Allowed

Sri.Manjeshwara v. Sri.Dharme Gowda

Karnataka HC7 Jan 2022WP/14238/2020

Case brief

AI extract

What is this about?

This court quashed criminal proceedings against three police petitioners for allegedly torturing a religious convert. The court held that the delay was too long without credible explanation, the petitioners needed judicial sanction for alleged excesses connected to duty, and the complaint was frivolous.

What did the court decide?

Entire proceedings in C.C.No.71/2019 against all accused quasshed.

Sri.Manjeshwara Vs Sri.Dharme Gowda — Quashing and FIR | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 07^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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WRIT PETITION NO.14238 OF 2020(GM-RES)

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BETWEEN:

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Sri Manjeshwara S/o Kalappa, Aged about 62 years, R/at Kanchinagar, Honnavalli Post, Sringeri Taluk-577139.

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Sri Ashok, S/o Sangappa, Aged about 45 years, R/at Haneef Building, Kagganagadde Road, Balehonnur, N.R.Pura-577112.

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Sri H.M.Nagraj, S/o Melagiriappa, Aged about 40 years, R/at Near Annapoorna Gas Agency Shringeri Road, Balehonnuru, N.R.Pura-577112.

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…Petitioners

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(By Sri Suyog Herele, Advocate)

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AND:

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Sri Dharme Gowda, Aged about 50 years,

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Father’s name not known to the petitioners R/at Chikkamagaluru District And Taluk, Aavathi Hobli, Kanathi Post. …Respondent

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(By Sri Mohanraj Doraiswamy, Advocate)

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This Writ Petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. praying to quash the entire proceedings in C.C.No.71/2019 on the file of Senior Civil Judge and JMFC, Narasimharajapura, Chikkamagaluru, for the alleged offences punishable under Section 298 and 324 of IPC including the complaint in PCR No.139/2018 filed by the respondent (produced at Annexure-A and B) so far as the petitioners are concerned.

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This Writ Petition coming on for orders this day, the Court made the following:

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ORDER

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The petitioners, being accused no. 7, 8 and 9

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have invoked jurisdiction of this court under Articles 226 and 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure for quashing the proceedings against them in C.C.71/2019 on the file of Senior Civil

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Judge and JMFC, Narasimharajapura. The events that have led to this petition being filed are as follows : -

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The first petitioner is a Sub Inspector of

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Police and the petitioners 2 and 3 are police constables. The respondent is the complainant. The incident that the respondent has alleged to

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have taken place is that, on 6.10.2017, he and his friend, Jason, being Christians, belonging to the order Jehovah’s Witnesses, went to the shop of the first accused, namely Smt. Sudha Pai for taking photocopy of a document. In the shop, the respondent picked up conversation with Sudha Pai on the subject of ‘family’ and in that course, gave her a tract entitled, “What is the Key to Happy Family life?”. Smt. Sudha Pai suspected that the respondent and his friend were making attempt to convert her to Christianity and therefore called the police. The respondent and his friend were taken

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to police station, Balehonnur, where it is alleged that they were subjected to physical torture by the petitioners, and in this connection the respondent approached the court of JMFC on 19.9.2018 with a complaint under section 200 Cr.P.C. The learned Magistrate, by his order dated 14.2.2019, took cognizance of the offences punishable under sections 298 and 324 read with section 34 IPC and issued process against the petitioners. Thus the petitioners are before this court.

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I have heard the arguments of Sri Suyog

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Herele, learned counsel for the petitioners and Sri Mohan Doraiswamy for the respondent.

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Sri Suyog Herele based his arguments on two points, namely, delay in lodging complaint and want of sanction as required under section 197 of Cr.P.C and section 170 of the Karnataka Police Act. On the first point, he submitted that, according to the contents of the complaint, it was

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on 6.10.2017 that the petitioners resorted to physically torturing the respondent in the police station. He submitted that while those allegations are totally false, till September of 2018, the respondent did not think of taking any action against the petitioners. If really any such incident as has been complained of by the respondent had taken place, he would not have kept quite. The inordinate delay itself is sufficient to doubt the truth in the contents of the complaint.

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4.1. Second point of argument is that since

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the petitioners are all police personnel, and the allegations against them indicate an act being done in the course of discharging their official duties, they cannot be prosecuted without sanction as envisaged in section 170 of the Karnataka Police Act and section 197 of the Code of Criminal Procedure. In this case, the respondent has not taken sanction and for this reason, the complaint

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against the petitioners is vitiated. Therefore entire proceedings against the petitioners are to be quashed.

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Sri Mohanraj Doraiswamy, learned counsel

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for the respondent, argued that the respondent visited the shop of Mrs. Sudha Pai to get a photo copy of a document, and that he never indulged in converting Sudha Pai into Christianity. He elaborated his argument in such way that, even otherwise, if the respondent wanted to propagate his religion, it has protection under Article 25 of the Constitution of India. The petitioners, being the members of the police force, should have afforded protection to the respondent in order to protect the fundamental right of the respondent, rather the petitioners sided with Mrs. Sudha Pai and subjected the respondent to brutal torture inside the police station, and certainly, this physical torture on the respondent does not fall

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within the ambit of their official function. They cannot take shelter under section 197 of Cr.P.C and section 170 of the Karnataka Police Act, and obtaining of sanction is not at all necessary.

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5.1. Regarding delay, the learned counsel submitted that when the respondent was produced before the Magistrate in connection with FIR lodged by Smt. Sudha Pai against him, he complained to the Magistrate of physical assault on him by the police, and that the Magistrate issued a notice to the petitioners. This notice to the petitioners itself is sufficient proof for police atrocities. The respondent also made a complaint to the Human Rights Commission. No action was taken, and as a last resort, he was constrained to approach the court of Magistrate with a complaint. Delay is explained. He submitted that delay cannot be a factor for dislodging a proceeding in connection with criminal action. Referring to the

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order of taking cognizance, the learned counsel submitted that only after recording the sworn statements of the complainant and witnesses and after finding sufficient materials being present to proceed further, the Magistrate ordered for issuance of process to the petitioners. There is no infirmity in the matter of taking cognizance. Therefore there are no grounds to interfere under section 482 Cr.P.C.

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I have considered the points of arguments

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and perused the statement of objections filed by the respondent.

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Firstly delay in approaching the court assumes importance. It may be stated that the aspect of delay does not always matter, but inordinate delay certainly matters. If delay is explained, whether to accept it or not falls within the sphere of appreciation of evidence by the trial court. When there is inordinate delay, power

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under section 482 Cr.P.C. can be exercised. Even if explanation is given, it must prima facie appear to be believable. Here in the present case, the respondent states about his person having been subjected to physical assault by the police on 6.10.2017. Of course, the respondent has produced a show cause notice dated 7.10.2017 issued by the Magistrate to the Sub-Inspector of Police. The other document produced is a copy of the complaint filed by the respondent before the Karnataka Human Rights Commission. The respondent seeks to explain the delay by referring to these two documents. In para 4 of his complaint, it is stated as below:

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“4. Despite the best efforts of the complainant and his friend to register an FIR against the accused, the Balehonnur Police neither acknowledged nor accepted the complaint dated October 6, 2017. Hence the complainant and his friend

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filed a complaint with the Karnataka State Human Rights Commission dated 28.08.2018. Due to the deliberate and consistent inaction by the police, the complainant is constrained to approach this Hon’ble Court in the interest of equity and justice.”

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From the extracted para, it becomes clear

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that till 28.8.2018, the respondent did not find it expedient to approach the Human Rights Commission. Of course, the Magistrate might have issued a show cause notice on 7.10.2017, but there is no material indicating whether at all the respondent did take any action after 07.10.2017 till he approached the Human Rights Commission on 28.08.2018. The respondent might have stated that he made his best efforts to lodge an FIR at Balehonnur Police Station, but it is not supported by any document. It is not understandable as to why the respondent did not approach the

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Superintendent of Police when the local police did not entertain him. Therefore merely for the reason that the respondent approached Human Rights Commission, it cannot be said that delay is explained. Learned counsel for respondent has placed reliance on a judgment of the Supreme Court in the case of ARUN VYAS AND ANOTHER VS. ANITA VYAS [(1999) 4 SCC 690] in support of his argument that delay does not matter always. This judgment is not applicable, because what is discussed therein is extension of limitation period for taking cognizance of an offence applying Section 473 of Cr.P.C., inspite bar contained in Sec. 468 of Cr.P.C. Applicability of Section 468 or 473 of Cr.P.C., has not emerged for discussion in the case, what is under discussion is inordinate delay which reflects on the conduct of the respondent to approach the Magistrate under Section 200 of Cr.P.C. Inordinate delay in a circumstance like this certainly matters. The

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explanation given does not appear to be prima facie believable.

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Then regarding sanction, learned counsel

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for the respondent has placed reliance on some decisions of this court in the cases of G. Govinda Raju Vs. Babu Poojary (Crl.RP.No.291/1972); Gyanoba Vs. Nanayya (Crl.RP.No.452/1974); D.H.Chikkadoddaiah Vs. Nataraj [1973(2) Mys.LJ 141] and Hanumanthappa Vs. S.B. Mastamaradi [(2003) CrlLJ 4359 . In all these decisions, beatings and physical violence resorted to by the police during interrogation of an accused is held to be out of purview of the duties of police officers and hence they cannot take protection under section 170 of the Karnataka Police Act. In a recent decision by the Co-ordinate Bench of this court in the case of S. Shivakumar and others Vs. State of Karnataka (Criminal Petition No.996/2021), same view has been taken. But

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what kind of an act amounts to an official duty is made clear by the Supreme Court in the case of D.Devaraja Vs. Owais Sabeer Hussain [(2020) 7 SCC 695]. It is held:

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“ 67 . Every offence committed by a police officer does not attract Section 197 of the Code of Criminal Procedure read with Section 170 of the Karnataka Police Act. The protection given under Section 197 of the Criminal Procedure Code read with Section 170 of the Karnataka Police Act has its limitations. The protection is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and official duty is not merely a cloak for the objectionable act. An offence committed entirely outside the scope of the duty of the police officer, would certainly not require sanction. To cite an example, a police man assaulting a domestic help or

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indulging in domestic violence would certainly not be entitled to protection. However if an act is connected to the discharge of official duty of investigation of a recorded criminal case, the act is certainly under colour of duty, no matter how illegal the act may be.”

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Then in the same judgment, it is also held as below.

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”68. If in doing an official duty a policeman has acted in excess of duty, but there is a reasonable connection between the act and the performance of the official duty, the fact that the act alleged is in excess of duty will not be ground enough to deprive the policeman of the protection of government sanction for initiation of criminal action against him.

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69. The language and tenor of Section 197 of the Code of Criminal

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Procedure and Section 170 of the Karnataka Police Act makes it absolutely clear that sanction is required not only for acts done in discharge of official duty, it is also required for an act purported to be done in discharge of official duty and/or act done under colour of or in excess of such duty or authority.

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70. To decide whether sanction is necessary, the test is whether the act is totally unconnected with official duty or whether there is a reasonable connection with the official duty. In the case of an act of a policeman or any other public servant unconnected with the official duty there can be no question of sanction. However, if the act alleged against a policeman is reasonably connected with discharge of his official duty, it does not matter if the policeman has exceeded the scope of his powers and/or acted beyond the four corners of law.”

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(emphasis supplied)

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Now, the facts of this case disclose that

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the first accused in the complaint, i.e., Smt. Sudha S.Pai, made a report to Balehonnur Police on 6.10.2017 against the respondent alleging that the latter spoke insultingly of Hindu religion and practices and induced her to convert to Christianity, and in this connection, the police registered an FIR in Crime No.141/2017 for the offence under section 295A IPC, took the respondent to their custody and produced him before the Magistrate on 7.10.2017. It was during this interregnum that the respondent is said to have been beaten by the police. That means the excesses complained of has got reasonable nexus with the official duty of the petitioners.

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If further explanation can be given, it may be stated that whenever complaint under Section 200 of Cr.P.C., is filed and the cognizance is sought to be taken based on materials produced

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along with the complaint and the sworn statement of the complainant and the witnesses, it is necessary that the order of sanction from the competent authority must be produced. For, the complainant at the initial stage of filing complaint should be having evidence to proceed against a public servant and therefore he must place that evidence before the competent authority and apply for sanction, which, if granted, should be produced before the Court to enable it to take cognizance. But if reference to police under Section 156(3) of Cr.P.C., is sought, there is no necessity to obtain sanction at the initial stage, the reason being that the complainant, makes certain allegations against the accused and seeks investigation. Only during investigation, evidence will be collected and sanction can be applied for based on that evidence. It is enough if sanction order is produced along with charge sheet. The case on hand falls under first category and therefore

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production of sanction was necessary at the initial stage. Here the respondent did not obtain sanction before initiating action. Hence the complaint against the petitioners cannot be sustained.

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The respondent has very much laid emphasis on right to propagate his religion, and he tries to take shelter under Article 25 of the Constitution of India. His stand is that he did not try to convert the first accused, Smt. Sudha S. Pai, to Christianity, but he does not deny propagation. On the other hand, the contents of FIR in Crime No. 141/2017 indicate that the respondent went to the house of Smt. Sudha S Pai, ridiculed Hindu Gods and induced her to convert to Christianity. In this view, it may be stated that if the complaint lodged by the respondent against the petitioners and other accused is to counter blast FIR No.141/2017, it is nothing but a frivolous

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complaint. Inordinate delay, as discussed above, is a pointer to ulterior intention behind the complaint. Article 25 of the Constitution not only gives right to practise or propagate any religion of one’s faith, but also gives right to protect one’s religion when there is onslaught on one’s religion by people of other faith or other religion. Article 25 of the Constitution cannot be understood as affording protection to those who indulge in conversion under the camouflage of propagation of his or her religion. One who speaks about right must always remember the duty, the duty here is to respect the other religion, its tradition,

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practices and rites.

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Therefore from the above discussion, I

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come to conclusion that the proceedings against the petitioners as also against other accused who have not approached this court can be quashed. In a given set of circumstances, if it appears that

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the whole criminal action results in abuse of process of court, jurisdiction under Section 482 Cr.P.C. can be exercised to quash the proceedings not only with respect to those who have approached the court under section 482 Cr.P.C., but also other accused who have not approached. In this view, I find a case to quash the entire proceedings in C.C.No.71/2019 on the file of Senior Civil Judge and JMFC, Narasimharajapura, against all the accused and ordered accordingly.

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Sd/JUDGE

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ckl/sd-

Sri.Manjeshwara v. Sri.Dharme Gowda

Case brief

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Sri.Manjeshwara v. Sri.Dharme Gowda

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