Allowed

C.S.Tubachi v. the State of Karnataka

Karnataka HC10 Apr 2014CRL.P/100272/2014

Case brief

AI extract

What is this about?

In a criminal petition, the High Court quashed FIR and complaint complained of criminal offences regarding employment and salary disputes. The court held allegations disclosed only civil causes and no criminal offence, allowing quashing under Section 482 CrPC.

What did the court decide?

Proceedings in Crime No.4/2014 punishable under Section 420 IPC and Section 3(1)(x) of SC/ST Act were quashed.

C.S.Tubachi Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^th DAY OF APRIL, 2014

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BEFORE:

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THE HON’BLE MR. JUSTICE K.N. PHANEENDRA

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CRIMINAL PETITION NO.100272/2014

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BETWEEN

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C.S.TUBACHI EDUCATION SOCIETY HUKKERI R/BY SHIR RAVINDRA SHIVARUDRAPPA SHETTI AGE: 78 YEARS, OCC: CHAIRMAN R/O. HUKKERI, DIST: BELGAUM

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SATYENDRA @ SATYEPPA KALLAPPA BALIKAI AGE: 87 YEARS, OCC: SECRETARY/ ADVOCATE R/O. HUKKERI, DIST: BELGAUM

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SUSHILA SHANKAR KORI AGE: 60 YEARS, OCC: DIRECTOR OF C S TUBACHI EDUCATION SOCIETY R/O. HUKKERI, DIST: BELGAUM

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SHRISHAIL BABURAO TUBACHI AGE: 65 YEARS, DIRECTOR OF C S TUBACHI EDUCATION SOCIETY OCC: BUSINESS, R/O. HUKKERI DIST: BELGAUM.

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SHIVANANDA VEERAPPA NULI DIRECTOR OF

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C S TUBACHI EDUCATION SOCIETY AGE: 57 YEARS, OCC: BUSINESS R/O. HUKKERI, DIST: BELGAUM

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SIDDESHWAR CHANNABASAPPA HEDDURSHETTI DIRECTOR OF C S TUBACHI EDUCATION SOCIETY, AGE: 59 YEARS, OCC: BUSINESS, R/O. HUKKERI DIST: BELGAUM

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ANAND MALLIKARJUN PATTANSHETTI DIRECTOR OF C S TUBACHI EDUCATION SOCIETY, AGE: 59 YEARS, OCC: BUSINESS, R/O. HUKKERI DIST: BELGAUM

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IRANA SHRISHAILAPPA TUBACHI DIRECTOR OF C S TUBACHI EDUCATION SOCIETY, AGE: 65 YEARS, OCC: BUSINESS, R/O. HUKKERI DIST: BELGAUM ... PETITIONERS

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(BY SRI. SANTOSH MALAGOUDAR, ADV. FOR SRI MOHAN A LIMBIKAI, ADV.)

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AND

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THE STATE OF KARNATAKA BY PSI, HUKKERI POLICE STATION RPTD THROUGH STATE PUBLIC PROSECUTOR SPP OFFICE, HIGH COURT OF KARNATAKA DHARWAD.

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GANGAPPA S/O. TAMMANNA NAIKAR AGE: 51 YEARS, OCC: TEACHER, NSF HIGH SCHOOL

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R/O. ANKALAGI VILLAGE TQ: GOKAK DIST: BELGAUM, ... RESPONDENTS

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(BY SRI.V.M. BANAKAR, ADDL.SPP FOR R1 SRI CHIDANAND, ADV. FOR R2)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C. SEEKING TO QUASH THE FIR AND COMPLAINT IN CRIME NO.4/2014 REGISTERED IN HUKKERI POLICE STATION DATED 10.01.2014 FOR THE OFFENCES P/U/S 3(1)(X) OF SC/ST ACT AND 420 R/W 34 OF IPC PENDING ON THE FILE OF THE IIIADDL. DIST. & SESSIONS COURT, BELGAUM.

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THIS CRIMINAL PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT PASSED THE FOLLOWING:

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O R D E R

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The petitioners are arrayed as accused in Crime

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No.4/2014 on the file of Hukkeri Police Station for the offence punishable under Section 3(1)(x) of SC & ST Act and 420 r/w. section 34 of Indian Penal Code, 1860.

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The petitioners approached this Court for quashing of the entire proceedings in the above said Crime number on several grounds. The learned

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Counsel for the petitioners elaborating his arguments in support of the petition averments specifically contended that initiation of the criminal proceedings on the basis of the FIR submitted by the respondent No.2 herein is illegal and it amounts to abuse of process of law.

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He further contends that if the entire allegations made in the FIR is translated into evidence, it will not constitute any criminal act on the part of the petitioners herein nor the said allegations constitute any offence in any of the penal laws for the time being in force. Therefore, the said complaint is filed only in order to wreck vengeance against the petitioners by making a civil dispute into one of the criminal case. Further, he contended that the contents of the complaint discloses that the petitioners have sought for a civil remedy before the police. Though some allegations are made in the complaint, with reference to appointment and sending of the report by the first

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petitioner – Institution to the Education department in respect of the appointment of the second respondent in the Institution. Except that, there is absolutely no allegations specifically mentioning the overt acts of the petitioners herein. Therefore, he contended that when the specific averments are not there, implicating the accused persons in the criminal proceedings cannot be continued, if it is so, it will amount to abuse of process of law. Therefore, he contends that the petition deserves to be allowed and the entire proceedings before the Hukkeri Police, deserves to be quashed.

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Per contra, the learned Counsel for the 2^nd

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respondent strenuously argued before me that the averments made in the complaint broadly satisfies the allegations of a criminal conduct against the petitioners. Though some civil relief also sought for in the said complaint, but nevertheless it also contains criminal intention to harass the second respondent by the

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petitioners. He also contends that it is too premature to analyze the contents of the complaint and to quash the

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entire proceedings at the threshold stage of investigation. Therefore, investigation cannot be scuttled down at the threshold and in view of the same, the petition deserves to be dismissed.

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In view of the above said rival contentions, before adverting to the factual matrix of this case, it is just and necessary to bear in mind the land mark judgment of the apex court reported in:

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“AIR 1992 SC 604 between State of Haryana and others Vs. Ch. Bhajanlal and others –

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wherein the Hon'ble apex Court though not exhaustively laid down the principles on which the courts can exercise the power u/s.482 of Cr.PC. But some of the guidelines have been issued in the said decision in my opinion, which are even as on today holds the

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field and those guidelines have consistently followed by the subsequent rulings of the apex court and other high courts.

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At head note E, the apex court has laid down that in the following categories of cases, the High Court may in exercise of the power under Article 226 of the Constitution of India or u/s.482 of the Cr.PC 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, power should be exercised very sparingly and that too in rarest of rare cases. The guidelines are as follows:

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(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.

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(2) Where the allegations in the First Information Report and other materials, if

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any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.

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(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.

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(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.

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(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

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there is sufficient ground for proceeding against the accused.

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(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.

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(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.”

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So far as this case is concerned, the court has to see whether the allegations made in the FIR or in the complaint, even if they are taken at their face value and

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accepted in their entirity, prima facie constitute any offence or make out a case against the petitioners.

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The court has also to see that even if the allegations are considered as true, as made in the FIR or complaint whether they are so absurd and inherently improbable on the basis of which no prudent person never reach a just conclusion that there is sufficient ground for proceeding against the accused. Finally, the court has to consider and find out whether a criminal proceedings is manifestly contended as malafide and whether the proceedings are maliciously initiated for wrecking vengeance and with a view to strive them to be private and personal grudge.

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The learned Counsel for the petitioners also drawn my attention to another ruling of the Supreme Court reported in –

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“ACR-2006-1-901 between Vijaya Rao Vs. State of Rajasthan – In this case, the Hon'ble Supreme Court has considered the contents of the complaint filed u/s.420 and 409 of IPC. At paragraph 3, it is specifically stated:

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EXCEPT using the expression “fraudulent misappropriation” and “mala fide intention”, the allegations in the complaint do not at all disclose as to how the appellant can be found guilty of the offence u/s.420 IPC. The ingredients constituting Section 420 are conspicuously lacking in the complaint. All the courts have failed to address themselves to the crucial question whether as far as the appellant is concerned any offence u/s.420 or for that matter any offence u/s.409 has been committed. Even going by the allegations in the complaint, allowing the criminal proceedings to go on against the appellant, would result in abuse of the process of the court. Hence, the proceedings in Complaint Case No.10 of 2000 on the file of the Chief Judicial Magistrate, Sikar are quashed as against the appellant.”

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In this background, the court has to ascertain and analyze the allegations made in the FIR filed by the

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second respondent. The complaint is a very lengthy in vernacular Kannada Language. The contents of the complaint can be, culled out and understand as follows:

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(a) “It is the case of the complainant (the second respondent) that he was working in the High School section as Head Master in the first petitioner – Institution from 9.6.1993 to 8.4.1999 for a period of six years Though he has served the said Institution as a Head Master, the petitioners particularly the Chairman of the first petitioner Institution has given advertisement in the paper called “Kannadamma” dated 18.3.1991 calling for the applications for Assistant Teachers to the High School Section. This person also filed an application, attended for the interview and on selection, he has been

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working as Assistant Teacher, in the High School Section.

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(b) It is also the case of the respondent No.2 that the petitioners have also given an order to the respondent to work in the Primary Section in the said Institution. When the matter came up for consideration for sending the recommendation for approval of the post of the respondent No.2, the Institution had not sent his name for approval to high school section, but the DDPI has not cleared the same for primary section for a period of two years. Thereafter, the Education Department has issued an order that the approval for the post in which the respondent No.2 was working cannot be approved for High

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School Section. It is also alleged that the petitioner No.1 – Institution gave an undertaking on 13.7.1995 that they will fill up the post in S.K. Pre-University College from SC/ST candidate otherwise they will keep the said post vacant. This was taken as an objection by the respondent No.2 that though he belong to SC community, they have not filled up the said post by means of giving the appointment to that post to the second respondent. Therefore, he suffered serious mental agony. Challenging this particular aspect, he went to the High Court in Writ Petition No.1558/2001 making all the Education Department Officers as parties and the Writ Petition came to be allowed and a direction was issued to the department to

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consider his contentions. After that, the Secretary of the Primary and Higher Secondary Education, has passed an order directing the petitioners to consider the request of the respondent No.2 within one month and pass appropriate orders. But in spite of that, the petitioners have not sent his name for approval to the High School section. Again, he approached the High Court challenging the said act of the petitioners but again the High Court has directed the competent authorities to continue the appointment of the petitioner in the said Institution. From 23.2.2003, he has been working in the first petitioner’s Institution.

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petitioners would have sent the proposal for appointment of the petitioners to the High School section that would have been approved by the competent department people. But intentionally, the petitioners have sent the proposal to the Education Department showing the petitioner working in the primary section. Therefore, he has suffered great loss, inconvenience at the hands of the petitioners.

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(d) It is further narrated that on 14.10.2004, the petitioners have

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dismissed respondent No.2 from the said post. Again he approached the court and the High Court has directed the petitioners to implement the interim order passed by

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the court and directed the respondent No.2 also to approach the Education Appellate Tribunal. Accordingly, it is specifically stated in the complaint that he approached the Education Appellate Tribunal in Appeal No.4596/2004 and the Court has passed an order of statusquo and directed the Education Secretary to re-consider the case of the respondent No.2. Again, he approached the Hon'ble High Court against the said order of the Education Appellate Tribunal. Again the High Court has passed an order on 25.8.2004 directed the petitioners to take him on duty. Therefore, he went and joined the services on 11.10.2005 and he has been working there.

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(e) It is further alleged that the

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petitioners have also passed an order on 9.7.2007 dismissing the respondent No.2 from service. He has protested the said act of the petitioners by sitting on hunger strike etc., It is further case that on 19.12.2007, again the petitioners have sent the proposal to the Government to fill up the vacant post by way of filling up the back log vacancy they have sent the name

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of the respondent to the Education Department and the Education Department has considered the same and on 9.4.2008, the said proposal was approved from ll.4.2008 he has been working as Assistant teacher in Kannada and History and he has been discharging his duties in the Institution and it is also stated that as

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per the orders of the Education Department he has been working in the said High School at Ankalagi, Gokak from 24.8.2011. Having said so, though he was removed twice from the department, but later his post has been approved and as on the date of the complaint, he has been working

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in the Institution.

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On the basis of the above said allegations, the

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respondent No.2 approached the police seeking relief that from 9.4.1999 to 10.4.2008 he has lost his legal entitlement of the salary and other allowances and his seniority etc., Therefore, he has asked before the police that the police have to investigate into the above said allegations and to secure his financial benefits and promotion etc., Reading the above said entire allegations in the complaint, the respondent No.2 wants to enforce his civil rights by means of filing a criminal

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complaint. There is absolutely no sort of allegation made in the complaint that what exactly would be the role of the petitioners herein and what offences they have committed. Even broadly analysing the materials on record, it narrowed down the allegations that some sort of promotion has not been given to him, his name has not been proposed to the High School section and his salaries have not been properly disbursed and allowances have not been property paid by the Institution. Such allegations at any stretch of imagination can be construed as an offence committed by the petitioners. Therefore, the remedy sought in the complaint cannot be in any manner achieved through the police investigation.

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In this regard, it is worth to mention here a decision of the Supreme Court reported in:

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“AIR 2008 SC 1702 between KLE Society and others Vs. Siddalingesh - Head note A –

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Inherent powers – Exercise of – To be cautious and careful – Court not to function as Court of appeal or of revision.

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Head Note B - S.482 – quashing of complaint – complaint by peon of College under Sections 403, 405, 515 IPC – Allegation that College Society had deducted certain amount from his pay on the pretext of returning it at the time of leaving job - Peon also filing petition under Section 33-C of the Industrial Disputes Act for salary on the ground that lesser amounts were paid and signatures for higher amount were taken - No mention made about any deductions – Facts clearly show that peon in his complaint has tried to make out a case that deduction was made with an object - Ingredients of Sections 403, 405 and 415 of Indian Penal Code, 1860 do not exist in the complaint. Therefore, complaint is liable to be quashed.”

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In this particular case also though the facts are little bit different, the respondent No.2 has tried to make out a case with regard to his promotion, non payment of the salary, non payment of the allowances,

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not recommending his name to the post in the High School section were sought to be projected in order to establish a case u/s.420 IPC as well as section 3(1)(x) of SC & ST (PA) Act. Even looking to the provision u/s.3(1)(x) of the SC/ST Act, there is absolutely no mention of any abusive words being used by the petitioners herein against the second respondent.

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The learned Counsel for the respondent No.2 contended that actually Sec.3(1)(ix) should have been invoked by the police, considering the factual aspect of the matter. Sec.3(1)(ix) defines that whoever not being a member of the SC/ST gives any false or frivolous information; to any public servant and thereby causes such public servant to use his lawful power to the or innocence of a member of the SC or ST. The allegations made in the complaint does not even disclose who actually given which false and frivolous information to the public servant and thereby causes such public

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servant to use his lawful power to the injury or annoyance of a member of a SC/ST. In the absence of elucidation of the factual aspects, even considering Sec.3(1)(ix) of the SC/ST Act, the said provision as also the contents of the complaint does not attract the said provision.

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In the above said circumstances, in my opinion, the analysis of the entire complaint averments does not constitute any offence. On the other hand, the fight between the parties before the High Court in the Writ Petitions and also proceedings before the Government and also proceedings before the Education Appellate Tribunal clearly discloses that the respondent No.2 in order to cause inconvenience and wreck vengeance against the petitioners, appears to have filed such a frivolous complaint against them. Hence, I am of the opinion that the petition deserves to be allowed. The entire proceedings in Crime No.4/2014 on the file

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of Hukkeri Police Station for the offence punishable under Section 402 IPC and Sec.3(1)(x) of the SC/ST Act on the file of the III Addl. District and Sessions Court, Belgaum, deserves to be quashed.

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Accordingly, the Petition is allowed. The proceedings in Crime No.4/2014 in its entirety is hereby quashed.

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Sd/JUDGE

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C.S.Tubachi v. the State of Karnataka

Case brief

What is this about?

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C.S.Tubachi v. the State of Karnataka

Case brief

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