Paris Mathura Gasti vs Kumari Jayashri D/O. Dondiba ...
2021 Latest Caselaw 7101 Kant

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              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH

         DATED THIS THE 23RD DAY OF DECEMBER, 2021

                            BEFORE

              THE HON'BLE MRS.JUSTICE M.G.UMA

                     CRL.P NO.100343/2014
BETWEEN

1.    PARIS MATHURA GASTI
      AGE: 34 YEARS, OCC: POLICE CONSTABLE
      KAGWAD POLICE STATION,
      KAGAWAD, TQ: ATHANI DIST: BELGAUM

2.    SHRISHAIL NEELAPPA GABI
      AGE: 33 YEARS, OCC: PSI, PRESENTLY IN
      FMS HUBLI, DIST: DHARWAD
                                               ...PETITIONERS

(BY SRI.SANTOSH MALAGOUDAR, ADV. FOR PETITOINER NO.1.
    SRI.SRINAND A.PACHCHAPURE, FOR PETITOINER NO.2.)

AND

1.    KUMARI JAYASHRI D/O. DONDIBA SHERKHANE
      AGE: 21 YEARS, OCC: STUDENT
      R/O. NAVALIHAL ( KIDIGED) TQ: ATHANI
      DIST: BELGAUM
2.    THE STATE OF KARNATAKA
      THROUGH KAGAWAD POLICE STATION
      NOW R/BY SPP, HIGH COURT OF KARNATAKA
      DHARWAD
                                                RESPONDENTS

(BY SRI.DEEPAK MAGANUR, ADV. FOR R1,
    SRI.PRAVEEN K.UPPAR, HCGP FOR R2 )
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      THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO QUASH THE ORDER DATED 13.02.2014 IN
CRL.RP.NO.517/2013 PASSED BY THE VII-ADDL. DIST. & SESSIONS
JUDGE, BELGAUM, AT CHIKODI, CONFIRMING THE ORDER DATED
26.09.2013 PASSED BY THE ADDL. CIVIL JUDGE & JMFC COURT,
ATHANI IN C.C.NO.2/2013 AND TO QUASH THE ENTIRE CRIMINAL
PROCEEDINGS IN C.C.NO.02/2013 ON THE FILE OF ADDL. CIVIL
JUDGE & JMFC COURT, ATHANI, INSOFAR AS PETITIONERS ARE
CONCERNED.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 24.11.2021 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

The petitioners/accused Nos.14 and 15 in C.C.No.2/2013

(P.C.No.207/2011) on the file of the Additional Civil Judge &

JMFC, Athani registered for the offences punishable under

Sections 323 and 504 of IPC r/w Section 34 of IPC are seeking to

quash the criminal proceedings initiated against them.

2. The brief facts of the case are that, respondent No.1

as the complainant filed the private complaint in

P.C.No.207/2011 before the trial court against accused Nos.1 to

15 for the offence punishable under Sections 143, 147, 148,

323, 324, 326, 354, 448, 504, 506, 307 r/w Section 149 of IPC.

It is alleged by the complainant that on 22.08.2011 accused

Nos.1 to 13 have been to the house of the complainant and

committed the offence as stated above. The petitioners herein

being accused Nos.14 and 15 being the police Sub-Inspectors

supported the criminal acts of accused Nos.1 to 13, refused to

register the criminal complaint against them, abused the

complainant and her brothers/son Prakash Dondiba and Anil

Dondiba in filthy language, assaulted them and criminally

intimidated with dire consequences. Thereby all the accused

have committed the offence as stated above.

3. Initially the learned Magistrate took cognizance of

the offence for all the offences against accused Nos.1 to 15,

which was called in question by these petitioners by filing

criminal revision petition before Principal Sessions Judge,

Belagavi. The said revision petition was came to be allowed vide

order dated 04.06.2013 wherein the order taking cognizance for

all the above stated offence against the petitioners was set aside

and the matter was remanded back to the trial court to

reconsider the factual aspects and the statements of the

witnesses about the allegations made against the petitioners i.e.,

accused Nos.14 and 15 and to pass appropriate orders. It is

thereafter, the learned Magistrate said to have taken cognizance

of the offence under Section 323 and 504 r/w Section 34 of IPC

against these petitioners. The said order dated 26.09.2013 was

again called in question by the petitioners by filing criminal

revision petition in 517/2013 before the VII Additional District

and Sessions Judge, Belagavi at Chikodi. The said revision

petition was came to be dismissed vide order dated 13.02.2014.

4. Being aggrieved by taking cognizance of the offence

against the petitioners and dismissal of the criminal revision

petition, the petitioners are before this court seeking to quash

the order dated 26.09.2013 taking cognizance of the offence and

consequently, quash the criminal proceedings registered in

C.C.No.2/2013 before the trial court, in the interest of justice.

5. Heard the learned counsel Sri.Santosh Malagoudar

for petitioner No.1 and Sri.Srinand A.Pachchapure for

petitionerNo.2 and learned counsel Sri.Deepak Maganur for

respondent No.1 and learned HCGP Sri.Praveen K.Uppar for

respondent No.2.

6. Learned counsel for the petitioners submitted that

the private complaint has been lodged by the complainant

contains so many corrections, insertion and interpolation. The

relationship of the parties described in the complaint are also

inconsistent. Even though it is specifically stated that these

petitioners being the police officials refused to register the FIR

on the basis of the first information lodged by the sons of the

complainant who are the injured and abused them in filthy

language, Anil Dondiba, Prakash Dondiba and Devadas are the

brothers of the complainant and not her sons. Even though it is

said that the petitioners have abused the said persons in filthy

language and criminally intimidated with dire consequences,

there is absolutely no materials in support of the same. Learned

counsel further submitted that as per the averments made in the

complaint, the incident had occurred in the chambers of the

petitioners in the police station, which was recorded in the

mobile and the complainant is ready and willing to produce the

same to evidence the fact, but no such materials are placed

before the court. So called Anil and Prakash who were said to

have been assaulted by these petitioners who are accused in

crime No.122/2011 were apprehended and produced before the

learned Magistrate. They have never made any allegation

against these petitioners before the learned Magistrate

immediately after their production. Even though the complainant

states that her children were in the house and the accused have

committed the offence, the fact remains that the complainant is

a spinster and she has no children.

7. Learned counsel further submitted that the complaint

in question is said to have been presented before the trial court

by the complainant on 30.08.2011, but on the said date she was

apprehended in crime No.122/2011 and was presented before

the learned Magistrate who remanded her to judicial custody till

06.09.2011. Therefore, she could not have present before the

court as contended.

8. Learned counsel also contended that even though it

is alleged that the information regarding commission of the

offence by accused Nos.1 to 13 was given by the injured Prakash

and Anil and these petitioners have refused to register the FIR,

in fact the petitioners have registered LPT No.150/2011 (Local

Petition Number) for preliminary enquiry. The petitioners have

discharged their official duty as public servants and therefore, no

offence could be made out against them. No sanction is obtained

by the appropriate authority to prosecute the petitioners. Under

these circumstances, it is clear that the petitioners being the

police officials are deliberately have been arrayed as accused

without any basis. Therefore, the impugned order taking

cognizance of the offence by the learned Magistrate which was

confirmed by the revisional court is liable to be set aside.

Consequently, the criminal complaint filed by the complainant is

also liable to be quashed. Accordingly, he prays for allowing the

petition.

9. Learned counsel placed reliance on the decision of

the Hon'ble Apex Court in the case of D. Devaraja vs Owasis

Ssabeer Hussain1 in support of his contention that, when the

sanction is not obtained to prosecute the accused as required

under Section 197 of Cr.P.C., the criminal proceedings is liable to

be quashed.

(2020) 7 SCC 695

10. Per contra, learned counsel for respondent No.1

contented that serious allegations are made against the

petitioners for having committed the offence. Even though there

are corrections in the private complaint, the same would not go t

the root of the matter. The discrepancies in describing the

relationship could be set right by the complainant during trial.

Those mistakes would not falsify the case of the complainant and

will not come in the way of the trial court taking cognizance of

the offence. Specific allegations were made against these

petitioners who were working as police officers in Kagwad police

station. They have not only refused to register the criminal

complaint against accused Nos.1 to 13 even though they have

committed the heinous offence including the offence under

Section 307 of IPC, but on the other hand, they supported those

accused and abused the injured Prakash and Anil in filthy

language, assaulted them and criminally intimidated with dire

consequences. The said act on the part of the petitioners cannot

be under the discharge of their duty. Under such circumstances,

no sanction is required to prosecute them, as they have

committed criminal offence. Since the petitioners refused to

register the criminal complaint, a private complaint was came to

be filed on 30.08.2011 and the delay is properly explained by

the complainant. After considering all these materials on record,

the learned Magistrate took cognizance of the offence, after

recording the sworn statement of the complainant and

witnesses. Since there are prima facie materials for having

committed the offence even against these petitioners, the

criminal proceedings is not required to be quashed. Hence, he

prays for dismissal of the petition as devoid of merits.

11. Learned HCGP for respondent No.2 supporting the

contention of the learned counsel for respondent No.1 submitted

that since there are prima facie materials for having committed

the offence, the criminal petition is liable to be dismissed.

12. Perused the materials on record. The point that

would arise for my consideration is:

Whether the criminal proceedings initiated

against the petitioners for the offences under

Sections 323 and 504 of IPC r/w Section 34 of IPC is

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liable to be quashed by exercising the power under

Section 482 of Cr.P.C.?

My answer to the above point is in the 'Negative' for the

following:

REASONS

13. Respondent No.1 filed the private complaint against

accused Nos.1 to 15 making serious allegations against them. It

is stated that on 22.08.2011 at 4.00 p.m. when the complainant

and her two children were in the house, accused Nos.1 to 13

illegally trespassed into the house, abused them in filthy

language, accused No.1 was armed with the club and other

accused with sickle and chopper. When the son of the

complainant Prakash questioned the action of the accused,

accused No.1 abused him and questioned him regarding filing of

suits before the trial court and insisted to withdraw the suits that

are pending against them. In the meantime, all accused Nos.1 to

13 assaulted the said Prakash, Babasab, Anil, Jayashree, Manjula

with the club and other weapons. They have also manhandled

the complainant and her children. When Anil escaped from the

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assault and started running from the scene of occurrence, the

accused chased with an intention to cause his death. The

neighbours have came and intervened in the matter. Otherwise,

accused Nos.1 to 13 would have caused the death of the

complainant and her children. It is stated that accused have

committed the offence only with an intention to pressurize the

complainant and her children to withdraw the suit

O.S.No.1423/2009 filed against them. Since the brother of the

complainant have sustained injuries, they went to Kagwad police

station at 4.30 p.m. and requested to take their complaint

against accused Nos.1 to 13. Accused Nos.14 was the PSI of

Kagwad police station directed them to come on the next day.

Accordingly, the brothers of the complainant i.e., Prakash and

Anil and Devadas have went to the police station on 23.08.2011

at 1.00 p.m. Accused No.14 abused them in filthy language and

categorically stated that he is not going to register any complaint

and on the other hand, stated that a complaint is already

registered against them. When Prakash questioned such

highhandedness of accused No.14, accused No.15 abused him in

filthy language and also kicked him away. There was altercation

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between accused No.14 and Devadas son of the complainant

inside the chamber of accused No.14, which went on up to half

an hour. The incident was recorded in the mobile and the

complainant undertakes to produce the same before the court.

Accused No.14 went away from the chamber and accused No.15

along with two other police officials assaulted Prakash, Anil and

registered a false complaint against them and produced before

the learned Magistrate. They have also instructed not to reveal

the fact of assault before the learned Magistrate. Devadas who is

the eye-witness who has seen the entire incident. Therefore, the

complaint requested the trial court to take cognizance of the

offence and to initiate legal action.

14. The trial court took cognizance of the offence against

accused Nos.1 to 15 as stated in the private complaint which

was came to be set aside by the criminal court as stated above.

Thereafter, the learned Magistrate once again took cognizance of

the offence against accused Nos.14 and 15 who are the

petitioners herein for the offences punishable under Section 323

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and 504 r/w Section 34 of IPC, which his called in question

before this court.

15. On perusal of the private complaint there are many

corrections made in the complaint, but the contention of the

learned counsel for the petitioners that such corrections were

carried out without the permission of the court cannot be

accepted at this stage. If that is the case, the same could be

brought to the notice of the trial court at appropriate stage.

16. The contention of the learned counsel for the

petitioners that the relationship of the injured with the

complainant is not properly mentioned in the complainant also

cannot be the ground for quashing the criminal proceedings as

there are serious allegations made against these petitioners.

17. The other contentions raised by the learned counsel

for the petitioners is that the complainant was apprehended on

30.08.2011 in connection with crime No.122/2011 of Kagwad

police station and she was in judicial custody till 06.09.2011 also

cannot be taken into consideration at this stage, to contend that

the complainant was never present before the trial court nor

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presented the complaint, as no materials are placed before the

court as to at what time the complainant was apprehended in

crime No.122/2011 and at what time the complaint was

presented before the trial court. Such facts and circumstances

could be considered by the trial court only at the time of trial.

But the same cannot be a ground to quash the criminal

proceedings in the absence of specific materials that are placed

before the court.

18. The next contention raised by the learned counsel for

the petitioners is that injured Prakash and Anil were

apprehended in crime No.122/2011 and they were produced

before the learned Magistrate, but they never complained about

the highhandedness against these petitioners before the learned

Magistrate. In this regard, the complainant made specific

averment in the private complaint that while producing before

the learned Magistrate, the police have threatened both the

injured, not to complain against the police and therefore, they

were not dare enough to complain regarding the highhandedness

of these petitioners. Such explanation given by the complainant

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in the complaint cannot be ignored to form an opinion that the

no such incident had taken place as contended by the

complainant.

19. The other contention taken by the learned counsel

for the petitioners is that the incident said to have been recorded

in the mobile phone and the same is not produced before the

court at the time of taking cognizance of the offence. This

contention again cannot be accepted at this stage, as it is for the

complainant to prove her contention before the trial court. At the

time of taking cognizance, the learned Magistrate is satisfied

with the prima facie allegations found in the complaint and

proceeded to take cognizance of the offence. If at all such a

mobile recording is available with the complainant, the same

could be produced before the trial court at the time of trial and it

is for the trial court to appreciate the same in accordance with

law. But non production of the said video recording itself cannot

be a ground to quash the criminal proceedings.

20. The other contention raised by the learned counsel

for the petitioners is that no sanction as required under Section

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197 of the Cr.P.C. was obtained to prosecute these petitioners

and therefore, the criminal proceedings against the petitioners is

to be quashed. In support of such contention, learned counsel

for the petitioners placed reliance on the decision of the Hon'ble

Apex Court in the case of D.Devaraja (supra). The Hon'ble Apex

Court considered the facts and circumstances of the case before

it where the police officers have acted in excess of their duty,

but there is a reasonable connection between the act and the

performance of the official duty held that whether sanction is

necessary or not may have to be determined at any stage of the

proceedings. It is held that the application under Section 482 of

Cr.P.C. is maintainable to quash the proceedings which are ex

facie bad for want of sanction and instituted in abuse of process

of court. It is also held that, if on the face of the complaint, the

act alleged appears to have a reasonable relationship with official

duty, where the criminal proceeding is apparently prompted by

mala fides and instituted with ulterior motive, power under

Section 482 of Cr.P.C. would have to be exercised to quash the

proceedings to prevent abuse of process of court. The Hon'ble

Apex Court set several guidelines to find out as to whether the

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act alleged is connected to the discharge of the official duty and

investigation of a recorded criminal case. It is held that if such

act could be reasonably connected to discharge of official duty

then only sanction could be insisted. But on the other hand, if

the police officer exceeds his limits and commits an act totally

unconnected with the official duty, sanction under Section 197 of

Cr.P.C. cannot be insisted under such circumstances. In para 70

of the judgment, the Hon'ble Apex Court gave an example of a

police man assaulting a domestic help or indulging in domestic

violence and held that he would certainly not be entitled for any

protection.

21. Learned counsel for respondent No.1 placed reliance

on the decision of the Hon'ble Apex Court in the case of

Inspector of Police and Another vs Battenapatla Venkata

Ratnam and Another2 wherein the Hon'ble Apex Court placing

reliance on its earlier decision in Supramanian Swamy v.

Manmohan Singh3 held as under:

(2015) 13 SCC 87

(2012) 3 SCC 64

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"Public servants are treated as a special class of persons enjoying the said protection so that they can perform their duties without fear and favour and without threats of malicious prosecution. However, the said protection against malicious prosecution which was extended in public interest cannot become a shield to protect corrupt officials. These provisions being exceptions to the equality provision of Article 14 are analogous to the provisions of protective discrimination and these protections must be construed very narrowly. These procedural provisions relating to sanction must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to escalation of corruption."

22. The acts alleged against the present petitioners if

considered in the light of these decisions, the allegation that the

petitioners have refused to register the criminal case for

cognizable offences, assaulted one Prakash and Anil in the police

station, abused them in filthy language and criminally

intimidated to kick them away, cannot be under the discharge of

their official duty. By no stretch of imagination, it can be said

that a police official can do such acts in the police station. The

acts alleged against the petitioners is certainly unconnected with

their official duty. therefore, I am of the opinion that the

petitioners cannot use the protection of sanction under Section

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197 of Cr.P.C. to shielf their illegal and criminal acts as alleged

against them by the complainant.

23. It is the settled proposition that if the averments

made in the complaint makes out prima facie material to

constitute the offence in question, the inherent jurisdiction under

Section 482 of Cr.P.C. is not liable to be exercised to quash the

criminal proceedings. But on the other hand, the court should be

slow in exercising the inherent jurisdiction for quashing the

criminal proceedings and permit the trial court to proceed with

the trial giving liberty to the complainant to substantiate his

contention, by placing cogent materials and at the time of taking

cognizance the prima facie satisfaction of the learned Magistrate

is required and not the proof beyond reasonable doubt.

Therefore, the contention of the petitioners that there are so

many discrepancies, lapses on the part of the complainant,

cannot be considered at this stage to quash the criminal

proceedings. Therefore, I am of the opinion that the criminal

petition filed by the petitioners is liable to be dismissed as not

maintainable. However, all contentions raised by the petitioners

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is to be kept open to be raised before the trial court during trial.

Hence, I answer the above point in the 'negative' and proceed to

pass the following:

ORDER

The criminal petition is dismissed.

However, all contention raised herein by the petitioners is

to be kept open to be raised before the trial court during trial

SD/-

JUDGE

MBS/-