Allowed

Sri.Bahuddin v. the State of Karnataka

Karnataka HC26 Sept 2023CRL.RP/100161/2016

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court, Dharwad Bench, examined the validity of a special court's order taking cognizance against a petitioner accused of offences under the IPC and SC/ST (POA) Act. The court noted a favorable 'B' report from the police showing the petitioner was absent during the alleged incident and that no sanction for prosecution existed. Citing Supreme Court direct

What did the court decide?

The impugned order dated 01.04.2016 taking cognizance against the accused is set aside and the complaint is dismissed.

Sri.Bahuddin Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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CRL.R.P.NO.100161/2016

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 26^TH DAY OF SEPTEMBER, 2023 BEFORE

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THE HON’BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL REVISION PETITION NO.100161 OF 2016

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BETWEEN:

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SRI. BAHUDDIN, S/O. RUKMUDDIN GADDEKAR, AGED: 34 YEARS, OCC: POLICE INSPECTOR, CCB BELAGAVI, O/O: THE COMMISSIONER, BELAGAVI CITY COMMISSIONRATE, BELAGAVI.

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...PETITIONER

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(BY SRI. SACHCHIDANAND B.PATIL, ADV. FOR SRI. MRUTYUNJAY TATA BANGI, ADVOCATE)

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AND:

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CHANDRASHEKAR LAXMAN KATTIMANI

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Date: 2023.09.27 14:54:57 +0530

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THE STATE OF KARNATAKA, REP BY THE DEPUTY SUPERINTENDENT OF POLICE/ INVESTIGATING OFFICER, JAMKHANDI SUB-DIVISION, JAMKHANDI, THROUGH ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD.

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SRI. PRABHAKAR S/O HANAMANTH GUGGARI, AGED ABOUT 30 YEARS, OCC: PRESS REPORTER, R/AT: HANDIGUND, TQ: RAIBAG, DIST: BELAGAVI.

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…RESPONDENTS

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(BY SMT. GIRIJA S.HIREMATH, HCGP FOR R1; SRI. RAGHAVENDRA A. PUROHIT, ADV. FOR R2)

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CRL.R.P.NO.100161/2016

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W. 401 OF CR.P.C., PRAYING THIS COURT TO, CALL FOR THE RECORDS AND SET ASIDE THE ORDER TAKING COGNIZANCE AGAINST THE PETITIONER UNDER SECTION 323, 504 AND 506 OF INDIAN PENAL CODE AND SECTION 3(1) (viii) (x) OF S.C AND S.T. (POA) ACT BEFORE THE II ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOTE IN SPL.CASE NO.25 OF 2016 DATED 01/04/2016.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED ON 31.08.2023, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition filed u/sec.397 r/w 401 Cr.P.C. is by accused challenging order dated 01.04.2016 passed by the trial/special Court taking cognizance against him for the offences punishable under Sections 323, 504 and 506 IPC r/w Sec.3(1)(viii)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘SC and ST (POA) Act’).

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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CRL.R.P.NO.100161/2016

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In support of the petition, petitioner has contended

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that the proceedings initiated against the petitioner amounts to abuse of process of law and as such taking cognizance against the petitioner is perverse, capricious and liable to be set-aside. There is no prima facie material to proceed against the accused. In fact the complaint filed against accused was referred to Dy.S.P. for investigation and after thorough investigation ‘B’ report was filed. Instead of accepting the ‘B’’ report, the Special Court based on the oral evidence led by the complainant has taken cognizance.

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3.1 The investigation conducted the Dy.S.P. reveal that accused was on leave for three days i.e. on the day when the investigation was conducted against the complainant in respect of the complainant transporting liquor and on the next two days and therefore, complainant has made false allegations against the accused stating that he was present outside the station when complainant was arrested and brought to the station and abused him and others referring to their caste. The special Court has not assigned any reasons

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CRL.R.P.NO.100161/2016

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for not accepting the ‘B’ report. There is no order issuing sanction to prosecute the accused and on this ground also the impugned order is liable to be set-aside and prays to allow the petition, set-aside the impugned order taking cognizance against the accused.

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After due service of notice, respondent

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No.2/complainant has appeared through counsel.

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Respondent No.1-State is represented by learned

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HCGP.

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Heard arguments and perused the records.

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Thus, petitioner who is arraigned as accused has

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challenged the impugned order dated 01.04.2016 by which

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the Special Court took cognizance against him for the offences punishable under Sections 323, 504 and 506 IPC r/w Sec.3(1)(viii)(x) of SC and ST (POA) Act, contending that when alleged incident took place, he was on leave and infact

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the Dy.S.P. to whom the private complaint filed by complainant was referred for investigation u/sec.156(3)

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CRL.R.P.NO.100161/2016

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Cr.P.C., after conducting detailed investigation has filed ‘B’

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report and without giving reasons and without passing any order on the ‘B’ report, the trial Court has proceeded to record the sworn statements of the complainant and witnesses and erred in taking cognizance.

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In support of his arguments, learned counsel for

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accused has relied upon the following decisions:

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i. Dr.Ravikumar V/s Mrs.K.M.C. Vasantha (Dr.Ravikumar)¹

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ii. Subramanian Swamy V/s Manmohan Singh (Subramanian Swamy)²

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iii. Gouri Shankar Prasad V/s State of Bihar (Gauri Shankar Prasad)³

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On the other hand, learned HCGP representing the

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State and learned counsel for the complainant have supported the impugned and order and sought for dismissal of the petition.

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1 ILR 2008 KAR 1725

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2 AIR SCW 2012 1249

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CRL.R.P.NO.100161/2016

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According to the complainant, he is running a

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weekly by name Chalagara (� � ��). He published a report

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regarding cheating and misappropriation by an institution by name Star Value in imparting computer education to students at Mahalingapura under the government scheme in his weekly on 26.01.2009, 13.04.2009, 25.05.2009 and 22.06.2009. The persons who were running the said institution colluding with the accused gave threat to the life of complainant and this fact was also published by him in the weekly.

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In this background, on 19.06.2009, a false complaint was lodged in Crime No.78/2009 against the complainant and sub-editor Nagaraj Dundappa Patil alleging illegal transportation of liquor and at 4.30 a.m. complainant and Nagaraj were arrested and brought to the police station. Accused was standing outside the police station and abused him referring to his caste and assaulted on his cheek, kicked him on his chest with his leg. At that time, apart from Nagaraj, one Mahalinga Hanumant Guggari and Hanumanth

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3 2000(3) SCR 159

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CRL.R.P.NO.100161/2016

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Bharat Ghantichor were present and the incident took place in the public place.

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It is alleged by the complainant that on 26.06.2009 he gave a representation to the Chairman, State Human Rights Commission. In turn, the State Human Rights Commission has registered it in HRC No.3225/2009 and directed the Inspector General of Police, North Division, Belagavi to investigate and report, without any result. On 29.06.2009, complainant has also given a complaint to the S.P., Bagalkot, but no action is taken by him against the complainant and therefore, he has filed the private complaint u/sec.200 Cr.P.C. before the Special Court i.e. Principal District and Sessions Judge, Bagalkot.

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The Special Court has referred the complaint to the Dy.S.P., Jamakhandi to investigate and report. As noted earlier, after conducting investigation, the Dy.S.P. has submitted ‘B’ report stating that the allegations made are false.

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CRL.R.P.NO.100161/2016

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After submission of ‘B’ report, the Special Court has recorded sworn statement of complainant and his witnesses and took cognizance against which the present petition is filed u/sec.397 Cr.P.C.

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Before going into the merits of the case, it is necessary to refer to the decision of the Hon’ble Supreme Court in Priyanka Srivastava and another V/s State of U.P. and others (Priyanka Srivastava)⁴ . Observing that in the normal course a person would approach the jurisdictional police with the complaint and on failure of the concerned police to register the case and take action, it would be natural for such person to approach the higher police officer and seek a direction to the concerned police to register the case and proceed with the matter. Only on the failure of both i.e. concerned police and the higher police officer, as a last resort, he would approach the jurisdictional Magistrate with the private complaint.

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4 (2015)6 SCC 287

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CRL.R.P.NO.100161/2016

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In this background, the Hon’ble Supreme Court

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held that when a private complaint is filed u/sec.200 Cr.P.C. it shall be supported by an affidavit stating that the complainant had approached the jurisdictional police and on their failure has approached the Superintendent of Police and on the failure of both, he is filing the private complaint. The Hon’ble Supreme Court further directed that such private complaint and affidavit shall be accompanied by copies of the complaint given to the concerned police and Superintendent of Police. In other words, it goes without saying that before filing the private complaint, the complainant is expected to approach the jurisdictional police and on their failure, the Superintendent of Police. It is not sufficient for the complainant to plead that he had approached them, but also to produce proof of such filing of complaint before them and reiterate the said fact by way of affidavit.

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The Hon’ble Supreme Court observed that this is necessary to prevent abuse of process of the Court and filing of affidavit would bind the complainant against making false

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CRL.R.P.NO.100161/2016

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accusation against the accused, especially the public servants when they are acting in discharge of their official duty and hold him responsible against making false accusations. This would also put the Magistrate on guard against routinely referring such complaints to the concerned police for investigation. In the present case, the complainant has not complied with this requirement. He has also not filed any affidavit owning responsibility for the allegations made in the complaint.

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Infact when the complaint was referred to the jurisdictional Dy.S.P. to investigate and report, after conducting detailed investigation, he has submitted ‘B’ report stating that the allegations made are false. However without passing any order on the said report, the special court has proceeded to record sworn statements of complainant and his witnesses and taken cognizance. When the complainant accused the Sub-Editor Nagaraj Dundappa Patil was arrested and medically examined, no injuries have found on his person and he has also not complained before the Magistrate that he

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CRL.R.P.NO.100161/2016

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was abused and assaulted by the accused (petitioner herein). Admittedly, as held in Gauri Shankar Prasad, sanction order is not secured against the accused to prosecute him for the alleged offences. In the light of the above discussion, this Court is of the considered opinion that the impugned order is not tenable and accordingly, the following:

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ORDER

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Petition filed u/sec.397 r/w 401 Cr.P.C. is

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allowed.

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The impugned order dated 01.04.2016 passed in Spl.Case No.25/2016 by the II Addl.District and Sessions Judge, Bagalkot taking cognizance against the accused is hereby set aside.

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In the result, the complaint is dismissed.

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Sd/JUDGE

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CLK

Sri.Bahuddin v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri.Bahuddin v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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