Karnataka High Court
Shri. Basavaraj S/O Kallappa ... vs The State Of Karnataka on 6 June, 2022
Bench: V.Srishananda
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IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 6TH DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL PETITION NO. 100613 OF 2021 (482-)
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CRIMINAL PETITION NO. 100615 OF 2021
CRIMINAL PETITION NO. 100617 OF 2021
CRIMINAL PETITION NO. 100618 OF 2021
CRIMINAL PETITION NO. 100619 OF 2021
CRIMINAL PETITION NO. 100620 OF 2021
IN CRL.PET. NO. 100613 OF 2021
BETWEEN:
SHRI. BASAVARAJ S/O KALLAPPA HOOLI
AGE 62 YEARS, OCC PENSIONER,
R/O H.NO.12, MRITHYINJAY NAGAR,
J.K. SCHOOL ROAD, HUBBALLI.
...PETITIONER
(BY SMT. SUMANGALA A.CHAKALABBI.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
CBI/ACB/BENGALURU,
REPRESENTED BY SPP,
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HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI. VINAYAK HEGDE, ADVOCATE
FOR SRI.VENKATESH KHARVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER DATED 10/06/2020 ON 227 OF
CR.P.C., APPLICATION PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE (SPL. JUDGE FOR CBI, KLA AND ACB CASES)
DHARWAD, IN CBI CC NO.4/2017 FOR OFFENCE U/S 120 B,
409,420,468,471 IPC AND SEC 13(1) (C) (D) R/W SEC 13(2) OF
P.A.ACT CONSEQUENTLY ALLOW THE APPLICATION U/SEC.227 OF
CR.P.C., FILED BY THE PETITIONER.
IN CRL.PET. NO.100615 /2021
BETWEEN
SHRI. BASAVARAJ S/O KALLAPPA HOOLI
AGE 62 YEARS, OCC PENSIONER,
R/O H.NO.12, MRITHYINJAY NAGAR,
J.K. SCHOOL ROAD, HUBBALLI.
...PETITIONER
(BY SMT. SUMANGALA A.CHAKALABBI, ADVOCATE)
AND
THE STATE OF KARNATAKA
CBI/ACB/BENGALURU,
REPRESENTED BY SPP,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI.VINAYAK HEGDE, ADVOCATE
FOR SRI. VENKATESH KHARVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER DATED 12/06/2020 ON 227 OF
CRPC APPLICATION PASSED BY THE III ADDL DISTRICT AND
SESSIONS JUDGE (SPL JUDGE FOR CBI KLA AND ACB CASES
DHARWAD IN CBI C.C.NO.5/2017 OFFENCE U/S 120 B,
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409,420,468,471 IPC AND SEC 13(1) (C) (D) R/W SEC 13(2) OF
P.A.ACTCONSEQUENTLY ALLOW THE APPLICATION U/SEC 227 OF
CRPC FILED BY THE PETITIONER.
IN CRL.PET. NO. 100617/2021
BETWEEN
SHRI. BASAVARAJ S/O KALLAPPA HOOLI
AGE 62 YEARS, OCC PENSIONER,
R/O H.NO.12, MRITHYINJAY NAGAR,
J.K. SCHOOL ROAD, HUBBALLI.
...PETITIONER
(BY SMT. SUMANGALA A.CHAKALABBI, ADVOCATE)
AND
THE STATE OF KARNATAKA
CBI/ACB/BENGALURU,
REPRESENTED BY SPP,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI.VINAYAK HEGDE, ADVOCATE
FOR SRI. VENKATESH KHARVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C
SEEKING TO SET ASIDE THE ORDER DATED 12.06.2020 ON 227 OF
CR.P.C. APPLICATION PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE (SPL JUDGE FOR CBI, KLA AND ACB CASES)
DHARWAD, IN CBI CC NO. 7/2017 CONSEQUENTLY ALLOW THE
APPLICATION U/SEC 227 OF CR.P.C. FILED BY THE PETITIONER.
IN CRL.PET. NO.100618/2021
BETWEEN
SHRI. BASAVARAJ S/O KALLAPPA HOOLI
AGE 62 YEARS, OCC PENSIONER,
R/O H.NO.12,
MRITHYINJAY NAGAR,
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J.K. SCHOOL ROAD, HUBBALLI.
...PETITIONER
(BY SMT.SUMANGALA A.CHAKALABBI, ADVOCATE)
AND
THE STATE OF KARNATAKA
CBI/ACB/BENGALURU,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SRI.VINAYAK HEGDE, ADVOCATE
FOR SRI. VENKATESH KHARVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 10.03.2020 ON 227 OF
CR.P.C. APPLICATION PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE (SPL JUDGE FOR CBI, KLA AND ACB CASES)
DHARWAD, IN CBI CC NO.06/2017 CONSEQUENTLY ALLOW THE
APPLICATION U/SEC. 227 OF CR.P.C. FILED BY THE PETITIONER /
A2.
IN CRL.PET. NO.100619/2021
BETWEEN
SHRI. BASAVARAJ S/O KALLAPPA HOOLI
AGE 62 YEARS, OCC PENSIONER,
R/O H.NO.12,
MRUTHUNJAY NAGAR,
J.K. SCHOOL ROAD, HUBBALLI.
...PETITIONER
(BY SMT. SUMANGALA A.CHAKALABBI, ADVOCATE)
AND
THE STATE OF KARNATAKA
CBI/ACB/BENGALURU,
REPRESENTED BY SPP,
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HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI.VINAYAK HEGDE, ADVOCATE
FOR SRI. VENKATESH KHARVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO SET ASIDE THE ORDER DATED 08/06/2020 ON 227 OF
CR.P.C., APPLICATION PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE (SPL. JUDGE FOR CBI, KLA AND ACB CASES)
DHARWAD, IN CBI CC NO.3/2017 CONSEQUENTLY ALLOW THE
APPLICATION U/SEC.227 OF CR.P.C., FILED BY THE PETITIONER.
IN CRL.PET. NO.100620/2021
BETWEEN
SHRI. BASAVARAJ S/O KALLAPPA HOOLI
AGE 62 YEARS, OCC PENSIONER,
R/O H.NO.12, MRITHYINJAY NAGAR,
J.K. SCHOOL ROAD, HUBBALLI.
...PETITIONER
(BY SMT.SUMANGALA A.CHAKALABBI, ADVOCATE)
AND
THE STATE OF KARNATAKA
CBI/ACB/BENGALURU, REPRESENTED BY SPP,
HIGH COURT BUILDING, DHARWAD.
...RESPONDENT
(BY SRI.VINAYAK HEGDE, ADVOCATE
FOR SRI. VENKATESH KHARVI, ADVOCATE)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 12.06.2020 ON 227 OF
CR.P.C. APPLICATION PASSED BY THE III ADDL. DISTRICT AND
SESSIONS JUDGE (SPL. JUDGE FOR CBI, KLA AND ACB CASED)
DHARWAD, IN CBI CC NO.9/2017 OFFENCE U/S 120 B, 409, 420,
468, 471 IPC AND SEC 13(1) (C) (D) R/W SEC 13(2) OF P.A.ACT
CONSEQUENTLY ALLOW THE APPLICATION U/SEC 227 OF CR.P.C.
FILED BY THE PETITIONER.
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THESE PETITIONS COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
1. Though these petitions are listed for admission,
with the consent of the parties, they are taken up for final
disposal.
2. These petitions are filed under Section 482 of
Cr.P.C. seeking for the following reliefs:
Criminal Prayer
Petition No.
To set aside the order dated 12/06/2020
100613/2021 on 227 of Cr.P.C. application passed by
the III Addl District and Sessions Judge
(Spl Judge for CBI KLA and ACB cases
Dharwad in CBI C.C.NO.4/2017 offence
U/s 120 B, 409, 420, 468, 471 of IPC
and Sec. 13(1) (c) (d) R/w Sec. 13(2) of
P.A. Act, consequently allow the
application U/sec 227 of Cr.P.C. filed by
the petitioner.
100615/2021 To set aside the order dated 12/06/2020
on 227 of Cr.P.C. application passed by
the III Addl District and Sessions Judge
(Spl Judge for CBI KLA and ACB cases
Dharwad in CBI C.C.NO.5/2017 offence
U/s 120 B, 409, 420, 468, 471 IPC and
Sec. 13(1) (c) (d) R/w Sec. 13(2) of P.A.
Act consequently allow the application
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U/sec 227 of Cr.P.C. filed by the
petitioner.
100617/2021 To set aside the order dated 12.06.2020
on 227 of Cr.P.C. application passed by
the III Addl. District and Sessions Judge
(Spl Judge for CBI, KLA and ACB cases)
Dharwad, in CBI CC NO. 7/2017
consequently allow the application U/sec
227 of Cr.P.C. filed by the petitioner.
100618/2021 To set aside the order dated 10.03.2020
on 227 of Cr.P.C. application passed by
the III Addl. District and Sessions Judge
(Spl Judge for CBI, KLA and ACB cases)
Dharwad, in CBI CC NO.06/2017
consequently allow the application
U/sec. 227 of Cr.P.C. filed by the
petitioner / A2.
100619/2021 To set aside the order dated 08/06/2020
on 227 of Cr.P.C., application passed by
the III Addl. District and Sessions Judge
(Spl. Judge for CBI, KLA and ACB cases)
Dharwad, in CBI CC NO.3/2017
consequently allow the application
U/sec.227 of Cr.P.C., filed by the
petitioner.
100620/2021 To set aside the order dated 12.06.2020
on 227 of Cr.P.C. application passed by
the III Addl. District and Sessions Judge
(Spl. Judge for CBI, KLA and ACB cased)
Dharwad, in CBI CC NO.9/2017 offence
U/s 120 B, 409, 420, 468, 471 IPC and
Sec. 13(1) (c) (d) R/w Sec. 13(2) of
P.A.Act consequently allow the
application U/sec 227 of Cr.P.C. filed by
the petitioner.
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3. Accused No.2 who is charge sheeted in CBI
C.C.Nos.4/2017, 5/2017, 7/2017, 6/2017, 3/2017 and
9/2017 is the petitioner in these cases.
4. Brief facts of the cases are as under:
4.1 CBI/ACB/BLR registered a case on definite
information in RC No.13(A)/2014 against Guruswamy at
the inception who was working as Divisional Manager, New
India Assurance Company. After so registering the case,
the CBI investigated the matter and unearthed the fraud
being played by the said Guruswamy in active collusion
with other persons. Present petitioner is the ASI, Sub-
urban Police Station, Hubballi who registered the FIR
against some persons in respect of fictitious complaints so
as to help the claimant to derive compensation on the
basis of the said fictitious complaint. On thorough
investigation, CBI filed charge sheet against the accused
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persons including the present petitioner Sri. Basavaraj K
Hooli.
4.2 After taking cognizance of the offence alleged
against the accused persons for the offence punishable
under Sections 120B read with 409, 420, 468 and 471 and
Section 13(1)(c) & (d) read with 13(2) of Prevention of
Corruption Act, 1988 (hereinafter referred to as 'P.C. Act'
for brevity), the learned Special Judge (CBI Court),
Dharwad issued summons. In pursuance of the said
summons, respondent No.2 appeared before the Court and
filed an application under Section 227 of Cr.P.C. seeking
discharge. The said application was objected by CBI by
filing written objections. Thereafter, learned Special Judge
heard the parties and dismissed the application filed by
respondent No.2 which is under challenge before this
Court.
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5. In Criminal Petition No.100613/2021, following
grounds have been raised. Similar grounds are also raised
in other petitions.
"1. That the courts below have failed to appreciate the case of
the defense, material on record and have come to an
erroneous finding of fact as well as law.
2. The court below has grossly erred in appreciating the
contentionofthepetitioner/accusedNo.2.
3. That the said statement of the injured is in the charge
sheet. Out of which at sheet no.4 there is a statement of
injured recorded on 08/03/2011 in Medical officer, Govt
Hospital Kundagol as medico legal by accused No.2 and the
first information report forwarded to the court by accused
no.2 on registration of case as MLC as state above is in the
very charge sheet. therefore accused No.2 while acting as a
station House Office on 08/03/2011 on receipt of offence
relating to cognizable offence, as per section 154 of CRPC
discharged his duty by registering the case of cognizable
offence punishable U/ sec 279 and 337 of IPC R/w section 187
of MV act in crime No. 32/2011 and forwarded the first
information report to the courtconcerned and handed over the
investigation to superior officer.
4. That the accused No.2 has not done anything in this case
other than registration of cognizable offence U/sec 154 of
Cr.P.C. and forwarding of FIR to the Court, while acting as
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station House Officer, that to as medical legal case. Therefore
accused No.2 has discharged his legal duty which he is bound
U/sec 154 of CRPC.
5. That the investigation officer in the charge sheet has clearly
admitted that FIR concerning the crime No.32/2011 registered
by this accused No.2 is not false. It is in the very Final Report
therefore allegation against accused No.2 for all the alleged
offences stated above are false and without any material link
evidence on record placed before this Hon'ble Court by the
investigation officer therefore, accused No.2 is to be
discharged from the alleged offences.
6. That allegation against accused No.2 implicating him with
other accused in respect of all alleged offences are without
any basis and only on presumptions and assumptions has
falsely implicated him without their being any ingredient of
offences. Therefore, this accused No.2 is to be discharged
from the alleged offences.
7. That the allegation in respect of offences punishable U/sec
13(2), 13(1)(c)(d) of PC Act 1988, also false and absolutely
there are no any material placed to constitute the offences
alleged against him so asto implicate, to connect with the
alleged offences in the entire charge sheet and material
placed before this Hon'ble court by the investigating officer.
Therefore accused No.2 has not at all committed any
misconduct as alleged in the charge sheet. Therefore accused
No.2 is to be discharged from all the alleged offences against
him in he charge sheet.
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8. Sanction order produced by investigating officer along with
charge sheet is not legal and valid, the sanctioning Authority
has not all looked into any of the materialas stated in his
Sanction order. The Sanctioning Authority has simply put his
signature on draft prepared by some other person, relating to
this sanction to prosecute accused No.2 it is apparent on
record and contrary to the list of charge sheet witnesses as
produced by investigating officer before this Hon'ble court and
one the charge sheet witness numbers which are mentioned
in the sanction order are different.
9. Further the Sanctioning has not looked into the matter
properly and further the sanctioning authority also has not at
all loked in to the FIR forwarded to the court in which there is
a mention of name of another person injured in the alleged
incident and also the sanctioning authority has not looked into
the statement of injured disclosing the name of another
person who sustained injury in the alleged accident, stated
before accused no.2 while recording in the medical officer,
govt. hospital kundagol as medico legal case. Therefore,
accordingly sanction to prosecute accused no.2 is totally
without application of mind by the sanctioning authority.
10. That the Sanctioning Authority has not at all cared to look
into provision u/sec 154 of Cr.P.C and the duties of station
House officer, therefore, without considering this aspect has
blindly accepted the version of CBI and to help CBI police
simply signed the Draft Sanction order prepared by the very
CBI or any other person without proper application of mind to
help the CBI Police.
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11. The petitioner craves the leaves of the court to urge more
grounds at the time of hearing and so also he craves to file
application seeking production of additional evidence."
6. Reiterating the above grounds, Smt.Sumangala
Chakalabbi, learned counsel for the petitioner vehemently
contended that the present petitioner was working as
Station House Officer and he was bound to register the
case when a complaint came to be lodged and it was
mandatory duty on the part of the petitioner to register
the case and that itself would not be sufficient to attribute
criminality in the day to day official work of the present
petitioner and thus, sought for allowing the petitions and
quash the further criminal proceedings against the
petitioner herein.
7. Per contra, Sri.Vinayak Hegde, learned counsel
representing Sri.Venkatesh Kharvi for the respondent
opposes the petitions on the ground that the petitioner is
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part of the larger conspiracy inasmuch as all the six cases
registered by him found out to be false cases and it could
not be a coincidence and therefore, sought for rejection of
the petitions.
8. In reply, Smt.Sumangala Chakalabbi contended
that out of several cases registered by the petitioner as
Station House Officer, only six cases have turned out to be
fake cases and therefore, the petitioner cannot be held
liable for the alleged criminal conspiracy. In this regard,
she relied on the judgement of the Hon'ble Apex Court
reported in (2006) 2 SCC 677 in the case of Ramesh
Kumari vs. State (NCT of Delhi) and Others. Relevant
portions of the said judgement are culled out hereunder
for easy reference:
"3. Mr. Vikas Singh, learned Additional Solicitor
General, at the outset, invites our attention to the counter-
affidavit filed by the respondent and submits that pursuant to
the aforesaid observation of the High Court the
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complaint/representation has been subsequently examined by
the respondent and found to genuine case was established.
We are not convinced by this submission because the sole
grievance of the appellant is that no case has been registered
in terms of the mandatory provisions of Section 154(1) of the
Criminal Procedure Code. Genuineness or otherwise of the
information can only be considered after registration of the
case. Genuineness or credibility of the information is not a
condition precedent for registration of a case. We are also
clearly of the view that the High Court erred in law in
dismissing the petition solely on the ground that the contempt
petition was pending and the appellant had an alternative
remedy. The ground of alternative remedy nor pending of the
contempt petition would be no substitute in law not to register
a case when a citizen makes a complaint of a cognizable
offence against the Police Officer.
4. That the Police Officer mandatorily registers a case
on a complaint of a cognizable offence by the citizen under
Section 154 of the Code are no more res integra. The point of
law has been set at rest by this Court in the case of State of
Haryana and Ors. v. Bhajan Lal and Ors., [1992] Supp. 1 SCC
335. This Court after examining the whole gamut and
intricacies of the mandatory nature of Section 154 of the Code
has arrived at the finding in paras 31 and 32 of the judgment
as under:
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"31. At the stage of registration of a crime or a case on
the basis of the information disclosing a cognizable offence in
compliance with the mandate of Section 154(1) of the Code,
the concerned police officer cannot embark upon an enquiry
as to whether the information, laid by the informant is reliable
and genuine or otherwise and refuse to register a case on the
ground that the information is not reliable or credible. On the
other hand, the officer in charge of a police station is
statutorily obliged to register a case and then to proceed with
the investigation if he has reason to suspect the commission
of an offence which he is empowered under Section 156 of the
Code to investigate, subject to the proviso to Section 157. (As
we have proposed to make a detailed discussion about the
power of a police officer in the field of investigation of a
cognizable offence within the ambit of Sections 156 and 157
of the Code in the ensuing part of this judgment, we do not
propose to deal with those sections in extenso in the present
context). In case, an officer in charge of a police station
refuses to exercise the jurisdiction vested in him and to
register a case on the information of a cognizable offence
reported and thereby violates the statutory duty cast upon
him, the person aggrieved by such refusal can send the
substance of the information in writing and by post to the
Superintendent of Police concerned who is satisfied that the
information forwarded to him discloses a colonizable offence,
should either investigate the case himself or direct an
investigation to be made by any police officer subordinate to
him in the manner provided by sub-section (3) of Section 154
of the Code.''
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"32. Be it noted that in Section 154(1) of the Code, the
legislature in its collective wisdom has carefully and cautiously
used the expression ``information'' without qualifying the
same as in Section 41(1)(a) or (g) of the Code wherein the
expressions, ``reasonable complaint'' and ``credible
information'' are used. Evidently, the non-qualification of the
word ``information'' in Section 154(1) unlike in Section
41(1)(a) and (g) of the Code may be for the reason that the
police officer should not refuse to record an information
relating to the commission of a cognizable offence and to
register a case thereon on the ground that he is not satisfied
with the reasonableness or credibility of the information. In
other words, `reasonableness' or `credibility' of the said
information is not a condition precedent for registration of a
case. A comparison of the present Section 154 with those of
the earlier Codes will indicate that the legislature had
purposely thought it fit to employ only the word
``information'' without qualifying the said word. Section 139
of the Code of Criminal Procedure of 1861 (Act 25 of 1861)
passed by the Legislative Council of India read that `every
complaint or information' preferred to an officer in charge of a
police station should be reduced into writing which provision
was subsequently modified by Section 112 of the Code of
1872 (Act 10 of 1872) which thereafter read that `every
complaint' preferred to an officer in charge of a police station
shall be reduced in writing. The word `complaint' which
occurred in previous two Codes of 1861 and 1872 was deleted
and in that place the word `information' was used in the
Codes of 1882 and 1898 which word is now used in Sections
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154, 155, 157 and 189(c) of the present Code of 1973 (Act 2
of 1974). An overall reading of all the Codes makes it clear
that the condition which is sine qua non for recording a first
information report is that there must be an information and
that information must disclose a cognizable offence.'' Finally,
this Court in para 33 said :
"33. It is, therefore, manifestly clear that if any
information disclosing a cognizable offence is laid before an
officer in charge of a police station satisfying the requirements
of Section 154(1) of the Code, the said police officer has no
other option except to enter the substance thereof in the
prescribed form, that is to say, to register a case on the basis
of such information.''
5. The views expressed by this Court in paragraphs
31, 32 and 33 as quoted above leave no manners of doubt
that the provision of Section 154 of the Code is mandatory
and the concerned officer is duty bound to register the case
on the basis of such an information disclosing cognizable
offence."
9. In the light of the arguments put forth on behalf
of the parties, this Court meticulously perused the material
on record.
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10. Admittedly, the petitioner was discharging duty
as an ASI in Sub-urban police station, Hubballi. The
respondent CBI did not register the case at once. It has
observed that the first accused was involved in a
conspiracy whereunder fake claims were being processed
by him for the public servant namely, the Divisional
Manager of an Insurance Company. As per the series
action/information, the CBI registered the cases as
aforesaid. During the course of investigation, the
statements of charge sheet witnesses were recorded
including the alleged claims said to have been made.
Based on such statements recorded, the CBI has prima
facie formed an opinion that in order to lay a fake claim
seeking compensation from the M.A.C.T., the documents
were concocted including the FIR. Six FIR's which have
been registered by the petitioner, are admittedly on the
basis of fake documents. Further, it is not a mere
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registration of the cases itself. The material on record at
this stage shows that the petitioner is part of larger
conspiracy whereunder he had share in the money and the
learned Special Judge while dismissing the application filed
by the petitioner seeking discharge has prima facie
recorded an opinion in the order dated 10th June, 2020 in
para 7 to 10 as under:
"7. Point No.1: As per the allegations made against this
A.2, he was the SHO of Hubballi South Traffic Police Station,
he registered the FIR on the receipt of the intimation from
Govt. Hospital, Kundagol and submitted the FIR to the court
under Cr. No.32/2011, it is for the offences punishable
U/Ss.279, 338 IPC and Sec. 187 of M.V. Act. It is the
contention of A.2 that, he being the SHO, he was duty bound
to discharge his duty as contemplated U/Sec. 154 Cr.P.C ., to
register the crime whenever any cognizable offence has taken
place. Nobody is disputing the power vested with him U/Sec.
154 Cr.P.C .,if everything was right and there was no
manipulation or insertion. Here there is an allegation that
falsely implicated A.7 to 9 as injured persons, creating the
story of sustaining injuries by them, when A.7 and 9 were
going in the auto, the said auto topped down due to rash and
negligent driving of its driver. The court has looked into the
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papers available in the file and also approach of the parties
during the pendecy of the trial. A.7 and 9 filed an application
U/Sec. 306 Cr.P.C ., and it was referred to CJM, Dharwad to
record the statement of accused as required under law,
wherein they given statement by denying the accident as
alleged and denied regarding sustaining any injuries as
alleged in Cr. No.32/2011. They narrated the story as if A.4
disclosed as there was an insurance scheme and obtained
their signatures. If that is the fact, A.7 and 9 taken 'U' turn by
narrating the facts as if they have not sustained any injuries
in the said accident. When there is an allegation that the
genesis of the crime begin from the date of recording the
statement of complainant, then it leads to suspect whether
A.2 was discharged his duty U/Sec. 154 Cr.P.C. or inserted
the names of unconcerned persons by manipulating the
things.
8. While addressing the arguments, the learned counsel
for A.2 canvassed that, based on the intimation received from
Govt. Hospital, Kundagol, A.2 has registered the case, before
that he rushed to the hospital and recorded the tement of
injured. A.7 and 9 never admitted to the hospital, they never
sustained injuries, as per the statement by them before Chief
Judicial Magistrate, Dharwad. But what prompted A.2 to
register a case by inserting the unconcerned persons as
injured persons, is the main gist of the case, that cannot be
ignored by accepting that A.2 was duty bound to discharge his
duty by registering a case. Since from the date of registering
the crime, there is a chain link for further investigation and
obtaining the wound certificates, disability certificates and
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ended in settlement of 3rd party claims, unless there is a
mind set and understanding between the parties, there could
not be such incident.
9. The learned P.P. has addressed the arguments that, MR
1124/2014-15 is pertaining to 3 PLA cases under Cr.
No.32/2011. PLA Petition No.137/2011 and 140/2011 are
disputed petitions. The claimants in the said petitions who are
A.7 and 9 are denying for having sustained any injuries in
their statement before CJM, Dharwad. Then how this A.2
inserted their names. Purposefully inserted or at the instance
of somebody or without preliminary enquiry at the spot, these
things are need to be appreciated by the court by recording
the evidence during trial. There is an inter link in between the
accused persons in built up the case, at various levels to
reach the stage of settlement before PLA. If any one of the
link is missing, then the entire efforts made by the
investigating agency will be went in-vein. Whether this A.2
misguided by anybody or purposefully he inserted the names
of unconcerned persons, the same will be appreciated during
the trial. But the accused would get ample opportunity to
contest the matter on the merits. Except that, absolutely
there are no circumstances are made out to get away from
the case at the initial stage itself by making use of the
provision U/Sec. 227 of Cr.P.C.
10. In the decision reported in 2010 SAR (Criminal) 869, it
has held as under:
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(iv) If on the basis of the materials on record, the court
could form an opinion that the accused might have committed
the offence, it can frame the charge.
In another decision reported in (2014) SCC 709 between
State of Tamilnadu by Inspector of Police Vigilance and Anti
Corruption vs. N.Suresh Rajan and others, it has held that;
"Under Section 227 of the Code, the trial court is required
to discharge the accused if is "considers that there is no
sufficient ground for proceeding against the accused".
However, discharge under Section 239 can be ordered when
"the Magistrate considers the charge against the accused to
be groundless". The power to discharge is exercisable under
Section 245(1) when, "the Magistrate considers, for reasons
to be recorded that no case against the accused has been
made out which, if un-rebutted, would warrant this
conviction".
By considering the facts and circumstances of the present
case, there are materials collected by the investigating
agency, as if this A.2 has included the unconcerned persons
as injured persons in the FIR. Based on it, 3rd party claims
are settled before PLA. When such is the allegation, it is too
early to anticipate the nature of evidence on the merits
against this accused. So, viewed from any angle, no grounds
are made out by A.2 to accept that he has not involved in the
said crime. Under such circumstances, the court cannot
accept the grounds urge by A.2 to allow the application to
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discharge him from the case. Hence, point No.1 is answered
in the negative."
11. It is needless to emphasise that at the time of
seeking discharge, the Court seized of the discharge
application and is only required to consider the materials
produced by the prosecution and not the defence of the
accused. In view of the principles of law laid down by the
Hon'ble Apex Court in the case of State of Orissa vs.
Debendra Nath Padhi reported in (2005) 1 SCC 568,
the learned trial judge has thus looked into the materials
on record placed before him in the form of charge sheet
and has referred to some of the documents also. If the
accused No.2 has only discharged his official function in
registering the FIR may be the principles of law enunciated
in Ramesh Kumari's case supra would come to his
rescue. But in the case on hand, since the material on
record also shows that petitioner (accused No.2) had an
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active role to play in the larger conspiracy, this Court is of
the considered opinion that no case is made out to quash
further proceedings by resorting to the powers vested with
it under Section 482 of Cr.P.C.
12. However, expressing any opinion on the merits
of the matter at this stage is uncalled for by holding a mini
trial. Prima facie materials on record in the form of
statements of charge sheet witnesses including the
statement given by accused No.1 before the investigating
agency wherein the fake claim came into picture, this
Court is of the considered opinion that the grounds urged
in the petition are not sufficient enough to quash the
criminal proceedings against petitioner-accused No.2 and
the order whereby the application under Section 227 of
Cr.P.C. came to be rejected after contest. Hence, the
following:
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ORDER
Petitions are dismissed.
It is needless to emphasise that the observation
made in this order is only for the purpose of disposal of
the present petitions and the same would not prejudice
the rights of the parties during trial.
Sd/-
JUDGE
SH
