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2021 DIGILAW 859 (KAR)

Chandmiya v. State Of Karnataka

2021-09-14

K.SOMASHEKAR

body2021
JUDGMENT : 1. This petition is filed by the petitioners seeking for quashment of the complaint in PCR No.107/2019 and consequently registration of the case in FIR No.353/2019 pending before the Court of the Civil Judge & JMFC, Bagepalli, Chikkaballapura District and so also seeking quashment of the order dtd. 5/10/2019 passed in the aforesaid criminal proceedings initiated by the complainant against the accused. 2. Heard the learned counsel Shri D.P. Mahesh for petitioners/Accused Nos.1 to 3, who appears before court physically and so also the learned HCGP for Respondent No.1. Respondent No.2/Syed Babajan is the complainant who initiated criminal prosecution against Accused Nos.1 to 4 vide Annexure-"A". By exercising power under Sec. 156(3) of the Cr.P.C., the Civil Judge & JMFC, Bagepalli, had referred the said complaint to the Bagepalli P.S. for investigation and to submit a report thereon, and awaiting the report by 3/1/2020. Subsequent to referring the case to the police having jurisdiction to proceed for investigation, the Bagepalli Police have registered the case in Cr.No.353/2019 by recording an FIR dtd. 24/10/2019 vide Annexure-"C". 3. Learned counsel for petitioners has referred to a judgment rendered by the Hon'ble Supreme Court of Indian in the case of Priyanka Srivatsava and another Vs. State of UP & Others reported in AIR 2015 SC 1758 . In this judgment, the Hon'ble Supreme Court has addressed the issues and the scope of Sec. 156(3) Cr.P.C. and Ss. 340 to 344 as regards an application under Sec. 156(3) Cr.P.C. seeking a direction for registration of FIR, wherein it is held that it must be supported by an affidavit. In Head Note B of the said judgment, it is held that - "Addressing the issue of Sec. 156(3) - duty and approach of Magistrate while exercising power under Sec. 156(3) - preconditions to be satisfied - Law clarified - Prevention of abuse of process -- Vigilance required of Magistrate" 4. In this judgment, the learned counsel for the petitioners who is present before court physically mainly concentrated on Paragraph No.20 of the said judgment relating to the concept of Sec. 156(3) Cr.P.C. and so also the order to register an FIR for offences mentioned in the application and also Sec. 156 of Cr.P.C. relating to the police officer's power to investigate cognizable cases. Sec. 156 Cr.P.C. states that, any officer in charge of a Police Station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. 5. In the judgment cited supra, the Hon'ble Supreme Court has referred several decisions such as: (1) RAMDEV FOOD PRODUCTS (P) LTD. VS. STATE OF GUJARAT ( (2015) 6 SCC 439 )) (2) LALITA KUMARI vs. STATE OF U.P. ( (2014) 2 SCC 1 )) (3) MADHAO vs. STATE OF MAHARASHTRA ( (2013) 5 SCC 615 )) (4) ANIL KUMAR vs. M.K. AIYAPPA ( (2013) 10 SCC 705 )) (5) MANHARIBHAI MULJIBHAI KAKADIA vs. SHAILESHBHAI MOHANBHAI PATEL ( (2012) 10 SCC 517 )) (6) PRIYANKA SRIVASTAVA vs. STATE OF U.P. (REVERSED) ((CRL.MISC.WP No.24561/2011 DECIDED ON 23/12/2011 (ALL)) (7) MAKSUD SAIYED vs. STATE OF GUJARAT ( (2008) 5 SCC 668 )) (8) DILAWAR SINGH vs. STATE OF DELHI ( (2007) 12 SCC 641 )) (9) MOHD. YOUSUF vs. AFAQ JAHAN ( (2006) 1 SCC 627 )) (10) CREF FINANCE LTD. vs. SHREE SHANTHI HOMES (P) LTD ( (2005) 7 SCC 467 )) (11) P. SUNDARRAJAN vs. R. VIDHYA SEKAR ( (2004) 13 SCC 472 )) (12) DEVARAPALLI LAKSHMINARAYANA REDDY vs. V. NARAYANA REDDY ( (1976) 3 SCC 252 )) These judgments relate to the concept of Sec. 156(3) Cr.P.C. and so also the power of the Police Officer under Sec. 156, which is stated in Paragraphs 19 and 20 of the said judgment. 6. The second limb of arguments advanced by the learned counsel for petitioners is that civil in nature of the case between the complainant and the accused has turned into criminal in nature with the initiation of the case in PCR No.107/2019 by the complainant against the accused who are petitioners before this court. 7. 6. The second limb of arguments advanced by the learned counsel for petitioners is that civil in nature of the case between the complainant and the accused has turned into criminal in nature with the initiation of the case in PCR No.107/2019 by the complainant against the accused who are petitioners before this court. 7. When once the case has been referred by exercising power under Sec. 156(3) of the Cr.P.C., the domain is vested with the Investigating Agency under Sec. 173(2) Cr.P.C. to investigate the case and during investigation, to record the statement of witnesses and so also to secure the material documents and so also to draw the mahazar in the presence of panch witnesses in order to lay the charge-sheet against the accused persons relating to the ingredients of the offences lugged against them. So far as Sec. 167(2)(a)(i) and (ii) relating to offences which are classified in the Schedule of the Cr.P.C., the investigation must be completed within a period of 90 days or 60 days. But according to Sec. 173(8) of the Cr.P.C., even after filing of a charge-sheet by the Investigating Agency under the relevant provisions of the Cr.P.C., domain is vested with him to file an additional charge-sheet as well. That is the concept of Sec. 173(8) of the Cr.P.C. Sec. 170 of the Cr.P.C. makes it clear that during investigation, the I.O. has to secure the material documents and so also record the statement of witnesses and if found to be satisfied with the evidence, then only to lay the charge-sheet against the accused before the court having jurisdiction. 8. Whereas in the instant petition, learned counsel has produced the document Annexure-"D" in respect of civil case which has been initiated by the plaintiff against the defendants in O.S.No.87/2001. It is in between Smt. Raziya Begum who is the plaintiff and this suit has been initiated by her against Defendants 1 to 8. The suit is for declaration and permanent injunction in respect of the suit schedule properties depicted therein. 9. Subsequent to referring the case by exercising power under Sec. 156(3) Cr.P.C., the Bagepalli P.S. having jurisdiction have registered the case in Cr.No.353/2019 by recording an FIR dtd. 24/10/2019 for offences punishable under Ss. 420, 504, 506 of IPC, 1860. The suit is for declaration and permanent injunction in respect of the suit schedule properties depicted therein. 9. Subsequent to referring the case by exercising power under Sec. 156(3) Cr.P.C., the Bagepalli P.S. having jurisdiction have registered the case in Cr.No.353/2019 by recording an FIR dtd. 24/10/2019 for offences punishable under Ss. 420, 504, 506 of IPC, 1860. The accused are alleged to have committed cheating in respect of the issues which have been narrated in Column No.10 of the FIR in detail in respect of the land in Sy.No.1/3, to an extent of 2 acres 11 guntas and Sy.No.16/1 to an extent of 6 guntas, even creating the sale deed documents as well. On 14/2/1977, they had created a sale deed document by forging the thumb impression of a deceased person by name Abdul Kareem, which finds place in the material documents. Further on 11/12/1980 a sale deed has been created illegally by forging the thumb impression of Smt. Raziya Begum thought petitioners were not connected to her. The said thumb impression finds place in the documents of the sale deed. The same is said to have been done by colluding with the revenue officials. These are all the facts which have been narrated in Column No.10 of the FIR which has been recorded by the Bagepalli P.S., Chikkaballapura District. 10. As already stated, a civil in nature of a case has been instituted which is in between Smt. Raziya Begum who is the plaintiff who initiated a suit against the defendants Abdul Azeez and others in O.S.No.87/2001 vide Annexure-"D". 11. Sec. 2(d) of Cr.P.C. relates to 'complaint', meaning any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. 12. In the instant case, private complaint has been initiated by the complainant who is Respondent No.2 and complainant is a gravamen of the incident narrated in his complaint in detail, which is in conformity with the sum and substance of Clause 10 of the FIR recorded by the Bagepalli P.S. Sec. 190(1)(a)(b)and (c) of Cr.P.C. relates to cognizance. Cognizance is a judicial action and it is in terms of a judicial process. Cognizance is a judicial action and it is in terms of a judicial process. But in the instant case, subsequent to initiation of a private complaint against the accused, the case in PCR.No.107/2019 has been registered by the Court of the Civil Judge (Jr.Dn) & JMFC, Bagepalli and based upon exercising power under Sec. 156(3) Cr.P.C., the case in Cr.No.353/2019 is pending before the aforesaid court having jurisdiction. Moreover, under Sec. 156(3) of the Cr.P.C., the matter has been referred to the Bagepalli P.S. in Chikkaballapura District to proceed for investigation and to submit a report. But Sec. 173(2) Cr.P.C. it is for investigation and that domain is always vested with the Investigating Agency. But we cannot anticipate whether the Investigating Agency would file a challan/final report/charge-sheet or any other report. But the matter is under process for investigation by the Bagepalli Police having jurisdiction where the matter has been referred by exercising power under Sec. 156(3) of the Cr.P.C. Whereas the learned counsel for the petitioners in this matter seeks for intervention under Sec. 482 of the Cr.P.C. 13. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code. This is the first limb of the aforesaid provision of Sec. 482 Cr.P.C. for intervention by exercising inherent powers of the High Court. The second limb of the aforesaid provision is to prevent the abuse of the process of any court and the third limb of the said provision is to otherwise secure the ends of justice. 14. The scope and object of the said provision of Sec. 482 Cr.P.C. is equally applicable to both the complainant who is the gravamen of the incident narrated in the oral or written complaint as well as the accused being the gravamen of the accusation. But in the instance case, the complainant has approached the court of law by initiating a private complaint against the accused by narrating the incident which is to be termed as charges of the offences leveled against the accused. The petitioners/accused they are the gravamen of the accusation narrated in the private complaint initiated by the complainant against the accused. Therefore, it does not arise to dwell in this matter as regards the factum of charges narrated in the private complaint in detail. The petitioners/accused they are the gravamen of the accusation narrated in the private complaint initiated by the complainant against the accused. Therefore, it does not arise to dwell in this matter as regards the factum of charges narrated in the private complaint in detail. But inherent power under Sec. 482 of the Cr.P.C. should be exercised sparingly, judicially, judiciously and cautiously. Therefore, the petitioners who are arraigned as accused in FIR No.353/2019 registered by the Bagepalli P.S. Chikkaballapura District, do not deserve seeking quashment of the aforesaid crime registered by the police having jurisdiction to investigate the case. Accordingly, I proceed to pass the following: ORDER The petition filed by petitioners/accused under Sec. 482 Cr.P.C. is hereby rejected.