Sri. C. Ramesh Vs State of Karnataka

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO QUASH THE CHARGE SHEET SUBMITTED IN C.C.NO.31218/2017 PENDING ON THE FILE OF VII A.C.M.M., BENGALURU FOR THE OFFENCE P/U/S 447, 506 AND 509 OF IPC., VIDE ANNEXURE-A; SET ASIDE THE IMPUGNED ORDER DATED 29.12.2017 BEING THE ORDER TAKING COGNIZANCE PASSED BY THE C.M.M., BENGALURU IN C.C.NO.31218/2017 VIDE ANNEXURE-E AND ETC.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL ORDER

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This petition under Section 482 of Cr.P.C is preferred with the following prayers:

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“a) call for the records in CC No.31218/2017 from the Court of VII Addl. Chief Metropolitan Magistrate, Bengaluru;

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b) quash the charge sheet submitted in CC No.31218/2017 pending on the file of VII Addl. Chief Metropolitan Magistrate, Bengaluru for the offences punishable under Sections 447, 506 and 509 of IPC., vide Annexure-A ;

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c) set aside the impugned order dated 29.12.2017 being the order taking cognizance passed by the Chief Metropolitan Magistrate, Bengaluru in CC No.31218/2017 vide Annexure-E ;

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d) set aside the order dated 11.11.2019 passed by the VII Addl. Chief Metropolitan Magistrate, Bengaluru, in CC No.31218/2017 vide Annexure-J ;

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e) and grant such other relief or reliefs as this Hon'ble Court deems fit under the circumstances of the case including costs, in the interest of justice and equity.”

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Learned counsel for the petitioner seeking to set aside the impugned order taking cognizance dated 29.12.2017 and quashing of the charge sheet would urge two grounds, firstly that there is no sufficient material against the petitioner for taking cognizance of the offence alleged, as averments in the complaint does not disclose the ingredients of the offences alleged and secondly, the private complaint was not accompanied with an affidavit, contrary to the law laid down by the Apex Court in Priyanka Srivastava and Another Vs. State of U.P and Others reported in (2015) 6 SCC 287 .

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Learned counsel for the petitioner placed reliance on a decision of the Co-ordinate Bench of this

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Court in Smt. Saritha Sekhar and Others Vs. State of Karnataka and Other (Crl.P.No.7866/2022 and connected matter disposed on 18.05.2023), wherein this Court relying on Priyanka Srivastava ( supra ) quashed the criminal proceedings initiated against the petitioners therein, on the ground that initial inception of the complaint itself was not in accordance with law as there was no affidavit filed along with the complaint.

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Insofar as prayer seeking to set aside the order dated 11.11.2019, wherein the learned Magistrate has allowed the application filed by the prosecution under Section 242(2) of Cr.P.C, permitting the prosecution to produce certain documents as prayed in the application, it is contended that those documents were not at all part of the charge sheet and the learned Magistrate was mislead

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by the prosecution stating that they were already produced along with the charge sheet.

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Relying on a decision of the Bombay High Court

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in the case of Bhagyashree Prashant Wasankar Vs.

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State of Maharashtra, Through Police Station Officer reported in 2021 SCC Online Bom 1064 , the learned counsel contended that the documents cannot be directly produced during the course of trial and at the time of the recording of evidence.

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Learned counsel for respondent No.2

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contended, relying on a decision of the Hon’ble Apex Court

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in M/s. Sas Infratech Pvt. Ltd. Vs. The State of Telangana and Another (Crl.A.No.2574/2024 disposed on 14.05.2024) that observation in Priyanka Srivastava ( supra ) was made by way of abundant caution to see that frivolous complaints are avoided, whereas in the present case complaint discloses prima facie materials and therefore, the learned Magistrate having regard to the averments in the complaint has rightly referred the matter

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for investigation under Section 156(3) of Cr.P.C exercising

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the jurisdiction vested upon him. He contended that the

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said order was passed on 08.06.2016, which was not challenged until an order was passed on an application filed under Section 242(2) of Cr.P.C and now the case is set down for trial and PW1 has been examined by the trial Court.

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Learned counsel for respondent No.2 further contended that Co-ordinate Bench of the Bombay High Court while referring to the judgment in Bhagyashree Prashant Wasankar ( supra ) has distinguished the said judgment and placing reliance on the judgment passed by this Court in B.L. Udaykumar and Others Vs. State of Karnataka (Crl.P.No.4398/2018 disposed on 23.07.2018) has held that the public prosecutor conducting the trial owes a duty to produce before the Court all evidence in support of the prosecution and cannot withhold any relevant piece of evidence which he finds necessary for trial of case.

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Respondent No.2 herein filed a complaint under Section 200 Cr.P.C against the petitioner alleging offences

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punishable under Sections 352, 354, 355, 506 and 509 of IPC. Perusal of the complaint averments do indicate that

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the averments made against the petitioner prima facie constitute the ingredients of the offences alleged therein. The learned Magistrate was pleased to direct investigation into the allegations, under Section 156(3) of the Cr.P.C vide order dated 08.06.2016. It is not in dispute that the prayer was made in the complaint to direct investigation by the Police under Section 156(3) of Cr.P.C. The order referring the complaint for investigation was passed on 08.06.2016. The said order was not challenged even after

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the charge sheet was filed and case was set down for trial. Only after the prosecution filed an application under Section 242(2) of Cr.P.C and an order was passed, the petitioner has preferred the instant petition on 10.04.2023, with multiple prayers.

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It is pertinent to extract the relevant paragraph Nos.8 to 10 of M/s. Sas Infratech Pvt. Ltd. ( supra ) here under:

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“8. In view of the above, it is clear that when the Magistrate in exercise of his judicial discretion directs investigation under Section 156 (3) of Cr. P.C., he cannot be said to have taken cognizance of any offence. It is only when the Magistrate after applying his mind prefers to follow the procedure under Chapter XV of Cr.P.C. by resorting to Sections 200, he can be said to have taken cognizance of the offence.

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9. The learned counsel for Respondent No.2 has placed reliance of the decision of this Court in "Priyanka Srivastava And Another Versus State of Uttar Pradesh And Others" (2015) 6 SCC 287 to submit that the complaint filed by the appellantcomplainant was not supported by an affidavit. In our opinion, the said observation has been made in the said case by way of abundant caution to see that frivolous complaints are avoided.

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10. In the instant case, as transpiring from the order passed by the Trial Court, the said Court had perused the complaint and the documents in support thereof, and also the submissions made by the learned counsel for the appellant-complainant and after having been prima facie satisfied, it had exercised its judicial discretion directing investigation under Section 156 (3) of Cr. P.C. Such order being

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just, legal and proper, the High Court should not have interfered with the same, more particularly while exercising limited powers under Section 482 of Cr. P.C.”

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In light of the above decision of the Apex Court, it cannot be said that the order of referring the complaint for investigation under Section 156(3) of Cr.P.C was without jurisdiction.

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Insofar as the second contention seeking to set aside the order dated 11.11.2019 is concerned, reference was made to paragraph No.9 of the order passed by the Bombay High Court in Bhagyashree Prashant Wasankar (supra) which is extracted here under:

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“9. It was submitted that in the absence of such procedure being followed, the witness could not be permitted to directly produce additional documents before the Sessions Court during the course of the trial. The learned counsel for the petitioner also invited attention of this Court to the judgment in the case of Niwas Keshav Raut v. The State of Maharashtra (at the instance of Miraj Rly. Police Station), passed by this Court reported in 2015 SCC OnLine Bom 4214. It was submitted that the said

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judgment pertained to Section 294 of the Cr. P.C. and in the facts and circumstances of the present case, the said provision had no applicability. By inviting attention to the said provision, it was submitted that only the prosecution or the accused, could produce documents before the Court under the said provision, followed by procedure of admission and denial. On this basis, it was submitted that the said provision would also not come to the rescue of the witness in the present case. By referring to the judgment of the Hon'ble Supreme Court in the case of Samsher Singh Verma v. State of Haryana (2016) 15 SCC 485, it was submitted that the object of Section 294 of Cr. P.C. was to accelerate the pace of the trial and it had nothing to do with the entitlement of a witness to directly produce documents before the Sessions Court during the course of the trial.”

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Learned counsel for respondent No.2 has placed

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strong reliance on the decision of this Court in B.L. Udaykumar ( supra ).

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This Court in the above case while dealing with a similar question and Section 242 of the Cr.P.C, at paragraph Nos.12 and 13 has observed as under:

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“12. As could be seen from the above, subsection (3) mandates the Magistrate to take all such evidence as may be produced in support of the prosecution. The use of the language “all such evidence” in the sub-section means that the court is required to take or receive all such evidence which the prosecution may produce in support of its case. Having regard to the wide language used in the section, the expression “all such evidence” cannot be given a restrictive meaning so as to hold that only such evidence as relates to those of persons who have been examined by the police or only the documents collected during investigation could be produced before the Court. To read the section in such a restricted manner would amount to reading into the sub-section something which is not there. Even otherwise “evidence” in strict sense means oral and documentary evidence. As defined in Section 3 of the Evidence Act “Evidence means and includes(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) (all documents including electronic records produced for the inspection of the Court) such documents are called documentary evidence.”

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13. Thus it is clear that sub-section (3) of section 242 casts a mandatory duty on the Magistrate to take all such evidence as may be produced in support of the prosecution. The word “produced” in sub-section (3) also cannot be given a restrictive meaning to hold that only the materials collected during investigation could be permitted to be produced in evidence. Such a construction would defeat the very purpose of trial. If the main object of criminal trial is to discover truth, necessarily all and every piece of evidence while could help the court to arrive at a just decision should be allowed to come on record. Therefore, it is immaterial whether the “evidence” sought to be produced during trial was either collected in the course of investigation or subsequent thereto. Section 91 Cr.P.C. no doubt empowers the court or the officer in charge of the Police Station to ensure the production of any ‘document or other thing’ ‘necessary or desirable’ for the purpose of any investigation, enquiry or other proceedings by issuing summons or written order to the person in whose possession or power such document or thing is; but section 242(3) Cr.P.C. requires the court to take all such evidence which the prosecution desires to produce including the documents which are not mentioned in sub-section (5) of section 173 Cr.P.C. subject of course furnishing to the accused a copy thereof and

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providing him a reasonable opportunity to meet the same. The only safeguard or restriction that could be thought of in view of the provisions of the Evidence Act is that such evidence must relate to the matters of fact in enquiry. In other words, as long as the proposed evidence, either oral or documentary, is relevant and in support of the prosecution case, the Magistrate cannot refuse to receive it. ”

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The order passed in Bhagyashree Prashant Wasankar (supra) was considered by the Co-ordinate Bench of High Court of Judicature at Bombay in Arati Sanyog Sawant and Another Vs. The State of Maharashtra (WP.No.641/2023 disposed on 17.04.2023). In the said decision, the Court was pleased to distinguish the judgment in Bhagyashree Prashant Wasankar (supra) relying on paragraph Nos.12 to 14 of B.L. Udaykumar ( supra ).

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For the foregoing reasons, this Court is of the considered view that there is no illegality committed by the learned Magistrate either in referring the complaint for

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investigation or taking cognizance of the offences or in allowing the application filed by the prosecution under Section 242 Cr.P.C. Further, considering that the trial is in progress, this is not a fit case to interfere with the order passed by the Court below and to quash the proceedings.

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ORDER

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i. The petition is dismissed.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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AT List No.: 1 Sl No.: 38

Sri. C. Ramesh v. State of Karnataka

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Sri. C. Ramesh v. State of Karnataka

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