking into the prosecution records themselves no case of Section 420 of IPC is made out. The records produced by the petitioner are of the impeccable and sterling character to impeach the allegation of the offence under Section 420 of IPC. The case passes the test laid down by the Honble Supreme Court in Rajiv Thapur and Others v. Madan Lal Kapoor (2013) 3 SCC 330 which read as follows: '(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.' 11. Having regard to the material on record, even if the proceedings are allowed to be continued there is no chance of conviction of the petitioner as there is no material to constitute the offence under Section 420 of IPC. In that event the proceedings amount to abuse of process of the Court. 12. Therefore, the petition is allowed. The proceedings in Crime No.460/2018 of Madivala Police Station now pending on the file of the III Additional Chief Metropolitan Magistrate, Bengaluru are hereby quashed.