Karnataka High Court

Ramesh Chavan S/O Narayana Rao vs The State Of Karnataka on 8 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 8TH DAY OF FEBRUARY 2022

                           BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA


               CRIMINAL PETITION NO.101200/2020


BETWEEN:

1.   RAMESH S/O NARAYAN CHAVAN
     AGE. MAJOR, OCC. EMPLOYEE,
     R/O. RANEBENNUR,
     TQ. RANEBENNUR, DIST.HAVERI

2.   SMT.PARVATHI G. ARALIKATTI
     AGE. MAJOR, OCC. EMPLOYEE,
     R.O. RANEBENNUR,
     TQ. RANEBENNUR, DIST. HAVERI

                                                ...PETITIONERS.

(BY SHRI PRUTHVI K S, ADVOCATE.)


AND:

1.   THE STATE OF KARNATAKA
     RPTD BY ITS
     STATE PUBLIC PROSECUTOR,
     THROUGH RANEBENNUR TOWN
     POLICE STATION,
     HIGH COURT OF KARNATAKA,
     DHARWAD BENCH, DHARWAD 580001

2.   SHIVAPUTRAPPA
     S/O DYAMAPPA MALLADAD
     AGE: 35 YEARS, OCC: AGRICULTURE,
                                2




    R/O: KUSAGUR, RANEBENNUR,
    TQ: RANEBENNUR, DIST: HAVERI.

                                                   ...RESPONDENTS.

(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1;
R.2 - NOTICE SERVED.)


      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
COMPLAINT AND FIR DATED 11/08/2020, IN RANEBENNUR TOWN
P.S. CRIME NO.123/2020 AGAINST THE PETITIONERS/ACCUSED
NOS.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER SECTION 363,
465, 468, 471, 494 AND SECTION 34 OF THE INDIAN PENAL CODE,
1860, BY ALLOWING THIS PETITION, ETC.,.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:


                            ORDER

The petitioners are before this Court calling in question

the proceedings in Crime No.123/2020, pending on the file of II

Addl. Senior Civil Judge and JMFC, Ranebennur, registered for

offences punishable under Sections 363, 465, 468, 471, 494

read with Section 34 of the Indian Penal Code, 1860.

2. Heard Shri Pruthvi K.S., the learned counsel

appearing for the petitioners and Shri Ramesh Chigari, the

learned HCGP appearing for the respondent no.1 State.

3. Brief facts leading to the filing of the present

petition as borne out from the pleadings are as follows:

Petitioners no.1 and 2 who are accused nos.1 and 2 in the

aforesaid crime are working as First Division Assistant and Staff

Nurse in the Government Hospital at Ranebennur. A complaint is

registered on 11.8.2020 alleging that the petitioners had

kidnapped a girl and claim that the girl was born to them by

creating false documents. It is further alleged in the complaint

that the first petitioner who was working as First Division

Assistant has married petitioner No.2, a Staff Nurse, during the

time when the first wife of the first petitioner is alive. It is

stated in the complaint that neither the first wife nor the second

petitioner who is the alleged second wife did not have any

children and the kidnapped baby girl from the hospital is said to

be their daughter.

4. On registration of the said complaint on such

cognizable offence, an FIR is registered against the petitioners

for the offences punishable under Sections 363, 465, 468, 471,

494 read with Section 34 of the Indian Penal Code, 1860.

Several other grave allegations are imputed against the

petitioners in the complaint.

5. Learned counsel appearing for the petitioners would

contend that the complaint is not by an aggrieved person. The

complaint is instituted with a mala fide intention as the

kidnapping of the girl and creating of documents with regard to

the girl being a daughter are all 15 years old and would contend

that the proceedings should be quashed as it would amount to

abuse of the process of law.

6. I decline to accept the statement made by the

learned counsel appearing for the petitioners. It is not only the

allegation of kidnapping that is brought out in the complaint.

Allegation of forgery and fabrication of documents are also

contents in the complaint. It is for the petitioners to come out

clean in the trial as the matter is at the stage of investigation.

7. Since the allegations levelled are that of kidnapping,

forgery, fabrication of documents and bigamy against the

petitioners, these are serious disputed questions of fact. It is

trite law that if there has to be fishing of evidence in the

proceedings brought before the Court under Section 482 of the

Code of Criminal Procedure, 1973, such cases should not be

quashed and the trial should be permitted to be continued.

There are serious triable issues in the case at hand. The Apex

Court in the case of KAPTAN SINGH VS. STATE OF UTTAR

PRADESH reported in (2021) 9 SCC 35, holds as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered.

However, thereafter when the statements are recorded, evidence is collected and the charge-

sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

      9.2.   In    Dhruvaram      Murlidhar   Sonar
[Dhruvaram     Murlidhar    Sonar   v.    State  of

Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is

held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in

accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

The Apex Court while considering the power of exercise of

inherent jurisdiction under Section 482 of the Cr.P.C. holds that

if there are serious triable issues, the High Court under Section

482 of Cr.P.C. should exercise restraint.

8. The petitioners also have liberty to seek discharge

once the charge sheet is filed by the police. Therefore, in the

light of the grave facts in the complaint, the judgment of the

Apex Court in the case of KAPTAN SINGH and in the light of

the matter being at the stage of investigation, I decline to

entertain the criminal petition at this stage of the proceedings.

9. For the aforesaid reasons, the following:

ORDER