Karnataka High Court
Sri. P C Mohan vs The Deputy Commissioner Of Police on 5 January, 2021
Author: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JANUARY, 2021
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
WRIT PETITION NO.51914 OF 2019 (GM-RES)
BETWEEN:
SRI. P C MOHAN
AGED ABOUT 55 YEARS
S/O PERICAL CHIKKAMUNISWAMAPPA
RESIDING AT NO.1928
30TH CROSS, BANASHANKARI II STAGE
BENGALURU-560070
...PETITIONER
(BY SRI: G L VISHWANATH, ADVOCATE)
AND:
1. THE DEPUTY COMMISSIONER OF POLICE
(SOUTH)
SOUTH END ROAD, GUPTA LAYOUT
JAYANAGAR
BANGALORE-560070
2. ANANDA T R
AGED ABOUT 53 YEARS
S/O T S RANGANATHA
NO.922, 3RD CROSS
SRIRAMPURAM
2
BANGALORE-560021
...RESPONDENTS
(BY SRI: V.S. HEGDE, SPP-II A/W
SMT: K.P. YASHODHA, HCGP FOR R1;
SRI: S. NAGARAJA, ADVOCATE FOR R2)
---
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
COMPLAINT DATED 12.9.2019 BEARING PCR NO.46/2019 PENDING
ON THE FILE OF HON'BLE LXXXI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (SPECIAL COURT EXCLUSIVELY TO
DEAL WITH CRIMINAL CASES RELATED TO ELECTED MPs/MLAs IN THE
STATE OF KARNATAKA) FILED BY R-2 UNDER SECTION 200 OF
CR.P.C. FOR OFFENCES PUNISHABLE UNDER SECTIONS 171-G, 177,
181, 191, 193, 199 AND 200 OF IPC, PRODUCED AT ANNX-G AND
QUASH THE ORDER DATED 8.11.2019 PASSED BY HON'BLE LXXXI
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BANGALORE
(SPECIAL COURT EXCLUSIVELY TO DEAL WITH CRIMINAL CASES
RELATED TO ELECTED MPs/MLAs IN THE STATE OF KARNATAKA) IN
PCR NO.46/2019 DIRECTING INVESTIGATION UNDER SECTION 156(3)
OF CR.P.C. AND REFERRING THE COMPLAINT FOR INVESTIGATION
AND REPORT TO DCP (SOUTH) AT ANNEXURE-H.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 22.12.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDER, THROUGH VIDEO CONFERENCE, THIS
DAY, THE COURT MADE THE FOLLOWING:
3
ORDER
Respondent No.2 herein filed a private complaint seeking
prosecution of the petitioner for the offences punishable under
sections 171G, 177, 181, 191, 193, 199, 200 of Indian Penal
code, on the allegation that the petitioner (hereinafter referred
to as "accused") intentionally out of fear that he would hurt the
feeling of a particular community and thereby loose elections,
suppressed the assets held by him and made a false declaration
in Form No.26 submitted before the Returning Officer for
contesting the Parliamentary Election in the year 2014 and 2019
and filed false affidavit on oath suppressing the factum of
holding assets in the form of immovable properties measuring 42
acres 14 guntas situated at Lakshmipura Village, Kasaba Hobli,
Devanahalli Taluk, Bangalore Rural District worth more than
Rs.33,60,00,000/-.
2. The contention of the petitioner is that he has not
withheld any material information either in his affidavit or in
Form No.26. The properties purchased by him under various
sale deeds were purchased by him for and on behalf of the firm
by name P.C. Realty. In this regard, he has entered into a
Partnership Deed dated 30.03.2013. It is registered in
accordance with the provisions of the Indian Partnership Act,
1932 (hereinafter referred to as "Act" for brevity). On
07.07.2014, he executed a "Confirmation and Reconstitution
Deed to the Partnership Agreement dated 30.03.2013"
(hereinafter referred to as "Confirmation and Reconstitution
Deed" for short) and all the six items of immovable properties
purchased by him under registered sale deeds dated 27.12.2013
were brought into the Partnership Firm as the capital contributed
by him. The relevant recitals in this regard read as under:-
"(1) It is expressly made clear that the
Schedule Property mentioned are registered in
the name of the first party is for and on behalf
of the Firm and as such the First Party
individually has no right over the Schedule
Property.
(2) However, in order to dispel any doubts and
to bring clarity it is hereby agreed that the First
Party herein has contributed the Schedule
Property which was held by him for and on
behalf of the partnership firm to the firm as his
capital once again by this deed of confirmation
and reconstitution."
3. Based on the above recitals and the terms of
Confirmation Deed dated 07.07.2014, learned counsel appearing
for petitioner emphatically submitted that the properties in
question were brought into hotchpotch as the capital of the
petitioner and as a result, petitioner had only interest in the
partnership assets of the firm which has been clearly mentioned
in the respective declarations submitted by the petitioner before
the Returning Officer in Form No.26. Learned counsel referred
to Annexure-II of the Form No.26 dated 26.03.2014 and the
same is extracted as hereinbelow:-
Sl. Description of the Self-P.C. Spouse Dependent-1 Dependent-2 PC
No. Investments Mohan Mrs. Shyla Ms Rithika Mr. Rithin Mohan
Mohan HUF
Shares in Private
Companies
1 Celebrations Software 50,000 50,000 Nil Nil Nil
Pvt Ltd.
(5000 shares of Rs.10
each)
2 G M C Bank (160 shares 4,000 Nil Nil Nil Nil
of Rs. 25 each)
3 Sudhashree Tech Park Nil 2,60,000 Nil Nil Nil
Pvt. Ltd.
(26,000 shares of Rs. 10
each)
Other Investments
1 P C Realty (Partnership 14,65,04,955 Nil Nil Nil Nil
Firm)
2 Vishaka Real Estate and 12,89,248 Nil Nil Nil Nil
Builders (Partnership
Firm)
Total 14,78,48,203 3,10,000 Nil Nil Nil
Likewise, in Form No.26 submitted by him on 22.03.2019, in the
liability column, he has declared as under:-
Sl.No. Description Self Mr. P.C. Mohan Spouse- Mrs. Shyla HUF- P C
Mohan Mohan
HUF
1 Loan or dues to Bank/ Financial
Institution(s)
Name of the Bank or Financial 1. Overdraft loan from Kotak 1. Housing Loan from
Institution, Amount outstanding, Mahindra Bank, Amount Bank of Baroda-Joint Nil
Nature of Loan Outstanding Rs. Loan with Mr. P.C.
1,92,63,355/- Mohan Outstanding
Rs. 46,32,375/-
2. Housing Loan from Bank
of Baroda-Joint Loan with 2. Loan against Property
Shyla Mohan Outstanding with Kotak Mahindra
Rs. 46,32,375/- Bank-Joint Loan with Mr.
P.C.Mohan Outstanding
Rs. 5,98,84,729/-
3. Loan against Property
with Kotak Mahindra Bank-
Joint loan with Shyla Mohan
Outstanding Rs.5,98,84,729/-
Loan or dues to any other Loans:
Individuals/entity other than
mentioned above. 1. P.C.Mohan HUF, Rs.
Name(s), Amount outstanding, 26,82,969.
nature of loan Nature: Personal Loan Nil Nil
2. Shyla Mohan
Rs.5,21,57,681,
Nature: Personal Loan
Any other liability
Sundry Creditors Rs. 30,74,314/- Nil Nil
Other Current Liabilities Rs. 5,18,778/- Nil Nil
Rental Deposit Received Rs.84,95,168 Rs.84,95,168/- Nil
P C Realty Rs.12,63,340/- Rs. 8,75,36,976/- Nil
Grand Total of Liabilities Rs. 15, 19, 72,709/- Rs. 16,05,49,248/- Nil
4. Thus, it is contended that the petitioner has not
suppressed any vital information relating to the assets held by
him nor has he sworn to any false affidavit attracting the
ingredients of the offence under sections 171G, 177, 181, 191,
193, 199, 200 of IPC and therefore, initiation of criminal action
against the petitioner based on the complaint filed by the
respondent No.2 and the reference made by the learned Special
Judge under section 156(3) of Cr.P.C. is wholly illegal and has
resulted in gross abuse of process of justice.
5. Assailing the legality of the order passed by learned
Special Judge under section 156(3) of Cr.P.C., learned counsel
for petitioner vehemently submitted that all the offences alleged
against the petitioner are non-cognizable in nature and therefore
learned Special Judge had no jurisdiction to take cognizance of
the said offences or to refer the complaint for investigation under
Section 156(3) Cr.P.C. in view of the bar contained in section
155(2) of Code of Criminal Procedure which mandates that, "No
police officer shall investigate a non-cognizable case without the
order of a Magistrate having power to try such case or commit
the case for trial."
6. Further, placing reliance on the decision of this Court
in W.P.No.108175/2014 dated 27.11.2015, learned counsel
pointed out that, by virtue of the prohibition contained under
section 195 Cr.P.C., the Special Court could not have taken
cognizance of any of the offences. On the same point, learned
counsel referred to para 13 of the decision in MAKSUD SAIYED
vs. STATE OF GUJARAT & Others, (2008) 5 SCC 668, wherein it
is held as under:-
13. Where a jurisdiction is exercised on a
complaint petition filed in terms of Section
156(3) or Section 200 of the Code of Criminal
Procedure, the Magistrate is required to apply
his mind. The Penal Code does not contain any
provision for attaching vicarious liability on the
part of the Managing Director or the Directors of
the Company when the accused is the
Company. The learned Magistrate failed to pose
unto himself the correct question viz. as to
whether the complaint petition, even if given
face value and taken to be correct in its
entirety, would lead to the conclusion that the
respondents herein were personally liable for
any offence. The Bank is a body corporate.
Vicarious liability of the Managing Director and
Director would arise provided any provision
exists in that behalf in the statute. Statutes
indisputably must contain provision fixing such
vicarious liabilities. Even for the said purpose, it
is obligatory on the part of the complainant to
make requisite allegations which would attract
the provisions constituting vicarious liability.
7. On the question whether the Magistrate or the
Special Judge has any discretion to call for a report under
section 202 Cr.P.C., instead of directing investigation under
section 156(3) of Cr.P.C., learned counsel for petitioner has
placed reliance on the decision in RAMDEV FOOD PRODUCTS
PRIVATE LTD. vs STATE OF GUJARAT, (2015) 6 SCC 439, with
reference to para 11, wherein it is held that,
"11. ... The Magistrate has discretion either to
direct registration of a case under Section
156(3) or to conduct inquiry himself as the
situation may warrant. This discretion is to be
exercised by the Magistrate in his wisdom and
having regard to the nature of material
available. The direction under Section 156(3) to
register a criminal case and to investigate is to
be exercised where the Magistrate is satisfied
that prima facie a cognizable offence has been
committed. On the contrary, where he thinks it
necessary to conduct further inquiry before
deciding whether he should proceed further in
the matter, the matter has to be dealt with
under Section 202. Mere allegation of forgery is
not enough to require the Magistrate to pass the
order under Section 156(3)."
8. Questioning the locus standi of the respondents to
initiate criminal action against the petitioner, learned counsel
referred to the decision of this Court in Criminal Petition
No.5959/2018 and connected matters disposed of on
03.10.2018 wherein the respondent No.2 being one of the
accused sought for bail in a case registered against him in Crime
No.34/2018 for the offences punishable under sections 505(3),
380, 389, 120B, 384, 420, 408 read with 34 of IPC and pointed
out that in the said order, this Court admitted the respondent
No.2 to bail, subject to the condition that he should not interfere
and indulge in the activities of the Mutt in any manner. Under
the said circumstances, respondent No.2 having been restrained
by the court to interfere with the properties of the Mutt, learned
Special Judge ought to have dismissed the complaint at the
threshold rather than referring the same for investigation under
section 156(3) of Cr.P.C. Thus, learned counsel for petitioner
sought to set-aside the impugned order and quash the
proceedings initiated against the petitioner.
9. Learned SPP-II Sri.V.S.Hegde appearing for
respondent No.1 though did not file any statement of objections
on behalf of Respondent No.1 yet, in the course of arguments
submitted that all the offences alleged against the petitioner
being non-cognizable offences, reference made by the Special
Court under Section 156(3) is legally not tenable.
10. Learned counsel for respondent No.2 however
seriously disputed the contentions urged by the learned counsel
for petitioner and the learned SPP II, and by referring to the
various sale-deeds executed in favour of the petitioner, pointed
out that in all the six sale-deeds he has been described in his
individual capacity as the sole purchaser. By virtue of section 19
of the Indian Partnership Act, 1932, unless custom and usage
permit, the petitioner cannot enter into any transaction on behalf
of the Firm. As per section 22 of the Indian Partnership Act,
1932, the instrument executed in favour of the petitioner cannot
bind the Firm. No documents are shown or produced by the
petitioner to show that the properties were purchased by him for
and on behalf of the Firm. In the absence of a registered
document, the properties purchased by the petitioner in his
individual name cannot be transferred to the firm. As per
section 75A of Representation of People Act, 1951, the petitioner
is required to disclose all the properties in his possession,
including agricultural and non-agricultural properties. But, in the
declaration submitted by him, in the relevant columns meant for
the details of non-agricultural properties are mentioned as "Nil"
eventhough all the properties purchased by the petitioner were
non-agricultural properties. It is the submission of learned
counsel for respondent No.2 that the petitioner is now taking
advantage of the recitals contained in the sale-deeds but these
recitals do not absolve the petitioner from disclosing the assets
and the properties held by him, be it in the name of the Firm or
in his individual name. He further submitted that the documents
produced along with the complaint clearly disclose that the
information which was required to be furnished by the petitioner
has been deliberately suppressed rendering the petitioner liable
for prosecution for the above offences and thus sought for
dismissal of the petition.
11. In the light of the contentions urged by the parties,
the following questions arise for consideration:-
1) Whether the order of reference made by learned
Special Judge under section 156(3) Cr.P.C. is bad
in law for non-compliance of requirements of
section 155(2) of Cr.P.C.?
2) Whether the facts alleged in the complaint prima-
facie disclose the ingredients of the offences
alleged against the petitioner?
Reg: POINT No.1:
12. The order of reference dated 08.11.2019 made by
the Special Court reads as under:-
"Complainant is present.
It is submitted to refer this complaint for
investigation to DCP, South.
Heard. In view of the fair submission, this
complaint is referred u/s. 156(3) of Cr.P.C.
to DCP, South for investigation and report.
Await report from DCP, South by 21.12.2019.
Sd/-
LXXXI A.C.C. & S.J. (CCH-82)
(Special Court exclusively to deal
with Criminal Cases related to elected
MPs/MLAs in the State of Karnataka)"
13. Undisputedly, all the offences alleged against the
petitioner are non-cognisable offences.
14. Law is now well settled that before directing the police
to investigate under sub-section (3) of section 156 Cr.P.C., the
Magistrate/Court should form an opinion that the complaint
discloses a cognizable offence. When the allegation made in the
complaint does not disclose cognizable offence, the
magistrate/court has no jurisdiction to order police investigation
under sub-section (3) of section 156 Cr.P.C.
15. In the present case, the learned Special Judge
without applying his mind has directed investigation by the
police. Such an order is clearly an order without jurisdiction.
Therefore, to that extent, the order passed by the Special Court
directing the police to investigate under sub-section (3) of
section 156 Cr.P.C. is liable to be quashed.
16. The allegations made in the complaint and the
documents produced in support thereof prima-facie disclose the
ingredients of sections 171G, 191, 193, 199 and 200 IPC. This
material is sufficient to proceed against the petitioner for the
above offences. In the said circumstances, the proper course
available for learned Special Judge was to take cognizance of the
alleged offences by himself under section 190 Cr.P.C. and
thereafter proceed in accordance with section 200 to 204 Cr.P.C.
In this regard, it may be useful to refer to the law expounded by
the Hon'ble Apex Court in the case of SUNIL BHARTI MITTAL
v. CENTRAL BUREAU OF INVESTIGATION, (2015) 4 SCC
609, wherein in paras 47, 48 and 51, it is held as under:-
"47. We have already mentioned above that even
if the CBI did not implicate the appellants, if there was/is
sufficient material on record to proceed against these
persons as well, the Special Judge is duly empowered to
take cognizance against these persons as well.
Under Section 190 of the Code, any Magistrate of First
Class (and in those cases where Magistrate of the Second
Class is specially empowered to do so) may take
cognizance of any offence under the following three
eventualities:
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts; and
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
This Section which is the starting section of Chapter
XIV is subject to the provisions of the said Chapter. The
expression "taking cognizance" has not been defined in
the Code. However, when the Magistrate applies his mind
for proceeding under Sections 200-203 of the Code, he is
said to have taken cognizance of an offence. This legal
position is explained by this Court in Chief Enforcement
Officer v. Videocon International Ltd [(2008) 2 SCC 492]
in the following words: (SCC p.499, para 19)
"19. The expression 'cognizance' has not
been defined in the Code. But the word
(cognizance) is of indefinite import. It has no
esoteric or mystic significance in criminal law. It
merely means 'become aware of' and when used
with reference to a court or a Judge, it connoted
'to take notice of judicially'. It indicates the point
when a court or a Magistrate takes judicial notice
of an offence with a view to initiating proceedings
in respect of such offence said to have been
committed by someone.
20. 'Taking Cognizance' does not involve
any formal action of any kind. It occurs as soon as
a Magistrate applies his mind to the suspected
commission of an offence."
48. Sine qua non for taking cognizance of the
offence is the application of mind by the Magistrate and
his satisfaction that the allegations, if proved, would
constitute an offence. It is, therefore, imperative that on a
complaint or on a police report, the Magistrate is bound to
consider the question as to whether the same discloses
commission of an offence and is required to form such an
opinion in this respect. When he does so and decides to
issue process, he shall be said to have taken cognizance.
At the stage of taking cognizance, the only consideration
before the court remains to consider judiciously whether
the material on which the prosecution proposes to
prosecute the accused brings out a prima facie case or
not.
xxx
xxx
51. On the other hand, Section 204 of the Code
deals with the issue of process, if in the opinion of the
Magistrate taking cognizance of an offence, there is
sufficient ground for proceeding. This section relates to
commencement of a criminal proceeding. If the Magistrate
taking cognizance of a case (it may be the Magistrate
receiving the complaint or to whom it has been
transferred under Section 192), upon a consideration of
the materials before him (i.e., the complaint, examination
of the complainant and his witnesses if present, or report
of inquiry, if any), thinks that there is a prima facie case
for proceeding in respect of an offence, he shall issue
process against the accused."
(Underlining supplied)
17. In the light of this legal position, the learned Judge
ought to have taken cognisance of the alleged offences based on
the material produced before him rather than referring the
complaint for investigation under section 156(3) Cr.P.C. The
restrictions under section 155 are not applicable to the
Magistrate or the Court. The locus-standi of the complainant is
immaterial as long as no malafides or vindictiveness is disclosed
on the face of the record. Even otherwise, the indictment of the
complainant not to interfere with the activities of the Mutt has
nothing to do with the initiation of criminal action against the
petitioner for the avowed violation of law.
18. The contention urged by learned counsel for the
petitioner based on section 195 Cr.P.C., in my view, does not
preclude the learned Special Judge to proceed against the
petitioner for the above offences in accordance with sections 200
to 204 IPC. As per section 195 Cr.P.C., the Court is debarred
from taking cognizance of any offences punishable under
sections 172 to 188 except on the complaint in writing of the
public servant concerned or of any offence punishable under
sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both
inclusive) and 228 only, when such offence is alleged to have
been committed in, or in relation to, any proceeding in any
Court.
19. In the instant case, the offences alleged against the
petitioner do not relate to any proceedings conducted before the
Civil Court, Criminal Court or a tribunal; as such, the bar
prescribed under section 195 Cr.P.C. is not applicable to the
facts of the case. On the other hand, the allegations made in the
complaint and the documents produced in support thereof clearly
go to show that the petitioner has made a false statement in
connection with an election and has concealed the necessary
information which he was legally bound to furnish to the election
officer, thus, prima-facie making out the ingredients of section
171G and 177 of IPC. These statements having been made by
the petitioner on oath or affirmation to a public servant, the
ingredient of section 181 of IPC are also attracted. Likewise, the
petitioner having caused the circumstances to exist, intending
that such false statement may appear in the proceedings taken
before a public servant, even the ingredients of section 191 IPC
punishable under section 193 IPC and sections 199 and 200 IPC
are prima-facie made out.
20. The argument of learned counsel for the petitioner
that the petitioner has not withheld any material information in
his affidavit and that the information divulged by him is true and
the same does not amount to concealment of information or
furnishing false information to public servant is concerned,
suffice it to note that the petitioner himself has admitted the fact
that much before filing the nomination papers and swearing to
an affidavit in terms of Rule 4 of the Conduct of Election Rules,
1961, he had purchased six items of properties under six
different sale deeds for a total consideration of
Rs.33,66,00,000/-. Undisputedly, these purchases were made by
the petitioner on 30.03.2013. Form No.26 was filed by him at
the first instance on 26.03.2014 (Annexure-'E') and as on that
day, all these properties were standing in his name as the sole
purchaser thereof. No-doubt, it is true that in the respective sale
deeds, it is recited that the petitioner herein was a partner of the
firm "P C Realty" and the sale deeds were being executed in the
name of purchaser in the capacity as partner of the said firm for
and on behalf of the said firm. Nonetheless, the fact remains that
the entire consideration was paid by the petitioner in his name. It is
not the case of the petitioner that the consideration for purchase of
the said properties were paid out of the funds of the firm. Deed
of Confirmation and Reconstitution was entered into by the
petitioner alongwith his wife as the other partner of the Firm 'P C
Realty' only on 07.07.2014 subsequent to filing of the first
affidavit on 26.03.2014(Annexure-E). Even in this Deed of
Confirmation and Reconstitution, it is clearly stated that all the
six items of the properties purchased by the petitioner were
brought into hotchpotch as the capital contributed by the
petitioner. As a result, the right and title of the petitioner in the
above properties remained with the petitioner as on the date of
submitting the nomination on 26.03.2014. Even as on the date
of filing Form No.26 on 22.03.2019, the petitioner was holding
75% interest in the Firm. It is trite law that Firm name is only a
compendious name given to the partnership and the partners are
the real owners of assets. Partnership Firm is not a legal entity
like a company. The partnership property belongs to all the
partners constituting the firm. In the Deed of Confirmation and
Reconstitution entered into by the petitioner and his wife dated
30.03.2013(Annexure-D), it is clearly recited that net profit or
loss in each financial year shall be divided among the partners as
follows:-
Sl.No. Particulars Amount
(Rs.)
1. Party of the First Part 75%
2. Party of the Second Part 25%
TOTAL 100%
21. Thus, even going by the recitals of the partnership
deed, it is seen that as on the date of filing the affidavits and
making declaration in Form No.26, the petitioner was holding
75% share out of the total assets of Rs.33,60,00,000/-; but in
Form No.26 submitted by him on 26.03.2014(Annexure-E), he
has furnished the details of investment in P C Realty (Partnership
Firm) amounting to Rs.14,65,04,955/-. The shares held by his
spouse do not find place therein. Thus, there is clear case of
concealment and suppression of material facts attracting the
ingredients of the offences alleged against the petitioner. Worse
still, in the Form No.26 filed by him on 20.03.2019(Annexure-F),
he has declared his liability in P C Realty as Rs.12,63,340/- and
the liability of his wife at Rs.8,75,36,976/-. Even though the
petitioner has contended that he has not withheld any material
information either in his affidavit or in Form No.26, no material
is produced before the Court justifying the figures shown in
Sl.No.8 of Form No.26(Annexure-F). The averments made by the
petitioner in the petition as well the documents produced by him
clearly point out that as on the date of filing of Form No.26, the
petitioner was holding assets in his name to the tune of
Rs.25,24,50,000/- as partner of P C Realty. Under the said
circumstances, there being prima-facie material to proceed
against the petitioner for the alleged offences, I do not find any
justifiable ground to quash the proceedings initiated against the
petitioner.
22. Law is now well settled that the inherent powers under
section 482 of Cr.P.C. can be exercised to give effect to an order
under the Code to prevent abuse of process of the court or to
otherwise secure the ends of justice. Though the petitioner has
also invoked Article 226 and 227 of the Constitution of India, the
reliefs claimed in the petition fell within the ambit of section 482
Cr.P.C and the inherent powers under this section cannot be
exercised to stifle a legitimate prosecution. The High Court
should normally refrain from giving a prima facie decision in a
case where all the facts are incomplete and hazy; more so, when
the evidence has not been collected and produced before the
Court and the issues involved, whether factual or legal, are of
such magnitude that they cannot be seen in their true
perspective without full material.
23. In RISHIPAL SINGH v. STATE OF UTTAR PRADESH AND
ANOTHER, (2014) 7 SCC 215, it is held by the Hon'ble Apex
Court as under:-
"What emerges from the above judgments is
that when a prosecution at the initial stage is
asked to be quashed, the tests to be applied by
the Court is as to whether the uncontroverted
allegations as made in the complaint prima facie
establish the case. The Courts have to see
whether the continuation of the complaint
amounts to abuse of process of law and whether
continuation of the criminal proceeding results in
miscarriage of justice or when the Court comes to
a conclusion that quashing these proceedings
would otherwise serve the ends of justice, then
the Court can exercise the power under Section
482 Cr.P.C. While exercising the power under the
provision, the Courts have to only look at the
uncontroverted allegation in the complaint
whether prima facie discloses an offence or not,
but it should not convert itself to that of a trial
Court and dwell into the disputed questions of
fact."
In the light of the above discussion, the petition is
allowed-in-part. The impugned order 08.11.2019 passed by
learned LXXXI Additional City Civil and Sessions Judge at
Bangalore (Special court exclusively to deal with criminal cases
related to elected MPs/MLAs in the State of Karnataka) in PCR
No.46/2019(Annexure-H) is modified and the Special Judge is
directed to take cognisance of the alleged offences under section
190 Cr.P.C. and thereafter proceed in accordance with sections
200 to 204 of Cr.P.C.
Sd/-
JUDGE
Bss/mn/-
