Partly allowed

Mr. Chamu Krishna Shastry v. State by Honnavara Police Station

Karnataka HC1 Feb 2019CRL.P/100590/2018

Case brief

AI extract

What is this about?

High Court acquitted five petitioners (accused Nos. 1-3 and 6) by allowing their petitions to quash proceedings and dismissed three petitions where additional accused were summoned. Court held Section 319 Cr.P.C. requires material stronger than mere prima facie case before summoning supplemental accused, which was absent here. Court ruled inquiry under Section 202 Cr.P.C. not mandatory for issuing

What did the court decide?

Criminal Petitions No.100491/2018, 100503/2018, 100590/2018, 100688/2018 allowed; Proceedings against accused Nos. 4 to 7 quashed; Criminal Petitions 100591/2018 & 100592/2018 dismissed.

Mr. Chamu Krishna Shastry Vs State by Honnavara… — Criminal Trial and Appeal | Karnataka HC (2019)

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CRL.P.NO.100591/2018 & connected matters

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IN THE HIGH COURT OF KARNATAKA AT DHARWAD

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DATED THIS THE 1^ST DAY OF FEBRUARY 2019

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL PETITION NO.100591 OF 2018 C/W

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CRIMINAL PETITION NOS.100592/2018, 100590/2018, 100491/2018, 100503/2018 & 100688/2018

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IN CRL.P.NO.100591/2018 BETWEEN:

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C.M.N. SHASTRY S/O LATE CHA. MU. ISHWARA SHASTRY AGE ABOUT 61 YEARS EXECUTIVE PRESIDENT SREE UMAMAHESHWARA SEVA TRUST (R) HOSAGUNDA, POST NANDITALE SAGAR TALUK, SHIVAMOGGA DIST- 577 412. ... PETITIONER

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(BY SRI PADMANABHA MAHALE, SENIOR COUNSEL FOR SRI S.M. PATIL, ADV.)

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AND

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STATE BY HONNAVARA POLICE STATION UTTARA KANNADA DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH.

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MR. B.R. CHANDRASHEKHAR S/O RAMABALAKRISHNA HEGDE AGE ABOUT 38 YEARS R/AT BADAGANI POST HONNAVARA HONNAVARA TALUK, UTTARA KANNADA. ... RESPONDENTS

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CRL.P.NO.100591/2018 & connected matters

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(BY SRI PRAVEEN K. UPPAR, HCGP FOR R-1; SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI P.F. GOUDAR, ADV., FOR R-2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN CC.NO.49/2018 ON THE FILE OF THE PRL. JMFC, HONNAVAR, UTTARA KANNADA DISTRICT IN RELATION TO THE OFFENCES U/S 120B, 384, 389, 504, 506, 511 R/W SEC. 34 OF IPC IN SO FAR AS THE PETITIONER IS CONCERNED.

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IN CRL.P.NO.100592/2018 BETWEEN:

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MR. DIVAKAR SHASTRI S/O LATE CHA MU ISHWARA SHASTRI AGED ABOUT 58 YEARS

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R/AT ‘RAAGA’, NO.42, 27^TH CROSS ROAD

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10^TH MAIN, NEAR BNM COLLEGE BANASHANKARI 2^ND STAGE BENGALURU

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MRS. PREMALATHA W/O DIVAKARA SHASTRI AGED ABOUT 55 YEARS R/AT ‘RAAGA’, NO.42, 27^TH CROSS ROAD 10^TH MAIN, NEAR BNM COLLEGE BANASHANKARI 2^ND STAGE BENGALURU

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... PETITIONERS

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(BY SRI PADMANABHA MAHALE, SENIOR COUNSEL FOR SRI S.M. PATIL, ADV.)

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AND:

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STATE BY HONNAVARA POLICE STATION UTTARA KANNADA DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH

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MR. B.R. CHANDRASHEKHAR S/O RAMA BALAKRISHNA HEGDE AGE ABOUT 38 YEARS

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CRL.P.NO.100591/2018 & connected matters

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R/AT BADAGANI POST HONNAVARA HONNAVARA TALUK, UTTARA KANNADA ... RESPONDENTS

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(BY SRI PRAVEEN K. UPPAR, HCGP FOR R-1; SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI P.F.GOUDAR, ADV., FOR R-2)

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IN CRL.P.NO.100590/2018 BETWEEN:

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MR. CHAMU KRISHNA SHASTRY @ KRISHNA SHASTRY S/O LATE CHA. MU. ISHWARA SHASTRY AGE ABOUT 62 YEARS R/O SANSKRIT PRACHARAK NO. 25 DEEN DAYAL UPADYAYA MARG ROUSE AVENUE, NEW DELHI- 110002 NOW RESIDING AT SAMSKRIT PROMOTION FOUNDATION GAUSHALA MARG, 11201/5, 2^ND FLOOR DORIWALA, DELHI-110006

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... PETITIONER

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(BY SRI PADMANABHA MAHALE, SENIOR COUNSEL FOR SRI S.M. PATIL, ADV.)

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AND

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STATE BY HONNAVARA POLICE STATION UTTARA KANNADA DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH

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MR. B.R. CHANDRASHEKHAR S/O RAMABALAKRISHNA HEGDE AGE ABOUT 38 YEARS

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R/AT BADAGANI POST HONNAVARA

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CRL.P.NO.100591/2018 & connected matters

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HONNAVARA TALUK, UTTARA KANNADA.

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... RESPONDENTS

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(BY SRI PRAVEEN K. UPPAR, HCGP FOR R-1; SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI PRASHANT F. GOUDAR, ADV., FOR R-2)

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IN CRL.P.NO.100491/2018 BETWEEN:

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MR. GANGADHARA SHASTRY S/O LATE CHA. MU. ISHWARA SHASTRY AGE ABOUT 66 YEARS R/AT F-15 SHRIKUMAR SOCIETY PANDIT NEHRU ROAD VAKOLA SANTACRUZ EAST, MUMBAI 400055. ... PETITIONER

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(BY SRI PADMANABHA MAHALE, SENIOR COUNSEL FOR SRI S.M. PATIL, ADV.)

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AND

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STATE BY HONNAVARA POLICE STATION UTTARA KANNADA DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA DHARWAD BENCH.

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MR. B.R. CHANDRASHEKHAR S/O RAMABALAKRISHNA HEGDE AGE ABOUT 38 YEARS R/AT BADAGANI POST HONNAVARA HONNAVARA TALUK, UTTARA KANNADA ... RESPONDENTS

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(BY SRI PRAVEEN K. UPPAR, HCGP FOR R-1; SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI PRASHANT F. GOUDAR, ADV., FOR R-2)

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CRL.P.NO.100591/2018 & connected matters

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IN CRL.P.NO.100503/2018

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BETWEEN:

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MR. B. PADMANABA SHARMA S/O BELA VISHNU ADIGA AGED ABOUT 49 YEARS ASTROLOGER R/AT ACHARYA MANTAPAM KADAPPASERE, IRINJALAKUDA THIRSSUR DISTRICT KERALA STATE – 680 121

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... PETITIONER

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(BY SRI SUBHAS AND RAJESH RAI K., ADVS.)

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AND

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STATE BY HONNAVARA POLICE STATION UTTARA KANNADA DISTRICT REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA

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DHARWAD BENCH – 580 001

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MR. B.R. CHANDRASHEKHAR

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S/O RAMA BALAKRISHNA HEGDE AGE ABOUT 38 YEARS

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R/AT BADAGANI POST HONNAVARA HONNAVARA TALUK, UTTARA KANNADA – 581 334 ... RESPONDENTS

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(BY SRI PRAVEEN K. UPPAR, HCGP FOR R-1; SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI. P.F. GOUDAR, ADV., FOR R-2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS DATED 29.01.2018 IN CC.NO.49/2018 (CRIME NO.342/2014) PASSED BY THE

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CRL.P.NO.100591/2018 & connected matters

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PRL. JMFC, HONNAVAR OF TAKING COGNIZANCE FOR THE OFFENCE PUNISHABLE UNDER SECTION 120B, 153A, 153B, 384, 389, 420, 504, 506, 511 R/W 34 OF IPC AND ETC.,

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IN CRL.P.NO.100688/2018

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BETWEEN:

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B.T.VENKATESH S/O B.N. TRISULI AGED ABOUT 55 YEARS FORMER STATE PUBLIC PROSECUTOR PRACTICING ADVOCATE C/O CHAMBERS AT REACH LAW NO.1/1, 1^ST FLOOR 1^ST CROSS, KUMAR COT LAYOUT BANGALORE - 560 001

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... PETITIONER

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(BY SRI R.M. JAVED, ADV.)

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AND

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STATE OF KARNATAKA

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THROUGH HONNAVARA POLICE STATION UTTARA KANNADA DISTRICT REP. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENCH AT DHARWAD

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SRI B.R. CHANDRASHEKHAR S/O RAMA BALAKRISHNA HEGDE AGE ABOUT 38 YEARS, R/AT BADAGANI , HALADIPURA HONNAVARA TALUK,

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UTTARA KANNADA ... RESPONDENTS

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(BY SRI PRAVEEN K. UPPAR, HCGP FOR R-1; SRI S.M. CHANDRASHEKHAR, SENIOR COUNSEL FOR SRI P.F. GOUDAR, ADV., FOR R-2)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER OF TAKING COGNIZANCE AND ISSUANCE OF PROCESS AGAINST THE PETITIONER HEREIN IN CC.NO.49 OF 2018 (CRIME NO.342/2014 OF HONNAVAR POLICE STATION) BY THE CIVIL JUDGE & JUDICIAL MAGISTRATE

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CRL.P.NO.100591/2018 & connected matters

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FIRST CLASS, HONNAVAR, DATED 09.02.2018 (ANNEXURE-D1) FOR THE OFFENCES PUNISHABLE UNDER SEC. 120B, 384, 389, 504, 506, 511 R/W SEC. 34 OF IPC.

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THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.1.2019 AND COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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“Whether the proceedings in C.C.No.49/2018 on the file of Principal J.M.F.C., Honnavara, Uttara Kannada District, are abuse of the process of the Court” is the question involved in these cases.

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Petitioners in all these cases are accused Nos.1 to

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7 as set out in the table below:

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SL.No.	Case No.	Petitioners	Rank as accused
1.	Crl.P.100491/18	Gangadhara Shastry	Supp. Accused No.4
2.	Crl.P.100503/18	B.Padmanaba Sharma	Supp. Accused No.7
3.	Crl.P.100590/18	Chamu Krishna Shastry	Accused No.5
4.	Crl.P.100591/18	C.M.N. Shastry	Accused No.3
5.	Crl.P.100592/18	Divakar Shastri Premalatha	Accused No.1 Accused No.2
6.	Crl.P.100688/18	B.T.Venkatesh	Accused No.6

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CRL.P.NO.100591/2018 & connected matters

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For the purpose of convenience, the parties will be

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referred to henceforth with their ranks before the trial Court.

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Second respondent B.R.Chandrashekar is the complainant before the trial Court. He was working as Secretary in Shree Ramachandrapura Mutt of Gokarna Samsthana. The Spiritual head of the said Samsthana is one Sri Raghaveshwara Bharathi Swamiji. Complainant was the Coordinator in conducting Raamakatha Cultural/Spiritual Programme of Shree Ramachandrapura Mutt.

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The first accused served in various offices in the

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management of the said Mutt from 2005 to 2010. Second accused is the wife of the first accused. She was the prime vocal artist in Raamakatha programme up to June 2014. Accused Nos.3 to 5 are the brothers of the first accused.

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Third accused had formed a Trust for development of Sri Umamaheshwara Temple of Hosagunda. Sri

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Raghaveshwara Bharathi Swamiji was the Honorary President

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CRL.P.NO.100591/2018 & connected matters

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of the said Trust. Fourth accused is a practicing Advocate in

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Mumbai. Fifth accused is resident of Delhi and said to be the

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person involved in promotion of Sanskrit language and member of Sanskrit Promotion Foundation Delhi. Sixth accused is an advocate and former State Public Prosecutor at Bengaluru. Seventh accused is an Astrologer based at Trissur District, Kerala State.

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Before 2013, Gokarna Sri Mahabaleshwara

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Temple, was handed over to Shree Ramachandrapura Mutt. Thereafter there were several disputes regarding the handing over of the temple to Shree Ramachandrapura Mutt. Two organizations called ASTRA and Gokarna Hitharakshana Samithi had filed Public Interest Litigation (PIL) before this Court against the Shree Ramachandrapura Mutt. Several litigations were initiated in that regard by some persons against the seer of the Mutt.

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In 2013, the seer of Ramachandrapura Mutt

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reconstituted administrative committee of the Mutt. Accused Nos.1 and 2 were relieved from the services of Mutt.

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CRL.P.NO.100591/2018 & connected matters

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One Dr.Gajanana Sharma, the lyricist in Raamakatha

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programme group filed complaint before Channammanakere Achukattu Police Station alleging that on 12.07.2014 and 15.07.2014 some anonymous persons called him on his cell phone No.9449596841 coercing him to make allegations against the Seer of the Mutt and his people that, in the guise of spirituality and religion, the Seer is sexually abusing the female devotees of the Mutt and artists of Raamakatha programme group and intimidating the persons objecting the same and he should give statement to that effect in media, before Police, Human Rights Commission and Women’s Commissions, otherwise himself and his family will be killed and if he abides the caller’s demand, they will pay him whatever money he demands.

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Smt.Deepika, vocal artist of Raamakatha

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programme group also filed complaint before Honnavara Police alleging that, she was intimidated over her cell phone not to participate in Raamakatha programme, otherwise she

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CRL.P.NO.100591/2018 & connected matters

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has to face the consequences. That complaint was registered

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in Crime No.214/2014 of Honnavara Police Station.

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Sri.Sathyamurthy Balila, the husband of Shankari

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Murthy Balila another female vocal artist of Raamakatha programme group filed complaint before Sullia Police alleging that on 12.07.2014 an anonymous person intimidated her making call on her cell phone No.9449366520 not to participate in Raamakatha programme.

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One Raghavendra Venkataramana Madyastha, the

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tour manager of seer of Mutt filed complaint in Crime No.337/2014 of Honnavara Police Station alleging that some anonymous person made a call threatening that Swamiji should renounce the seat of the Mathadipathi, failing which they will cause harm to his life and disrepute him in media.

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Second respondent filed complaint before

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Honnavara Police on 17.08.2014 alleging that on 17.08.2014 at 3.35 p.m. accused No.1 called him on his cell phone

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CRL.P.NO.100591/2018 & connected matters

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No.9449595203 and phone No.080-25908644 and insisted to connect him to speak to Swamiji and when he declined the demand on the ground that Swamiji is in Programme, caller stated that they are aware of the complaints filed by artists of Mutt and people of the Mutt against them and they are not scared by that. It was alleged that accused threatened that, if Swamiji wants to escape his dethroning from the seat of the Mutt, he should pay Rupees three crores and deliver the cash at the place specified by him, otherwise his wife (2^nd accused) is going to file complaint of sexual abuse against Swamji and defame him in Press, Electronic media, etc. Second respondent further alleged that accused threatened that they have the support of some influential people, if their demand is not conceded they will arrange to broadcast sensational news in Electronic media and leaving suicide note they will commit suicide and made grievance about relieving of accused Nos.1 and 2 from the services of Mutt.

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CRL.P.NO.100591/2018 & connected matters

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On such complaint, first respondent Police

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registered FIR in Crime No. 342/2014 for the offences punishable under Sections 120B, 153A, 153B, 384, 389, 420, 504, 506, 511 r/w Section 34 of I.P.C. and Section 66(A) of Information Technology Act 2000.

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Accused No.1 & 2 were arrested in the said case on 26.08.2014 and released on bail on 16.09.2014. Accused No.3 was granted bail on 25.09.2014. When the investigation by Honnavara Police was half way, in September 2014, the Government issued notification transferring the investigation of the case from Honnavara Police to C.I.D. Bengaluru. The C.I.D./Special Investigating Agency took more than 2½ years for investigation and in March 2017 submitted ‘B’ summary report to the effect that no offence is made out.

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The learned Magistrate issued notice of ‘B’ summary report to the second respondent. Second respondent filed protest petition under Sections 200 and 319 of Cr.P.C. against accused Nos.1 to 7 on 04.09.2017. The

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CRL.P.NO.100591/2018 & connected matters

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learned Magistrate vide order dated 29.01.2018 took

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cognizance of the offence under Sections 120B, 153A & 153B, 384, 389, 420, 504, 506, 511 r/w Section 34 of I.P.C. against the petitioners.

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The learned Magistrate after taking cognizance recorded sworn statement of the complainant and marked Exs.C.1 to C.59. Then after hearing the complainant, the learned Magistrate vide order dated 09.02.2018 held that there are sufficient grounds to proceed against the petitioners for the offences punishable under Sections 120B, 384, 389, 504, 506, 511 read with Section 34 IPC and ordered to issue process against them to take up trial for the said offences.

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Sri Padmanabha Mahale, learned Senior Counsel

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for Sri.S.M.Patil, learned Advocate on record for the petitioners/accused Nos.1, 2, 3, 4 & 5, Sri.Subhash and Sri.Rajesh Rai.K., learned Counsels appearing for petitioner/accused No.7 and Sri.R.M.Javed, learned Counsel for the petitioner/accused No.6, reiterating the grounds of the

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CRL.P.NO.100591/2018 & connected matters

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petitions seek to assail the impugned proceedings on the following grounds:

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i) The complainant has absolutely no locusstandi to file the complaint and he was not authorized to file the complaint.

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ii) As all the accused were the residents of the place beyond territorial jurisdiction of the learned Magistrate, the Magistrate has committed error in issuing the process against them;

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iii) Inclusion of supplementary accused Nos.4 to 7 is contrary to the language of Section 319 Cr.P.C.

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iv) The reading of the complaint/protest petition itself shows that no case was made out against the accused and there was no prima facie case for issuing summons;

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v) The impugned order of rejection of ‘B’ summary report is without any sustainable reasonings;

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vi) The order taking cognizance and issuing of process is without application of mind;

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CRL.P.NO.100591/2018 & connected matters

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vii) The learned Magistrate does not state what material was considered while taking cognizance and issuing process;

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viii) The reasoning of the learned Magistrate that on filing the protest petition ‘B’ summary report loses its existence or worth is unsustainable;

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ix) The allegation against fourth accused that he vetted the complaint of accused No.2, even if accepted, such act is only in discharge of his professional duty and that does not fasten him any criminal liability;

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x) Allegations against accused No.7 was that on consultation, he gave advice regarding auspicious day to file the complaint which again does not have any criminal intention. Therefore taking cognizance against him is unsustainable;

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xi) In the protest petition, absolutely there are no allegations against fifth accused;

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xii) The only allegation against accused No.3 is that he started the Uma Maheshwara Trust and there are no allegations of extortion against him;

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CRL.P.NO.100591/2018 & connected matters

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xiii) At the relevant time, accused No.6 was State Public Prosecutor, therefore Section 197 of Cr.P.C. barred the Court from taking cognizance against him without sanction order of Competent Authority. Thus order is without application of mind;

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xiv) The allegation against accused No.6 in the protest petition did not make out any case of extortion.

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In support of their contentions they relied upon the following judgments:

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Dr.Ravikumar vs. Mrs.K.M.C.Vasantha and Another ILR 2018 KAR 1725;

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Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar and Anr. AIR 2017 Supreme Court 2392;

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R.S.Nayak v. A.R.Antulay, LAWS(SC) 1986 464;

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K.S.Joseph v. Philips Carbon Black Ltd and Anr., AIR 2016 Supreme Court 2149;

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Vijay Dhanuka Etc. v. Najima Mamtaj Etc., AIR 2014 SC (Supp) 756;

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Hardeep Singh v. State of Punjab and others, (2014) 3 Supreme Court Cases 92;

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CRL.P.NO.100591/2018 & connected matters

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Jogendra Yadav v. State of Bihar , (2015) 9 Supreme Court Cases 244;

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Brindaban Das and Ors. v. State of West Bengal, Manu/SC/0012/2009 : AIR 2009 SC 1248

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Michael Machado & Anr. v. Central Bureau of Investigation & Anr., Manu/SC/0103/2000 : AIR 2000 SC 1127

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Smt. Asha & Ors. v. State of Karnataka, Crl.R.P.231/2016 D.D. 30.03.2016;

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CBI, Hyderabad v. K.Narayana Rao, Crl.A.1460/2012

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Adalat Prasad Vs Rooplal Jindal & Others, (2004) 7 Supreme Court Cases 338

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Subramanium Sethuraman Vs. State of Maharashtra & Another, (2004) 13 Supreme Court Cases 324

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Sri N.K.Sharma Vs Abhimanyu, (2005) 13 Supreme Court Cases 213

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Everest Advertising (P) Ltd Vs State Govt. of NCT of Delhi & Others, (2007) 5 Supreme Court Cases 54

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Bholu Ram Vs. State of Punjab & Another, (2008) 9 Supreme Court Cases 140

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Iris Computers Limited Vs. Askari Infotech Pvt. Ltd & Others (2015) 14 Supreme Court Cases 399.

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Per contra, Sri.S.M.Chandrashekhar, learned

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Senior counsel for Sri.Prashant F.Goudar, learned Advocate

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CRL.P.NO.100591/2018 & connected matters

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on record for second respondent seeks to support the

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impugned proceedings on the following grounds:

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i) Against the order of taking cognizance and issuing process, a petition under Section 482 of Cr.P.C. does not lie. Therefore, the petitions are not maintainable.

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ii) The materials collected by the Honnavara Police including the statement of witnesses recorded under Section 164 Cr.P.C. by the learned Judicial Magistrate disclose sufficient material to proceed against the accused;

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iii) Abruptly the investigation was transferred to C.I.D which was designed act of vested interests. After transfer, C.I.D. Police took 2½ years to file ‘B’ summary report that itself shows that the Special Investigation Agency worked as a caged parrot;

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iv) The C.I.D. Police Officer gone to the extent of over looking the statements of the witnesses recorded by the learned Magistrate in preference to the statements allegedly recorded by himself and even those statements were manipulated one.

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CRL.P.NO.100591/2018 & connected matters

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v) Investigating Officer of C.I.D. pressurized and coerced the witnesses to give statements to suit the case of the accused;

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vi) Honnavara Police based on the confessional statements of accused Nos.1 to 3 had recovered the electronic gadgets of accused No.1 and 2 which contained incriminating material against all the accused. The Officer who filed ‘B’ summary report conveniently over looked that;

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vii) Section 319 Cr.P.C. empowers the Court to issue process, if Court finds materials to proceed against the supplementary accused;

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viii) The order of taking cognizance and issuing process depict the due application of mind and contains sound reasons;

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ix) Section 202 Cr.P.C. does not totally bar the learned Magistrate from issuing process but only states that without holding the inquiry, the learned Magistrate cannot issue process.

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x) The materials on record show that accused No.6 tried to coerce and influence the investigating Officer for release of accused No.1 and 2 from the custody.

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CRL.P.NO.100591/2018 & connected matters

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Such act of accused No.6 was not in discharge of his official duty. Therefore Section 197 Cr.P.C. is not applicable;

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xi) If at all accused feel that there is no material, their remedy is to seek discharge and not for quashing of the proceedings.

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In support of his contentions, he relied upon the

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following judgments:

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Prabhu Chawla –vs- State of Rajasthan, (2016) 16 SCC 30;

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Nupur Talwar –vs- Central Bureau of Investigation (2012) 2 SCC 188;

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S.K.Sinha, Chief Enforcement Officer –vsVideocon International Ltd. and Ors, Appeal (Crl.) 175/2007;

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Emperor –vs-. Sourindra Mohan Chuckerbutty, Indian Law Reports, Criminal Revision (1910) March 2007;

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Superintendant and Remembrancer of Legal Affairs, West Bengal –vs- Abani Kumar Banarjee, 1950 SCC Online Cal 49;

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Devarapalli Lakshminarayana Reddy and Others –vs- Narayana Reddy and Ors, (1976) 3 SCC 252;

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R.R. Chari –vs- State of Uttar Pradesh, AIR 1951 SC 207;

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CRL.P.NO.100591/2018 & connected matters

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Jamuna Singh and Ors. –vs- Bhadai Shah, AIR 1964 SC 1541;

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Muhammed Basheer Solo Arts –vs- State of Kerala and Ors. Crl.Misc.No.292/2008;

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Vijay Dhanuka and Ors. –Vs- Najima Mumtaz and Ors. (2014) 14 SCC 638;

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Smt. Nagawwa –vs- Veranna Shivalingappa Konjalgi and Ors. (1976) 3 SCC 736;

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Hardeep Singh –vs- State of Punjab and Ors. (2014) 3 SCC 92;

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V.S.Joshi & Another –vs- N.G.Bhat Chitrigi & Another ILR 2006 KAR 735.

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Re: Maintainability

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Learned Counsel for the second respondent argued

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that against order of taking cognizance and issuance of process, a revision petition lies under Section 397 Cr.P.C. and therefore, the petitions under Section 482 Cr.P.C. are not maintainable.

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The petitioners are challenging the impugned proceedings not only on the ground of validity of the order taking cognizance and issuing process, but mainly on the ground that the said proceedings are the abuse of the process

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CRL.P.NO.100591/2018 & connected matters

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of the court. The petitions for quashing of the proceedings on the ground of abuse of the process of the court lie only under Section 482 Cr.P.C. If the petitioners fail to satisfy that contention then the petitions will fail.

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Apart from that, in Adalat Prasad , Subramanium Sethuraman , N.K.Sharma and Iris Computers Limited ’s cases referred to supra, the Hon’ble Supreme Court has held that in such cases, the petition under Section 482 Cr.P.C. is maintainable. Therefore, there is no merit in the contention that petitions under Section 482 Cr.P.C. do not lie.

¶233

Guidelines regarding quashing under Section 482

¶234

Cr.P.C.

¶235

In these petitions, the petitioners are urging the court to quash the impugned proceedings/orders exercising the inherent powers conferred under Section 482 of Cr.P.C.

¶236

The Hon’ble Supreme Court in Rajiv Thapar and Others –vs- Madan Lal Kapoor (2013) 3 SCC 330 has laid

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down the guidelines for exercising the inherent powers by the

¶240

High Court to quash the criminal proceedings as follows:

¶241

“28. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution/ complainant against the accused. It is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations leveled by the prosecution/complaint, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complaint, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is endless list of judgments rendered by this Court declaring legal position that in a case where the prosecution / complainant has leveled allegations

¶242

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bringing out all ingredients of charge(s) leveled, and have placed material before the court, prima facie evidencing the truthfulness of the allegations leveled, trial must be held.

¶245

The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the

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assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

¶249

Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C:

¶250

30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and

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¶253

indubitable i.e., the material is of sterling and impeccable quality?

¶254

30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges leveled 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?

¶255

30.3. 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?

¶256

30.4. 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?

¶257

30.5. If the answer to all the steps is in the affirmative , the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. Such exercise of power, besides doing justice

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& connected matters

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.”

¶262

(Emphasis supplied)

¶263

This Court has to examine the rival contentions of

¶264

the parties applying the above touchstone principles to find out whether a case for quashing is made out.

¶265

Re : locus-standi:

¶266

Learned Counsel for the accused contended that the

¶267

alleged threat of extortion was against seer of the Mutt and not against respondent No.2, therefore, he has no locus standi

¶268

to file the complaint. As per the complaint, the extortive phone calls were made to respondent No.2 though the target was the seer of the Mutt. Therefore, the first hand information of the alleged offence was within the personal knowledge of the second respondent. Under such circumstance, respondent No.2 was the direct witness of the alleged offence and was the proper person to set the law into

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motion. Had the seer of the Mutt were to file the complaint, his version in the complaint would have been only a hearsay statement.

¶272

Under the Indian Penal Code or the Code of Criminal Procedure or under any other law, there is no bar for any other person setting the law into motion for the aforesaid offences unlike the bar for certain offences like bigamy, disobedience to order duly promulgated by the public servant, defamation, etc. punishable under Sections 188, 494 and 500 IPC. Therefore, there is no merit in the contention that

¶273

the complaint / protest petition of the second respondent in the matter was without locus standi.

¶274

Re: issuance of summons u/s Section 202 Cr.P.C. to the persons beyond the territorial jurisdiction of the Magistrate:

¶275

Relying on the judgments of the Hon’ble Supreme

¶276

Court in Vijay Dhanuka , etc . and K.S.Joseph referred to supra, it was contended that none of the accused were the ordinary residents within the jurisdiction of the Magistrate,

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therefore, the order taking cognizance and issuing process is illegal. In those judgments referring to Section 202 Cr.P.C., it was held that whenever the accused reside beyond the territorial jurisdiction of the Magistrate, before issuing process it is mandatory for the court to conduct inquiry.

¶280

In the case on hand, the alleged act of extortion took

¶281

place within the territorial jurisdiction of the JMFC Court, Honnavar. Section 190 Cr.P.C. does not bar taking of cognizance of an offence which took place within its territorial jurisdiction. However, Section 202 Cr.P.C. states that the Magistrate shall postpone the issue of the process if the accused is residing beyond his territorial jurisdiction.

¶282

Section 202 Cr.P.C. further says that the Magistrate shall hold inquiry into the case himself before proceeding to issue the process. In the case on hand, the Magistrate passed order to issue process on holding such inquiry viz., on recording the sworn statement of the complainant on the

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protest petition. Therefore, there is no merit in the contention

¶286

that the order is violative of section 202 Cr.P.C.

¶287

Re: Stage of invoking Section 319 Cr.P.C.

¶288

Learned Counsel for the accused argued that

¶289

accused Nos.4 to 7 were not the accused in the original complaint and they were arrayed as accused in the protest petition. It was further argued that at the stage of taking cognizance and issuing process, Section 319 Cr.P.C. cannot be invoked and that can be invoked only at the stage of the trial.

¶290

Section 319(1) Cr.P.C. reads as follows:

¶291

“ 319. Power to proceed against other persons appearing to be guilty of offence –

¶292

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused , the court may proceed against such person for the offence which he appear to have committed.”

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Section 2(g) defines the term “inquiry” as follows:

¶296

“Inquiry” means every inquiry, other than a trial

¶297

conducted under this Code by the Magistrate.

¶298

It is the settled position of law that the term taking cognizance means an act of a Magistrate taking judicial notice of an offence. Issuance of process to the accused under Section 200 to 204 Cr.P.C. involves the examination of the complainant and applying the mind to the material on record. Therefore, the said two stages are covered under the term “inquiry”. Under such circumstances, there is no merit in the contention that Section 319 Cr.P.C. can be invoked only at the stage of the trial.

¶299

Apart from that, in the case on hand, the complaint filed before the Police had culminated in ‘B’ summary report.

¶300

The Magistrate issued notice of the said report to the complainant seeking his say on the same. In reply to such notice, the complainant filed protest petition seeking the prosecution of the original accused as well as accused Nos.4

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to 7. On recording the sworn statement of the complainant,

¶304

the learned Magistrate proceeded to issue the summons to all the accused including the supplemental accused Nos.4 to 7.

¶305

The Hon’ble Supreme Court in Hardeep Singh –vs-

¶306

State of Punjab and others and the connected matters (2014) 3 SCC 92 on reference about the powers of the court

¶307

in invoking Section 319 of Cr.P.C. formulated the following questions and answered the same in para-54 held as follows:

¶308

“Question (i) – What is the stage at which power under Section 319 IPC can be exercised?”

¶309

It is thus aptly clear that until and unless the case reaches the stage of inquiry or trial by the court, the power under Section 319 Cr.P.C. cannot be exercised. In fact, this proposition does not seem to have been disturbed by the Constitution Bench in Dharam Pal (CB)⁷ . . . . . .”

¶310

In our opinion, the stage of inquiry does not contemplate any evidence in its strict legal sense, nor could the legislature have contemplated this inasmuch

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as the stage for evidence has not yet arrived. The only material that the court has before it is the material collected by prosecution and the court at this stage prima facie can apply its mind to find out as to whether a person who can be an accused, has been erroneously omitted from being arrayed or has been deliberately excluded by the prosecuting agencies. This is all the more necessary in order to ensure that the investigating and prosecuting agencies have acted fairly in bringing before the court those persons who deserve to be tried and to prevent any person from being deliberately shielded when they ought to have been tried. This is necessary to usher faith in judicial system whereby the court should be empowered to exercise such powers even at the stage of inquiry and it is for this reason that Legislature has consciously used separate terms, namely, inquiry or trial in Section 319 Cr.P.C.

¶314

(emphasis supplied)

¶315

It was further held that the word “evidence” referred

¶316

in Section 319 Cr.P.c. includes the statements recorded by the Magistrate during the course of the proceedings under Section 200 to 202 Cr.P.C. In the light of the above said

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judgment, the contention that Section 319 Cr.P.C. cannot be

¶320

invoked until the stage of trial is reached is unsustainable.

¶321

Re: Show cause notice to the supplemental accused under Section 319 Cr.P.C. at the pre-summons stage:

¶322

Relying on the judgments of the Hon’ble Supreme

¶323

Court in Jogendra Yadav ’s case referred to supra, learned Counsel for accused Nos.4 to 7 argued that before including any supplemental accused, they shall be given notice of hearing to oppose the application. Jogendra Yadav ’s judgment rendered again based on the judgment in Hardeep Singh ’s case referred to supra.

¶324

In Hardeep Singh ’s case, the matter was referred to

¶325

the Constitutional Bench on the powers of the court in invoking section 319 Cr.P.C. Question (v) in the reference was as follows:

¶326

“Question (v)- Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not charge-sheeted or who have been discharged?”

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While dealing with the above said question, the

¶330

Hon’ble Supreme Court in paras-112 to 116 of the judgment held that the person not named in the FIR or the charge sheet can be summoned under Section 319 Cr.P.C.

¶331

Referring to the power under Section 398 Cr.P.C. of summoning an accused, who was once discharged, it was held that the proviso to the said section makes the issuance of the show cause notice to such accused mandatory before so summoning the discharged accused.

¶332

In Jogendra Yadav ’s case, the accused, who were not charge sheeted, were sought to be arraigned after the evidence of some witnesses were recorded. When their petition under Section 482 Cr.P.C. against the order of their inclusion under Section 319 Cr.P.C. was pending before the High Court, the Sessions Court had discharged them under Section 227 Cr.P.C. In that context, it was held that hearing of such accused is necessary.

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In Iris Computer’s case referred to supra, the

¶336

Hon’ble Supreme Court held that, for obvious reasons the stages of taking cognizance and issuing process do not provide for hearing the summoned accused. It was held that such stages are only preliminary stages and the stage of hearing of the accused arises at subsequent stages provided for in the latter provisions in the Code of Criminal Procedure.

¶337

Under these circumstances and in the light of the judgment of the Constitutional Bench in Hardeep Singh ’s case and the other judgments referred to supra, the contention that accused Nos.4 to 7 were entitled to show cause notices at pre-summoning stage is untenable.

¶338

Re: The contention that order taking cognizance shall be preceded by rejection of ‘B’ summary report :

¶339

Relying on the judgment of this Court in Dr.Ravikumar –vs- Mrs.K.M.C.Vasantha and Another ILR

¶340

2018 KAR 1725 and Dr.Rajeshwari –vs- The State of

¶341

Karnataka by West Police Station, Raichur ILR 2017

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KAR 507, it was contended that the Magistrate should pass

¶345

an order regarding rejection of the ‘B’ summary report and then only shall proceed to take the cognizance. Therefore whether the order taking cognizance should be preceded by the order of rejection of ‘B’ summary report is the question.

¶346

The Magistrate in this regard relies on the judgment of this

¶347

Court in G.Krishnaprakash’s case referred to supra.

¶348

48. In G.Krishna Prakash -vs- State of Karnataka by

¶349

SPP ILR 2008 3569, this Court held as follows:

¶350

“3. It is just and necessary to note that on filing

¶351

of ‘B’ report, the original complainant will have to

¶352

be notified with regard to filing of ‘B’ report, giving sufficient opportunity to appear before the Court and have his say in the matter. If the original complainant does not make out any justifiable ground for accepting ‘B’ report and if he does not appear before the court within the time prescribed for his appearance, the Court would be justified in accepting ‘B’ report, looking to the contents of the same. But however, if the original complainant appears before the court and

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files his protest petition to ‘B’ report and opts to examine himself and other witnesses in support of his case, the legal recourse that is left to the Magistrate is to treat such protest petition as original complaint filed U/s. 200 Cr.P.C. The ‘B’ report, along with the material produced therein looses importance and such material would be of no value. Then thereafter, the court will have to look into the averments made in the protest petition and the contents of the sworn statements and arrive at a conclusion as to whether the same makes out a prima facie case for issuance of process to the accused. The question of acceptance or rejection of ‘B’ report at that stage would arise only in the event the complainant does not make out a prima facie case for issue of process. However, the court will have to ascertain whether the material produced in the form of protest petition and the sworn statements of the complainant and witnesses if any examined make out a prima facie case to issue process or if the material so produced is deficient, it may terminate the proceedings as provided U/s. 203 of Cr.P.C., and if there is prima facie case made out, process shall be issued as provided U/s 204 Cr.P.C.”

¶356

(emphasis supplied)

¶357

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49. Further in Bhagwant Singh –vs- Commissioner of

¶360

Police & Another AIR 1985 SC 1285, the Supreme Court

¶361

has held as follows:

¶362

“4. Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of S.173 comes up for consideration by the Magistrate, one of two different situations may arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things: (1) he may accept the report and take cognizance of the offence and issue process or (2) he may disagree with the report and drop the proceeding or (3) he may direct further investigation under sub-section (3) of S.156 and require the police to make a further report. The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses: (1) he may accept the report and drop the proceeding or (2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or (3) he may direct further investigation to be made by the police under sub-section (3) of

¶363

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Section 156. Where, in either of these two situations, the Magistrate decides to take cognizance of the offence and to issue process, the informant is not prejudicially affected nor is the injured or in case of death, any relative of the deceased aggrieved, because cognizance of the offence is taken by the Magistrate and it is decided by the Magistrate that the case shall proceed. But if the Magistrate decides that there is no sufficient ground for proceeding further and drops the proceeding or takes the view that though there is sufficient ground for proceeding against some, there is no sufficient ground for proceeding against others mentioned in the First Information Report, the informant would certainly be prejudiced because the First Information Report lodged by him would have failed of its purpose, wholly or in part. Moreover, when the interest of the informant in prompt and effective action being taken on the First Information Report lodged by him is clearly recognised by the provisions contained in sub-sec. (2) of S.154, sub-sec. (2) of S.157 and subsec. (2)(ii) of Section 173, it must be presumed that the informant would equally be interested in seeing that the Magistrate takes cognizance of the offence and issues process, because that would be culmination of the First Information Report lodged by him. There can, therefore, be no doubt that when, on a

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consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of S. 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-sec. (2)(i) of S. 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report . It was urged before us on behalf of the respondents that if in such a case notice is required to be given to the informant, it might result in unnecessary delay on account of the difficulty of effecting service of the notice on the informant. But we do not think this can be regarded as a valid objection against the view we are taking, because in any case the action taken by the police on the First Information Report has to be communicated to the informant and a copy of the report has to be

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supplied to him under sub-section (2) (i) of S. 173 and if that be so, we do not see any reason why it should be difficult to serve notice of the consideration of the report on the informant. Moreover, in any event, the difficulty of service of notice on the informant cannot possibly provide any justification for depriving the informant of the opportunity of being heard at the time when the report is considered by the Magistrate.”

¶372

(Emphasis supplied)

¶373

The above judgments go to show that only on hearing the first informant, the Magistrate has to decide on taking cognizance and rejecting the ‘B’ summary report.

¶374

In Dr.Ravikumar’ s case (supra), the judgments of

¶375

the Supreme Court in Bhagwant Singh ’ s case and of this Court in Krishnaprakash’s case were not referred to. The

¶376

said two judgments show that the purpose of issuing notice to

¶377

the complainant is to give an opportunity to him against acceptance of the ‘B’ report.

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¶379

¶380

Further, in Dr.Ravikumar ’s case, the Magistrate

¶381

had proceeded to record the sworn statement of the complainant without passing any orders on ‘B’ summary report. At the time of issuing the process, ‘B’ summary report was rejected. In the case on hand, the order shows that the Magistrate on receiving the protest petition, heard the complainant and took cognizance and simultaneously rejected the ‘B’ summary report. Therefore, the said judgment is not applicable to the present case.

¶382

In Dr.Rajeshwari’s case (supra), the protest

¶383

petition had not contained the factual aspects of the case to form a complaint or the facts constituting the offence, it was only in the form of objections to the protest petition. Therefore, the order of taking cognizance was set aside. Under the circumstances, judgments in Dr.Ravikumar and

¶384

Dr.Rajeshwari’ s cases are not applicable to the facts of this case. The contention that the order of taking cognizance is bad in law on that ground is unsustainable.

¶385

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Re: Order of cognizance and issuing process:

¶388

The Magistrate examining the protest petition took cognizance for the offences punishable under Sections 120B, 153A, 153B, 384, 389, 420, 504, 506, 511 read with Section 34 IPC. However, on recording the sworn statement, the Magistrate issued summons to the petitioners to take up the trial for the offences punishable under Sections 120B, 384, 389, 504, 506, 511 read with Section 34 of IPC only, thereby the Magistrate dropped the proceedings for the offences under Sections 153A and 153B and 420 of IPC.

¶389

The contention of the petitioners is that, the allegations in the protest petition did not constitute any offence against accused Nos.3 to 7. Further, there was absolutely no material to take cognizance and issue process against them. It was further contended that even for accused Nos.1 and 2, the complaint was only to prevent them from pursuing sexual abuse case against the seer of the Mutt. Thus, they claimed that the impugned order of taking

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cognizance and issuing process is without application of mind

¶393

and abuse of process of the court.

¶394

It is the settled principle of law that taking cognizance is nothing but the Magistrate taking judicial notice of the offence. The Hon’ble Supreme Court in S.K.Sinha, Chief Enforcement Officer –vs- Videocon International Limited and Others – Appeal (Crl.)

¶395

175/2007 in that regard held as follows:

¶396

“12. The expression cognizance has not been defined in the Code. But word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means become aware of and when used with reference to a court or a judge, it connotes to take notice of judicially. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone. Taking cognizance does not involve any formal action of any kind. It occurs as soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance is taken prior to commencement of criminal proceedings. Taking cognizance is thus a

¶397

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¶398

¶399

sine qua non or condition precedent for holding a valid trial. Cognizance is taken of an offence and not an offender. Whether or not the Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application can be laid down as to when a Magistrate can be said to have taken cognizance. . . .”

¶400

(Emphasis supplied)

¶401

This Court in V.S.Joshi and Another –vs- N.G.Bhat Chitrigi & Another ILR 2006 KAR 735 regarding taking cognizance held as follows:

¶402

“9. The Magistrate need not specifically state in his order that he has taken cognizance of the offences. Taking of cognizance by the Magistrate can be inferred from the facts and other material on record. The very fact that the Court below has decided to record the sworn statements after perusing the complaint itself would mean that Magistrate has applied his mind and has taken cognizance of the offences at the initial stage itself. Hence, it can be safely said that the Magistrate has applied his mind and thereafter, recorded the sworn statements of the witnesses.

¶403

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¶404

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Thus, the subsequent observation of the Learned Magistrate at the time of passing the aforesaid order that the cognizance taken becomes redundant and shall have to ignored. Even otherwise, it may amount to taking cognizance or applying mind to the facts of the case for the second time, at the time of passing of impugned order and the same is not barred. Hence the same cannot be said to be illegal. Moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. Added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceeding to record sworn statements of the witnesses, that the cognizance is taken. It is not a mandate of law that the Magistrate should mention that he has taken cognizance of the offence, before recording sworn statement. In view of the same, I do not find any reason to interfere in the order passed by the Court below.”

¶406

(Emphasis supplied)

¶407

Even Section 190(1)(a) Cr.P.C. states that Magistrate

¶408

may take cognizance of any offence upon receiving a

¶409

CRL.P.NO.100591/2018 & connected matters

¶410

¶411

complaint of facts, which constitute such offence.

¶412

Therefore, it is clear that the order of taking cognizance does not involve any formal action, it involves only judicially taking notice of the offences alleged. If the order depicts that the Magistrate went through the complaint and took cognizance for an offence based on the allegations constituting the offence, there is sufficient compliance.

¶413

The learned Magistrate in paragraphs-1 to 5 of the order dated 29.1.2018 while taking cognizance refers to the ‘B’ final report filed by the Investigating Officer CID and the protest petition. He states that the protest petition in the first part involves the English translation of the first information report and later part involves several grounds and he refers to the prayers in the complaint. The Magistrate further refers to the arguments of the Counsel for the complainant, discusses the legal aspects of taking cognizance in case of ‘B’ report visà-vis protest petition. The learned Magistrate also refers to arraying accused Nos.4 to 7, who were not named in the

¶414

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¶415

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initial complaint and says that cognizance is taken only of the offence and not of the accused and issuance of the process is only after considering the material placed against the accused persons under Section 204 Cr.P.C.

¶417

It is true that the Magistrate did not notice the bar of Section 196(1)(a) and 196(1A) Cr.P.C. for taking cognizance for the offences under Sections 153A and 153B. But later, on recording the sworn statement of the complainant and on perusing the material placed by the complainant, dropped Sections 153A and 153B and 420 IPC. That goes to show that Magistrate decided that no case is made out for issuing process in respect of those offences. Therefore, the order taking cognizance for those offences lost its existence and does not survive for any further consideration.

¶418

Then the next question is whether the observation of the Magistrate that there is sufficient ground to proceed against all the accused persons is sustainable in law. Though innumerable judgments of this Court and the Hon’ble

¶419

CRL.P.NO.100591/2018 & connected matters

¶420

¶421

Supreme Court were cited by both sides in this regard, the ratio of all those judgments is that sufficient grounds to proceed against the accused persons does not mean sufficient grounds to place conviction and a mini trial is not expected at that stage.

¶422

So far as the accused, who were arrayed under Section 319 Cr.P.C., what shall be the degree of satisfaction was discussed in Hardeep Singh ’s case referred to supra. Question No.4 referred to for the Constitutional Bench in the said case was as follows:

¶423

“Question (iv) – What is the degree of satisfaction required for invoking the power under Section 319 Cr.P.C.?”

¶424

In para-106 of the said judgment ultimately it was

¶425

held as follows:

¶426

“106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger

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CRL.P.NO.100591/2018 & connected matters

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evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 CrPC. In Section 319 CrPC the purpose of providing if “it appears from the evidence that any person not being the accused has committed any offence” is clear from the words “ for which such person could be tried together with the accused”. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319 CrPC to form any opinion as to the guilt of the accused.

¶430

(emphasis supplied)

¶431

So far as accused Nos.1 to 3 in the complaint itself,

¶432

it was alleged that they were disgruntled due to dropping of accused Nos.1 and 2 from the committees of the Mutt and Ramakatha programme and in the matter of seeking accounts from accused No.3 of some other connected institution. It was further alleged that accused No.1 threatened the

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complainant that the Swamiji should pay them rupees Three crores and step down from the seat of the Mutt and if they fail to pay Rs.3 crores, himself, accused No.2 with the help of accused No.3 and others implicate the seer in sexual abuse case and see to it that he will be dethroned. The same was reiterated in the sworn statement. The learned Magistrate in his detailed order of about seven pages refers to the sworn statement of the complainant Exs.C24 to C27, 44, 47, 55 and 55(a) and says that the said evidence satisfactorily shows prima facie case of issuance of summons.

¶436

Ex.C24 was the copy of incomplete draft complaint

¶437

allegedly recovered from the electronic gadget at the instance of accused Nos.1 and 2. Exs.C25 to 27 were the mahazars regarding seizure of iPad and iPhone (electronic gadgets) from the custody of accused No.1. Ex.C28 was the complaint copy filed by one Dr.Gajanana Sharma alleging accused Nos.1 and 2 made the similar threatening, extorting phone calls. Exs.C44 and C47 were the statements of witnesses Mahesh

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Bhat s/o Krishna Bhat of Matthihalli and Manjunath Bhat s/o Gajanana Bhat of Suvarnagadde to the effect that accused No.1 demanded that they should tell the Swamiji to pay that money otherwise to face scandalizing sexual abuse litigations.

¶441

Ex.C53 was the opinion of accused No.7 the Astrologer furnished allegedly at the instance of accused No.3 to accused Nos.1 and 2 fixing the auspicious day and time for filing the complaint. It was said that accused No.3 soliciting such opinion was part of the conspiracy with accused Nos.1 and 2. Under these circumstances, the order issuing summons against accused Nos.1 to 3 is based on appreciation of the material placed before the Magistrate to proceed against them.

¶442

However, against accused Nos.4 to 7, there were no direct allegation of extortion and only conspiracy was alleged. Accused Nos.3 to 5 are the brothers of accused No.1. The allegation against accused No.4 an Advocate is that, accused

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CRL.P.NO.100591/2018 & connected matters

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Nos.1 and 2 sent the draft complaint copy to him for scrutiny/vetting and he responded to that. So far as accused No.5, there was general allegation of conspiracy. So far as accused No.7 as already pointed out, the allegation is that he gave the opinion regarding auspicious day and time on the request of accused No.3.

¶446

Except aforesaid bald allegations against accused Nos.4, 5 and 7, there were no allegations in the degree required under Section 319 Cr.P.C. as laid down in Hardeep’s Singh’s case referred to supra to proceed against them.

¶447

So far as accused No.6, it was alleged that when the Investigating Officer of Honnavar Police Station was taking accused Nos.1 and 2 under arrest from Bengaluru to Honnavar for production before the court, accused No.7 threatened him to release them forthwith and not to produce them. The other allegation is that, accused Nos.1 and 2 met him several times in his chamber, therefore, he was also part

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CRL.P.NO.100591/2018 & connected matters

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of conspiracy. There are no allegations of attempt of extortion against him. At the most, the allegation against accused No.6 may constitute the offence of obstructing a public servant in discharging his official duties. Such complaint was to be filed by the concerned Investigating Officer.

¶451

So far as the contention that cognizance could not have been taken against accused No.7 without sanction in view of Section 197 Cr.P.C., such sanction is required only with regard to an act done in discharge of official duty of public servant. The alleged act of threatening the Circle Police Inspector to release accused Nos.1 and 2 cannot be called as an act done in discharge of duty. Therefore, the said contention deserves no merit.

¶452

Section 319 Cr.P.C. contemplates a situation of possibility of trial of the supplemental accused with the original accused together in the same trial . The allegations of accused No.7 obstructing or intimidating a public servant in discharging his official duty may constitute a different

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CRL.P.NO.100591/2018 & connected matters

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offence and that cannot be tried in a trial against accused

¶456

Nos.1 to 3 for the offence of attempt of extortion, etc.

¶457

Accused Nos.4 and 5 seemingly have been

¶458

implicated in the case having regard to their relationship with accused Nos.1 to 3. Accused Nos.4 and 7 are implicated in the case on the ground that they rendered professional advice to accused Nos.1 and 2 and accused No.6 is implicated on the ground that he was trying to help accused Nos.1 and 2 when they were arrested.

¶459

Under these circumstances, there was no sufficient material in terms of Section 319 Cr.P.C. as held in Hardeep Singh’s case (supra) to proceed against accused Nos.4 to 7 and proceeding against them with the existing material amounts to abuse of the process of the court.

¶460

Under the circumstances, at this stage, the

¶461

proceedings against accused Nos.4 to 7 in C.C.No.49/2018 on the file of J.M.F.C., Honnavara, Uttara Kannada District, are

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liable to be quashed. However, if during the course of trial, any evidence surfaces against them as required under Section 319 Cr.P.C., it is open to the Trial Court to summon them. Similarly accused Nos.1 to 3 at appropriate stage can seek their discharge, if grounds are available.

¶465

Therefore, Criminal Petition Nos.100591/2018 and 100592/2018 are hereby dismissed.

¶466

Criminal Petition Nos.100491/2018, 100503/2018, 100590/2018 and 100688/2018 are allowed. The

¶467

proceedings against accused Nos.4 to 7 in C.C.No.49/2018 on the file of Principal J.M.F.C., Honnavara, are hereby quashed.

¶468

Sd/JUDGE

¶469

KNM/-

Mr. Chamu Krishna Shastry v. State by Honnavara Police Station

Case brief

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Mr. Chamu Krishna Shastry v. State by Honnavara Police Station

Case brief

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What did the court decide?

What the court decided

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