Sri. Dastgir Mohammed Hussain ... vs The Superintendent Of Police
2022 Latest Caselaw 3204 Kant

          IN THE HIGH COURT OF KARNATAKA,
                   DHARWAD BENCH

        DATED THIS THE 24TH DAY OF FEBRUARY 2022

                         PRESENT

         THE HON'BLE MR. JUSTICE S.G. PANDIT

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              WRIT APPEAL NO.100538/2017
               C/w. W.A.No.100544/2017

IN WRIT APPEAL NO. 100538/2017

BETWEEN:

SHARANAPPA
S/O. MALLIKARJUNAPPA MUCHANDI
AGED 60 YEARS, OCC. DEPUTY
SUPERINTENDENT OF POLICE (CRIME)
NORTH RANGE OFFICE,
BELAGAVI, TQ. AND DIST. BELAGAVI
NOW WORKING AT CID OFFICE,
DHARWAD TQ. AND DIST. DHARWAD.

                                            ..APPELLANT
(BY SRI. NANDISH PATIL, ADVOCATE)

AND:


1.     THE SUPERINTENDENT OF POLICE
       BELAGAVI DISTRICT, BELAGAVI.

2.     THE POLICE SUB INSPECTOR
       APMC, POLICE STATION
       BELAGAVI, TQ. AND DIST. BELAGAVI.
                             2



3.     FARUQ MOHAMMAD CHUS
       AGED: 33 YEARS, OCC. SERVICE
       R/O. CTS NO.5058/2015
       DPEPB BEHIND KANNADA SCHOOL
       2ND STAGE, HANUMAN NAGAR
       BELAGAVI, TQ. AND DIST. BELAGAVI
       PRESENTLY WORKING AS ELECTRICIAN
       AS RIYAD (SOUDI ARABIYA)

                                           ...RESPONDENTS

(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE FOR R1 & R2
SRI. K.L. PATIL, ADVOCATE FOR R3)

       THIS APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA
HIGH COURT ACT, 1961 PRAYING THIS HON'BLE COURT TO SET
ASIDE THE ORDER DATED 08.06.2017 PASSED IN WRIT
PETITION NO.102739/2016 (GM-RES) BY THE LEANRED SINGLE
JUDGE.


IN WRIT APPEAL NO. 100544/2017

BETWEEN:

SRI DASTGIR MOHAMMED HUSSAIN KHAJI
AGED: 62 YEARS, OCC: PSI (RETIRED)
R/O. CTS NO.5061 II STAGE
HANUMAN NAGAR DIST. BELAGAVI.
                                             ..APPELLANT

(BY SMT. ANURADHA DESHPANDE, ADVOCATE)

AND:


1.     THE SUPERINTENDENT OF POLICE
       BELAGAVI DISTRICT, BELAGAVI.

2.     THE POLICE SUB INSPECTOR
       APMC, POLICE STATION
       BELAGAVI, TQ. AND DIST. BELAGAVI.
                              3




3.     FARUQ MOHAMMAD CHUS
       AGED: 33 YEARS, OCC. SERVICE
       R/O. CTS NO.5058/2015
       DPEPB BEHIND KANNADA SCHOOL
       2ND STAGE, HANUMAN NAGAR
       BELAGAVI, TQ. AND DIST. BELAGAVI
       PRESENTLY WORKING AS ELECTRICIAN
       AS RIYAD (SOUDI ARABIYA)

                                            ...RESPONDENTS

(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE FOR R1
& R2;
SRI. K.L. PATIL, ADVOCATE FOR R3)


       THIS APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA
HIGH COURT ACT, 1961 PRAYING THIS HON'BLE COURT TO SET
ASIDE THE ORDER DATED 08.06.2017 PASSED IN WRIT
PETITION NO.103078/2016 (GM-RES) BY THE LEANRED SINGLE
JUDGE.


       THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY,     ANANT   RAMANATH        HEGDE.,   DELIVERED   THE
FOLLOWING:


                       JUDGEMENT

These writ appeals are arising out of the judgement

dated 08.06.2017 passed in Writ Petition No.102739/2016

C/w. W.P.No.103078/2016. Since these two appeals are

arising from the common judgement, both the appeals are

taken up together for hearing.

2. Heard Sri. Nandish Patil, learned counsel

appearing for appellant in W.A.No.100538/2017 and

Smt. Anuradha Deshpande, learned counsel appearing for

appellant in W.A.No.100544/2017 and Sri. G.K.

Hiregowdar, learned Government Advocate appearing for

respondents No.1 and 2 and Sri. K.L.Patil, learned counsel

appearing for respondent No.3 in the above said appeals.

3. Brief facts necessary for adjudication of the

case can be summarized as under :-

4. One Faruq Mohammad Chaus filed

W.P.No.108515/2015 with a prayer to quash Modus

Operandi Bureau (MOB) Card bearing No.DCRBMOB

No.2554. The said petition was allowed in terms of the

order dated 11.02.2016 with a direction to the police to

remove the name of the petitioner from MOB card within

six days from the date of receipt of certified copy of the

order. At the same time, the learned Single Judge passed

an order to initiate proceeding against two police officers

who are the appellants in this appeal. Admittedly, these

polices officers were not parties in the said proceeding.

Aggrieved by the reference made to them in the said order

where they are not parties, the present appellants filed

W.P.No.102739/2016 C/w. W.P.No.103078/2016

respectively with a prayer to quash the order dated

11.02.2016 passed in W.P.No.108515/2015.

5. The learned Single Judge declined to entertain

the writ petition on the premise that in the earlier

proceeding no adverse findings are given against the

present appellants. At the same time the learned Single

Judge took note of the fact that police have conducted

enquiry pursuant to the direction given in terms of the

order dated 11.02.2016 in W.P.No.108515/2015. The said

report submitted by the Superintended of police, Belagavi

gave clean chit to the present appellants. However, the

learned Single Judge found that investigation is not

objective and has set-aside the report on the ground that

proper investigation is not conducted. Having rejected the

report the learned Single Judge directed the jurisdictional

Magistrate to take up the complaint filed by Faruq

Mohammad Chaus which is marked at Annexure-C to the

Writ Petition No.108515/2015 and to proceed on the said

complaint in accordance with law. With these observations

writ petition No.102739/2016 C/w. W.P.No.103078/2016

are disposed off. Aggrieved by the said order present writ

appeals are filed by the appellants.

      6.    Sri.   Nandish   Patil     and   Smt.    Anuradha

Deshpande      learned counsel appearing for appellants

would submit that the learned Single Judge could not have

set-side the report dated 20.06.2016 submitted by the

Superintended of police, Belagavi. They would submit that

there is no challenge to the said report in the writ petition

and scope of the enquiry in the writ petition was to see

whether the learned Single Judge is justified in passing

remarks against the petitioners, though the petitioners

were not parties in W.P.No.108515/2015. Elaborating

their submission, they would contend that the learned

Single Judge could not have passed an order and setting-

aside investigation report when it was not challenged.

Accordingly, they prayed to allow the appeal.

7. Defending the order of the learned Single

Judge, Sri. K.L. Patil, learned counsel appearing for

respondent No.3 raised preliminary objection relating to

the maintainability of the appeal and he would submit that

the order in the appeal is passed in exercise the power

conferred under Section 482 of the Cr.P.C. and as such

appeal under Section 4 of the Karnataka High Court Act is

not maintainable. The learned counsel for the respondent

No.3 would urge that impugned order is not passed in

exercise of original jurisdiction and same is passed in

exercise of the supervisory jurisdiction and prayed for

dismissal of the appeal.

8. The learned counsel would place reliance on

the judgment of the Hon'ble Apex Court in the case of

Ram Kishan Fauji V/s. State of Haryana and Others

reported in (2017) 5 SCC 533.

9. Alternatively Sri. K.L. Patil, learned counsel

appearing for respondent No.3 would submit that

assuming that appeal is maintainable then the appeal is

liable to be dismissed as order passed by the learned

Single Judge is in accordance with law and he has only

directed the jurisdictional Magistrate to proceed against

the present appellants pursuant to the complaint lodged

against them.

10. This Court has carefully considered the

contentions raised at the Bar and also referred to the

judgment cited supra. There is no dispute over the

proposition of law, that appeal under Section 4 of the

Karnataka High Court Act is maintainable only in respect of

the order passed in the exercise of the original jurisdiction.

The appeal is not maintainable in the event of the order

passed in the exercise of the jurisdiction under Section 482

of Cr.p.C. This Court has perused the writ petition filed by

the appellants and the order passed by the learned Single

judge. It is apparent that the petitioners have invoked

Article 226 of the Constitution of India before the learned

Single Judge and even the learned Single Judge while

passing the order has exercised the jurisdiction under

Article 226 of the Constitution of India and impugned order

would not indicate that the jurisdiction under Section 482

of Cr.P.C. is exercised by the learned Single Judge while

passing the order. After going through order it is apparent

that the learned Single Judge has proceeded to set-aside

the investigation report which was not challenged before

the learned Single Judge. Such being facts this Court is of

the opinion that writ appeal is maintainable and contention

of the respondent No.3 is not accepted.

11. The judgment of the Hon'ble Apex Court

referred above, does not come to the aid of the respondent

to hold that appeal is not maintainable as a ratio in the

said judgement does not say that writ appeal is not

maintainable under Section 4 of the Karnataka High Court

Act if the order is passed in exercise of the original

jurisdiction.

12. On going through impugned order passed in

writ petition it is noticed that in the previous proceeding

i.e., W.P.No.108515/2015 present appellants were not

party. However, in the order dated 11.02.2016 in the said

proceeding direction is issued to conduct an investigation

against them by referring their names. Pursuant to the

said direction, Superintendent of Police, Belagavi

investigated the matter and gave clean chit to the present

appellants. The writ petition was filed by the present

appellants on the premise that order dated 11.02.2016 is

passed by making some observations against them, even

though they were not parties to the said proceeding when

the writ petition came up for hearing, it was brought to the

notice of this Court that investigating officer after

completing the investigation has given clean chit to the

petitioners. However, the learned Single Judge rejected

the said report, though the said report was not challenged

by the complainant on whose complaint the investigation

was conducted. Under these circumstances, this Court is

of the opinion that the report could not have been set-

aside when the correctness of the report was not being

examined by the Court.

13. Under these circumstances, order of the

learned Single Judge impugned in the writ appeal is not

sustainable and impugned order is set-aside by allowing

the appeal. However it is made clear that respondent No.3

if aggrieved by the investigation report dated: 20.06.2016

submitted by the Superintended of Police, Belagavi is at

liberty to question the same in the manner provided under

law. Hence, following :-

ORDER

Writ appeal is allowed, consequently impugned

order dated 08.06.2017 passed in Writ petition

No.102739/2016 is set-aside.

If the respondent No.3 to initiate any action to

question the investigation report dated 20.06.2016 filed by

the Superintended of Police, Belagavi same shall be

considered on its merits in accordance with law without

being influenced by the observations made in this appeal

as this Court has not examined the correctness of the

investigation report dated 20.06.2016.

Pending applications, if any, do not survive for

consideration and accordingly, they are disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

hd