Karnataka High Court
P. Surekha And Ors vs The State Of Karnataka And Anr on 18 December, 2021
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
R
TH
DATED THIS THE 18 DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.200207/2019
BETWEEN:
1. P. SUREKHA
D/O PULAVARTHI VISWESWARA
AGE: 30, OCC: HOUSEHOLD WORK
R/O TIRMALA NILAYA
DOOR NO.628/2
SHIVANAND SWAMI COMPOUND
K.B.EXTENSION
DAVANAGERE - 577001.
2. P. RADHAKRISHNA
S/O P.REDDIYYA
AGE:66 YEARS, OCC: BUSINESS
R/O TIRMALA NILAYA
DOOR NO.628/2
SHIVANAND SWAMI COMPOUND
K.B.EXTENSION
DAVANAGERE-577001.
3. B.T.CHAWAN
AGE:MAJOR
OCC: ADDL.SUPERINTENDENT OF POLICE
DAVANAGERE, CURRENTLY
R/O SOLAPUR ROAD
VIJAYAPURA-586103.
4. PARASHURAMAPPA
HEAD CONSTABLE
CPI CENTRAL CIRCLE POLICE STATION
2
NEAR DAVANAGERE CLUB
DAVANAGERE - 577001.
... PETITIONERS
(BY SRI R.S.LAGALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
THROUGH THE PSI.,
SINDHANOOR TOWN PS.
REP. BY THE ADDL.SPP
HIGH COURT OF KARNATAKA
KALABURAGI BENCH-585102.
2. K.K.VISHWESHWAR RAO
S/O SATYANARAYANA MURTHY
AGE: 65 YEARS, OCC: BUSINESS
R/O ADARSH COLONY
SINDHANOOR
DIST.RAICHUR-584128.
... RESPONDENTS
(BY SRI GURURAJ V.HASILKAR, HCGP FOR R1;
SRI MAHANTESH PATIL, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CRIMINAL PROCEDURE CODE PRAYING TO ALLOW THIS
CRIMINAL PETITION & SET ASIDE THE ORDER OF ISSUE OF
PROCESS DATED 30.08.2018 PASSED BY THE PRL. CIVIL JUDGE
& JMFC COURT, SINDHANUR IN CRL.CASE NO.804/2018
(ARISING OUT OF PRIVATE COMPLAINT NO.406/2012) AGAINST
THE PETITIONERS TO FACE TRIAL FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 341, 342, 364A, 120(B) R/W 34
OF IPC.
3
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Cr.P.C.,
praying this Court to set aside the order of issue of process
dated 30.08.2018 passed by the Prl. Civil Judge & JMFC
Court, Sindhanur in Crl.Case No.804/2018 (arising out of
Private Complaint No.406/2012) against the petitioners to
face trial for the offences punishable under sections 341,
342, 364A, 120(B) read with Section 34 of IPC.
2. Heard the learned counsel for the petitioners
and the learned High Court Government Pleader for
respondent No.1 and learned counsel for respondent No.2.
3. The factual matrix of the case is that
respondent No.2 has filed a private complaint which is
numbered as PC No.406/2012 before the Trial Court and
the learned Magistrate after receiving the complaint took
cognizance and proceeded to hold an enquiry and
accordingly examined the complainant as CW.1 and also
examined one witness as CW.2 and thereafter issued
process against these petitioners vide order dated
30.08.2018 and hence, the present petition is filed
seeking relief of quashing of issuance of process against
these petitioners. Petitioner Nos.1 and 2 are the daughter-
in-law and uncle of daughter-in-law of the respondent
No.2. The allegation made against these petitioners that at
the instance of petitioner Nos.1 and 2, petitioner Nos.3
and 4 subjected the respondent No.2 for abuse and
without registering the case brought them to the police
station and pressurized to pay an amount of
Rs.30,00,000/- in favour of petitioner No.1 and also an
allegation is made that petitioner Nos.3 and 4 wrongfully
confined respondent No.2 in conspiracy with petitioner
Nos.1 and 2 and petitioner Nos.3 and 4 are Additional
Superintendent of Police (for short 'the ASP') and Head
Constable CPI and even threatened on 29.09.2012 and
made them to sit till late night and asked them to come on
the next date along with money.
4. The learned counsel for the petitioners
vehemently contended that petitioner Nos.3 and 4 in
discharge of their public duties in pursuance of the
representation given to the Superintendent of Police dated
14.09.2012 an intimation was sent to the respondent No.2
for enquiry but inspite of the intimation was given the
respondent No.2 did not turn up and thereafter he was
secured. The learned counsel would also submit that in
view of judgment of the Hon'ble Apex Court in the cases of
dowry harassment and other matrimonial cases, the police
cannot register the case and the receipt of the complaint
only for the purpose of enquiry, they were secured when
the respondent No.1 did not appear inspite of intimation
given. Hence, the very initiation of criminal prosecution
against the petitioner Nos. 3 and 4 who are discharging
their public duties consequent upon the representation
which was given to the Superintendent of Police. The
Superintendent of Police in turn directed the CPI Central to
look into the matter and hence, it cannot be termed as
powers exercising by petitioner Nos.3 and 4 is excess.
5. In support of his argument the learned counsel
for the petitioners relied upon the judgment of the Hon'ble
Apex Court in the case of D. Devaraja vs. Owais Sabeer
Hussain reported in AIR 2020 SC 3292 wherein the
Hon'ble Apex Court discussing Section 170 of the
Karnataka Police Act (in short 'the KP Act') with regard to
taking of cognizance is concerned in the complaint alleging
police excesses while complainant was in police custody if
any previous sanction is obtained before taking cognizance
against the accused police officer. The Hon'ble Apex Court
in detail discussed in paragraph-71 that even if the act
alleged is in excess of discharging of public duties they get
the police protection and if that act is done, in connection
with reasonable act and the performance of the official
duty, the excess will not to be a ground to deprive the
policemen of the protection of government sanction for
initiating criminal action against him.
6. The learned counsel also relied upon the
judgment of the Apex Court in the case of State of
Orissa, Through Kumar Raghvendra Singh and
Others vs. Ganesh Chandra Jew reported in 2004 SCC
(Crl.) 2104 and brought to the notice of this Court
Section 197 of Cr.P.C., wherein protection is given to the
public servant if it is in discharge of official duty. The
Hon'ble Apex Court held that even if same is in excess in
discharge of public duty, and even if the said act is done in
reasonable action for his official duty, the police officer has
to be protected.
7. Per contra, learned counsel for the respondent
No.2 would contend that even though representation is
given, no case was registered and the act done by the
petitioner Nos.3 and 4 is not in reasonable action that is
official duty and if case is registered and thereafter
secured the respondent No.2, then it would have been in
connection with discharge of official duty. But in the case
on hand, without registering the case went to the house of
respondent No.2 and even these petitioners pressurized
the complaint and witnesses 2 and 3 to remove their shirt
and pants and since C.W.1 and 2 not agreed to pay the
said amount of Rs.30,00,000/- and the removal of shirt
and pant of the CW.2 and 3 witnesses is not in reasonable
action with their official duty and hence, the judgment
referred by the learned counsel for the petitioners are not
applicable to the facts of the case on hand. The learned
counsel in his argument would submit that this Court in
Criminal Petition No.996/2021 dated 24.05.2021 in the
case of S. Shivakumar and Others vs. The State of
Karnataka and Others referred the judgment of the
Hon'ble Apex Court in D. Devaraja's case referred supra
and distinguished the factual aspects of the case where
also without registration of the case, the complainant was
confined in the police station for a period of two days and
he was subjected to assault and due to the humiliation, he
took extreme step of committing suicide. Hence, the this
Court came to the conclusion that protection given under
Section 170 of the KP Act will not come to the aid of the
police official and the same is not even excess of their
power but it is abuse of powers given to them and hence,
the protection cannot be given in favour of the petitioner
Nos.3 and 4. The learned counsel would submit that
matter was already settled before the Lok-Adalath. In the
Lok-adalath proceedings, the amount which was agreed
was paid and demanded excess amount that too by
adopting the method of coercion against respondent No.2
and other witnesses and hence, it is not a fit case to
exercise power under Section 482 of Cr.P.C., to quash the
proceedings.
8. Having heard the learned counsel for the
petitioners and the learned counsel for the respondent
No.2 and having taken note of the material available on
record, the respondent No.2 had filed a private complaint
and the learned Magistrate referred the matter under
Section 156 (3) of Cr.P.C., and thereafter police after
investigation has filed the B-Report. The same was
questioned by filing the protest memo and thereafter
sworn statement was recorded and thereafter learned
Magistrate proceeded to issue the process. Once the B-
report is filed, the complainant has to mention in the
protest memo the allegation against the respondent/
accused. But on perusal of the objection statement filed by
the complainant available at page No.41 only it is termed
as objection stating that Investigating Officer has not
enquired the complainant and further allegation is made
that he has not recorded the statement of the complainant
and hence, the said report has to be rejected and only
statement was made that accused Nos.3 to 5 are officers
of the police department and hence, the IO has filed the B-
report. It is settled law that once the protest memo is filed
before the learned Magistrate, disagreeing the B-report,
the said protest memo should contain the allegation
against the petitioners and on perusal of this protest
memo, which is mentioned as objection to B-report, no
such averments are made in the protest memo and only
formal objection is filed, once B-report is filed the contents
of the complaint cannot be looked into, the Court has to
look into the contents of the protest memo. No doubt, the
Criminal Procedure Code does not define any practice of
filing of protest memo and the same is a conventional.
Once B-report is filed, the complainant has to be given an
opportunity and in this case, the opportunity was given
and complainant has not narrated anything in the
objection statement or protest memo constituting the
offence against the petitioners herein. The learned
Magistrate failed to take note of the contents of the protest
memo and once the protest memo is filed, the protest
memo has to be considered as complaint. No doubt, the
complainant in his sworn statement narrated the contents
of the original complaint and one witness has been
examined as CW.2 narrating the contents of the original
complaint and the learned Magistrate while issuing the
process in terms of the order discussed with regard to
sworn statement and also relied upon the document Exs.
C1 to C6 and also observed that accused Nos.3, 4 and 5
are the public officers and before taking cognizance
against the public servants, the Court has to examine
whether sanction is required and there is also an exception
where a criminal act is done not in reasonable relation to
discharge of public duties it does not require sanction
under Section 197 of Cr.P.C.
9. No doubt under Section 197 of Cr.P.C., the
protection is given to the public servant who have
discharged their public duties in connection with their
discharge of official duties and if it is not in connection with
public duty then, no need to invoke Section 197 of Cr.P.C.,
but in the case on hand, representation given to the
Superintendent of Police dated 14.09.2012 is not in
dispute and also on perusal of the complaint, the same is
referred in the complaint that consequent upon the said
representation, the Superintendent of Police directed the
CPI to enquire into the matter and in view of the said
direction, the intimation was sent to the respondent No.2
and where he did not turn up for the intimation then
respondent No.2 was secured to the police station and
hence, it is clear that consequent upon the complaint made
to the Superintendent of Police, the respondent No.2 was
secured but the allegation is that he was pressurized to
settle the issue.
10. The learned counsel for the petitioner brought
to the notice of this Court the judgment of the D.
Devaraja's case referred supra that if it is in excess of
powers in connection with reasonable action in connection
to discharge of their public duty then protection has to be
given to the police officer invoking Section 170 of KP Act.
But in the case on hand, it is not in dispute that
representation was given by the first petitioner to the
police and in terms of said representation only, the police
have acted upon i.e., petitioner Nos.3 and 4.
11. Learned counsel for the respondent also
brought to the notice of this Court petitioner No.1 also filed
a PCR No.49/2012 and the same was dismissed after
considering the material and the same is not challenged
and it has reached its finality but the fact that there was a
dispute with regard to payment of amount of
Rs.30,00,000/- between the parties which emerges on
perusal of the record. When the police have acted upon in
terms of the reasonable relation of their police duty and
based on the representation dated 14.09.2012 given by
the first petitioner, discharged the public duties, it cannot
be termed as the same is an abuse of their power.
Admittedly, the respondent No.2 was called upon to police
station consequent upon the representation, he did not go
to the police station and police have not directly registered
the case in view of the guidelines of the Hon'ble Apex
Court in a matrimonial case that too to conduct an enquiry
and in terms of the same, respondent No.2 was secured
and the respondent's counsel also does not dispute the
fact that intimation was given in pursuance of the
representation and also the fact that though intimation
was given he did not come to the police station and the
same is evident from the complaint itself. When such being
the case even if excess of the duty and the Hon'ble Apex
Court discussed in the judgment referred supra, that the
police officers having protection under Section 170 of the
KP Act and also in D. Devaraja's case in paragraph-71
held that if such act is in reasonable action in discharge of
public duty protection has to be given to the police.
12. The learned counsel appearing for the
respondent No.2 also relied upon the judgment of this
Court in S. Shivakumar's case referred supra and no
doubt, in the said case this Court has distinguished the
judgment of the D. Devaraja's case wherein the
complainant's son was wrongfully detained in the police
station for a period of two days and he was subjected to
assault as a result he sustained injuries. He was admitted
to the hospital on account of assault made by the Police
officials and thereafter also victim made an attempt to
commit suicide and he was provided treatment. This Court
distinguished the judgment of the Hon'ble Apex Court in
Devaraja's case decided on 18.06.2020 and held that the
factual aspects of the case not come within the purview of
the said case wherein the act of the police not only excess
but it was beyond the duties of the public duty and hence,
not accepted the judgment of the Hon'ble Apex Court in
coming to the conclusion that the facts and circumstances
of the case do not come to the aid of the police officials.
But in the case on hand, as I have already discussed, the
same was not in reasonable connection with the discharge
of public duty and also petitioner No.1 is the daughter-in-
law of respondent No.2 and petitioner No.2 is the son of
petitioner No.1 and no doubt the records also reveals that
both the parties are in litigation in filing the private
complaint against each other and already complaint given
by petitioner No.1 was also dismissed and the same has
not been questioned and reached its finality. The dispute is
with regard to matrimonial dispute and respondent No.2 is
father-in-law of petitioner No.1. The dispute has arisen
with regard to the quantum of payment of permanent
alimony. First of all, the objections filed to the 'B' report
does not contain any ingredients of offences which have
been invoked against the petitioners. I have already
pointed out, the protest memo ought to have been filed in
the nature of the complaint and the same is also not in the
nature of the complaint, but it is in the form of filing of
objections to the 'B' report. When protest memo does not
constitute ingredients of any offence invoked against the
petitioner, I am of the opinion that the learned Magistrate
has committed an error in proceeding against the
petitioners and in issuing process only relying upon the
sworn statement of PWs.1 and 2. It is the settled law that
very protest memo should contain each and every
ingredients of offences invoked against the petitioners and
the same is not found in the protest memo. When such
being the facts and circumstances of the case, it is
appropriate to exercise power under Section 482 of
Cr.P.C., or otherwise it amounts to abuse of process.
13. In view of the discussions made above, I pass
the following:
ORDER
The petition is allowed.
The impugned order of issuance of process dated
30.08.2018 passed by the Principal Civil Judge and JMFC,
Sindhanur, in Criminal Case No.804/2018 (arising out of
P.C.No.406/2012) against the petitioners is hereby
quashed.
Sd/-
JUDGE
NB*/VNR
