Disposed

Smt. Subhadra v. Sri N Prasad S/O. Late Chennaveera Raju

Karnataka HC30 May 2023CRL.RP/100003/2022

Case brief

AI extract

What is this about?

The High Court dismissed revision petitions challenging a lower court order that issued process against accused. The bench distinguished prior precedents treating affidavit requirements for cognizable cases, holding the trial court erred in dismissing a private complaint regarding forging signatures in a non-cognizable offence file. The order directing issuance of process was set aside, with the t

What did the court decide?

The order directing the Magistrate to issue process against accused Nos. 1 to 8 was set aside. The trial court is directed to proceed with the case on merits. The revision petitions are dismissed.

Smt. Subhadra Vs Sri N Prasad S/O. Late… — Civil Procedure and Limitation | Karnataka HC (2023)

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- 1 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 30^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ANIL B KATTI

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CRIMINAL REVISION PETITION NO. 100003 OF 2022 C/W CRIMINAL REVISION PETITION NO. 100302 OF 2021

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IN CRL.RP NO: 100003 OF 2022

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BETWEEN:

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1 . SMT. SUBHADRA AGED ABOUT 45 YEARS, OCC: HEAD MISTRESS OF SRI. CHAITANYA P.U. COLLEGE AND SENIOR GIRLS RESIDENTIAL CAMPUS, OPP. WATER BOOSTER, MOKA ROAD, GANDHINAGAR, BALLARI-583101.

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Digitally signed by J MAMATHA J MAMATHA Date: 2023.05.28 02:32:15 +0530

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2 . SRI. VEERABHADRAPPA AGED ABOUT 59 YEARS, OCC: WATCHMAN OF SRI. CHAITANYA P.U. COLLEGE AND SENIOR GIRLS RESIDENTIAL CAMPUS, OPP. WATER BOOSTER, MOKA ROAD, GANDHINAGAR, BALLARI-583101. …PETITIONERS

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(BY SHRI SRINAND A. PACHHAPURE & MRS.PALLAVI S. PACHHAPURE, ADVOCATES)

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AND:

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1 . SRI N. PRASAD S/O. LATE CHENNAVEERA RAJU AGED ABOUT 53 YEARS, R/O. AMARESHWARA CAMP,

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2 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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TAL. MANVI, DIST. RAICHUR-584101. …RESPONDENT

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(BY SHRI RAJASHEKHAR R. GUNJALLI, ADV.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS IN P.C.NO.102/2011 ON THE FILE OF COURT OF PRL CIVIL JUDGE AND JMFC BALLARI AND TO SET ASIDE THE ORDER DATED 16.10.2021 PASSED BY THE COURT OF II ADDL DISTRICT AND SESSIONS JUDGE, BALLARI IN CRL.R.P. NO.463/2018 MARKED AT ANNEXURE-A AND CONFIRM THE ORDER DATED 02.06.2018 PASSED BY THE COURT OF PRL CIVIL JUDGE AND JMFC BALLARI IN PC NO.102/2011 MARKED AT ANNEXURE-D AND ETC.,

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IN CRL.RP NO: 100302 OF 2021

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BETWEEN:

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SRI. RADHA KRISHNA AGED ABOUT 60 YEARS, OCC: DIRECTOR OF SRI. CHAITANYA P.U. COLLEGE AND SENIOR GIRLS RESIDENTIAL CAMPUS, OPP. WATER BOOSTER, MOKA ROAD, GANDHINAGAR, BALLARI-583101. …PETITIONER

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(BY SHRI SRINAND A. PACHHAPURE & SHRI RAJENDRA R. PATIL, ADVOCATES)

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AND:

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SRI. N. PRASAD S/O LATE CHENNAVEERA RAJU AGED ABOUT 53 YEARS R/O. AMARESHWARA CAMP, TAL: MANVI, DIST: RAICHUR-584123. …RESPONDENT

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(BY SHRI RAJASHEKHAR R. GUNJALLI, ADV.)

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3 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS IN P.C. NO.102/2011 ON THE FILE OF COURT OF PRINCIPAL CIVIL JUDGE AND JMFC, BALLARI AND SET ASIDE THE ORDER DATED 16.10.2021 PASSED BY COURT OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE, BALLARI IN CRL.R.P. NO.463/2018 MARKED AT ANNEXURE-A AND CONFIRM THE ORDER DATED 02.06.2018 PASSED BY THE COURT OF PRINCIPAL CIVIL JUDGE AND JMFC, BALLARI IN P.C. NO.102/2011 MARKED AT ANNEXURE-D FOR THE OFFENCE PUNISHABLE U/S 120B, 465, 500, 506, 511 AND 114 R/W 149 OF IPC.

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THESE REVISION PETITIONS COMING ON FOR ADMISSION AND THE SAME HAVING BEEN HEARD AND RESERVED FOR ORDER ON 15.03.2023, THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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Revision petitioners/accused Nos.3 and 5 have filed Criminal Revision Petition No.100003/2022 and revision petitioner/accused No.1 has filed Criminal Revision Petition No.100302/2021 challenging the order of II Addl. District and Sessions Judge, Ballari, in Crl.R.P.No.463/2018 dated 16.10.2021.

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These two revision petitions are filed challenging the order of the first Appellate Court in Crl.R.P.No.463/2018 and hence, they are taken up together for disposal by this common order.

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4 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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Parties to the petitions are referred with their ranks as assigned in the trial Court for the sake of convenience.

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The factual matrix leading to the case of complainant can be stated in nutshell to the effect that private complaint was filed by N. Prasad s/o Channaveera Raju against accused Nos.1 to 8 named in the complaint under Section 200 Cr.P.C. for the offences punishable under Sections 120-B, 465, 506, 511 and 114 IPC read with Section 149 of IPC. The Prl. Civil Judge and JMFC, Ballari, vide order dated 02.06.2018 dismissed the complaint in exercise of power under Section 203 of Cr.P.C.

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The complainant being aggrieved by the dismissal of complaint preferred Criminal Revision Petition on the file of II Addl. District and Sessions Judge, Ballari, in Crl.R.P.No.463/2018. The revisional Court by its order dated 16.10.2021 allowed the revision petition and set aside the order of the trial Court dated 02.06.2018 and further directed the learned Magistrate to issue process against accused Nos.1 to 8 and proceed with the case on merits in accordance with law.

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5 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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The revision petitioners in both the cases have challenged the said order contending that there are no any specific allegations against the revision petitioners/accused Nos.1, 3 and 5. The complaint allegations are directed against accused Nos.6 to 8. There is no question of accused Nos.3 to 5 forging the signature of N. Lakshmi Prasanna in the register maintained by the hostel authorities by falsely recording the timings of exit and entry into the hostel. The revision petitioners have been falsely involved in this case who are not directly connected with the day to day affairs of the hostel. Therefore, prayed for allowing both the revision petitions and to set aside the order of revisional Court and to restore the order of trial Court in dismissing the complaint against revision petitioners.

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In response to the notice, respondent in both the

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cases appeared through counsel.

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Heard the arguments of both sides.

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It is alleged in the complaint that daughter of

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complainant Kum. N. Lakshmi Prasanna is studying in Chaitanya P U College, Ballari, by staying in the hostel

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maintained by the said institution. Accused Nos.6 to 8 with an oblique motive to damage the image of complainant canvassed that daughter of complainant is going outside the hostel with someone. On 22.08.2010, the daughter of complainant, Kum. N Lakshmi Prasanna has never gone out of the hostel. However, in the register maintained by the hostel authorities false entry has been made that she went out of the hostel at 3.10 p.m. and returned at 4.20 p.m. The said entries are made at the behest of accused Nos.6 to 8 and accused Nos.3 to 5 forged the signature of Kum. N. Lakshmi Prasanna. On questioning the college authorities regarding the entries found in the movement register, daughter of complainant was advised to admit her signature in the movement register. Therefore, complainant has filed complaint before Gandhinagar police station, Ballari, and the police authorities without conducting any enquiry issued endorsement stating that there is no sufficient material to register the case. Therefore, private complaint was filed under Section 200 Cr.P.C. for the aforesaid offences.

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The trial Court after examining the complainant as PW-1 and one witness as PW-2 further marked document

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7 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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Ex.P.1 to Ex.P.11, dismissed the complaint by exercising powers under Section 203 of Cr.P.C.

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The said order of dismissal of complaint was challenged before the revisional Court on the file of the II Addl. District and Sessions Judge, Ballari, in Crl.R.P.No.463/2018. The revisional Court by order dated 16.10.2021 allowed the revision petition and set aside the order of trial Court. Further, directed the Magistrate to issue process against accused Nos.1 to 8 and to proceed with the case on merits in accordance with law.

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The trial Court dismissed the complaint on the following grounds:

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i) Daughter of complainant, Kum. N. Lakshmi Prasanna is not examined,

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ii) Ex.P.6, movement register was not seized by police,

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iii) Duly sworn affidavit of applicant along with documents was not filed in terms of judgment of Hon’ble Apex Court in MRS. PRIYANKA

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8 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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SRIVASTAVA AND ANOTHER VS. STATE OF U.P.

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AND OTHERS (AIR 2015 SC 1578) ,

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The revisional Court has set aside the order of trial Court holding that Ex.P.6 movement register copy is duly furnished by the police authorities and the college authorities have not responded to the order of trial Court on the application filed under Section 91 of Cr.P.C. Further, held that the principles laid down by the Hon’ble Apex Court in

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PRIYANKA SRIVASTAVA ’s case has no application to the facts of the present case, since the offences alleged against the accused are non-cognizable offences.

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The powers to investigate on the information to the police is covered under Chapter XII of Cr.P.C. In terms of Section 154 (1) of Cr.P.C. every information relating to the commission of a cognizable offence, if given orally to an officerin-charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may

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9 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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prescribe in this behalf. In terms of Section 154 (3) of Cr.P.C., any person aggrieved by a refusal on the part of an officer-incharge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer-incharge of the police station in relation to that offence.

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In terms of Section 156 (1) of Cr.P.C., any officerin-charge of a police station may, without the order of Magistrate, investigate any cognizable cases which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. In terms of Section 156 (3) of Cr.P.C., any Magistrate empowered under Section 190 may order such an investigation as above mentioned. The powers exercisable under Sections 154 and 156 of Cr.P.C. is with respect to cognizable offence.

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10 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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In the present case, Gandhi nagar police has given endorsement Ex.P.3 stating that there is no evidence to prove the allegations made in the complaint. It is thereafter private complaint was filed by the complainant under Section 200 Cr.P.C. for the offences punishable under Sections 120-B, 465, 506, 511 and 114 IPC read with Section 149 IPC. The aforesaid offences are non-cognizable offences. Therefore, it is Section 155 sub clauses (1) to (4) that are applicable.

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The trial Court has held that in terms of MRS. PRIYANKA SRIVASTAVA AND ANOTHER VS. STATE OF U.P. AND OTHERS (AIR 2015 SC 1578) , the complaint is not supported by affidavit duly sworn by the complainant seeking invocation of jurisdiction of Magistrate under Section 156 (3) of Cr.P.C. The said proposition of law has been reiterated in the judgment of this Court in TARUN VARMA VS. STATE OF KARNATAKA (2018 (1) KCCR 66) . The requirement of filing affidavit duly sworn by applicant arises only when the Magistrate invoke the powers vested under Section 156 (3) of Cr.P.C. to investigate the matter by the jurisdictional police of cognizable offence. In the second decision of this Court, FIR registered on the basis of reference made by the Court in terms

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11 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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of Section 156 (3) of Cr.P.C. came to be quashed for non-filing of duly sworn affidavit along with documents in a cognizable case.

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The co-ordinate bench of this Court in C.M.ALEEMULLAKHAN AND ANOTHER VS. THE STATE OF KARNATAKA THROUGH GANDHI GUNJ POLICE STATION, BIDAR AND ANOTHER ( ILR 2020 KAR 1321 ) by referring to PRIYANKA SRIVASTAVA ’s case referred above has observed and held that since there is no order for investigation under Section 156 (3) of Cr.P.C., question of non-filing of an affidavit along with the complaint would not nullify the effect of the complaint or making complaint redundant. It has been further held that filing of affidavit along with the complaint in a cognizable case would arise only when the Magistrate invoke the power under Section 156 (3) of Cr.P.C. to refer the complaint for investigation.

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In the present case also, the Magistrate has not exercised the power under Section 156 (3) of Cr.P.C. and on the other hand, proceeded to examine the complainant and his witness and on the basis of said material, dismissed the complaint in terms of Section 203 of Cr.P.C. mainly recording a

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finding that non-filing of affidavit is fatal to the case of complainant. It appears that the trial Court was under the impression that offences alleged in the complaint are cognizable offences. However, the perusal of complaint allegations and the offences alleged against accused are noncognizable offences and the case would squarely fall in terms of Section 155 sub clause (1) to (4). In terms of Section 155 (2) of Cr.P.C., no police officer shall investigate a non-cognizable case without the order of Magistrate having power to try such case or commit the case for trial. Therefore, the revisional Court was justified in recording finding at paragraph 11 of its order that the present case falls under Section 155 (2) of Cr.P.C. and the judgment of Hon’ble Apex Court in PRIYANKA SRIVASTAVA ’s case and the decision of coordinate bench of this Court in TARUN VARMA ’s case has no application to the facts of present case.

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Another ground on which the trial Court dismissed the complaint is that Ex.P.6 movement register was not seized by police. The records would go to show that complainant had filed two separate applications under Section 91 of Cr.P.C. dated 27.06.2011 and 18.12.2011 and sought direction to the

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13 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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college authorities and the ladies hostel of the college to produce the documents. The second application was directing the SHO, Gandhinagar police station, to produce copy of complaint with all documents produced by complainant. The said applications were allowed by the trial Court, but no documents were furnished by both the authorities. The trial Court admitted the certified copy issued by the Police Inspector, Gandhi nagar police station, Ex.P.6. There is lot of difference between a prima facie case and proof of offence alleged against accused. It is pertinent to note that on the complaint filed by complainant, police did not investigate the matter at all and given endorsement that there is no sufficient evidence produced by complainant. Therefore, the question of seizing movement register by the police does not arise. The trial Court inspite of its own order did not compel the college authority to produce the documents as called in the application filed under Section 91 of Cr.P.C. Therefore, all the above referred grounds on which the trial Court has dismissed the complaint cannot be legally sustained and the revisional Court was justified in remanding the matter to trial Court.

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14 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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The revisional Court has directed the trial Court to

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issue process against accused Nos.1 to 8. When once the private complaint filed under Section 200 Cr.P.C. is entertained by the trial Court, then the procedure contemplated under Chapter XV of the Cr.P.C. has to be followed. The power under Section 203 of Cr.P.C. can be exercised only if it is found that there is no sufficient ground for proceeding to dismiss the complaint or to exercise power under Section 204 of Cr.P.C. to issue process where cognizance of offence is taken. In the present case, the trial Court has only dismissed the complaint on the grounds referred above which are found to be not legally sustainable. Therefore, it is now upto the trial Court to take a decision on merits by proceeding with the complaint in accordance with law. Consequently, proceed to pass the following:

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ORDER

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Criminal Revision Petition No.100003/2022 filed by accused Nos.3 and 5 and Criminal Revision Petition No.100302/2021 filed by accused No.1 are hereby dismissed.

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15 - CRL.RP No. 100003/2022 C/w CRL.RP. No.100302/2021

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The order of revisional Court on the file of II Addl. District and Sessions Judge, Ballari, in Criminal Revision Petition No.463/2018 dated 16.10.2021 in so far as directing the learned Magistrate to issue process against accused Nos.1 to 8 is set aside.

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The trial Court is directed to proceed with the case on merits in accordance with law.

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The registry is directed to transmit the records with the copy of this order to trial Court.

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(Sd/-) JUDGE

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Jm/-

Smt. Subhadra v. Sri N Prasad S/O. Late Chennaveera Raju

Case brief

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Smt. Subhadra v. Sri N Prasad S/O. Late Chennaveera Raju

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