(Prayer: This petition is filed U/S 482 of Cr.P.C. by the Advocate for the petitioner praying that this Hon'ble Court may be pleased to quash the impugned order dated: 24.01.2015 passed in P.C.No. 06/2008 for taking cognizance of the offence U/S 3(1)(x) of SC/ST (PA) Act and U/S 506 of IPC, pending on the file of Learned II Addl. Sessions/Special Judge, Vijayapur, so far as the petitioners are concerned, in the Interest of Justice.)
1. The present petition is filed under Section 482, Cr.P.C. requesting the court to quash the criminal proceedings initiated in PCR.6/08 on the file of II Additional Sessions Judge cum Special Judge, Vijayapura. By virtue of the order dated 24.1.2015, the learned special judge dealing with cases arising out of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, (hereinafter referred to as the Act, for brevity) has taken cognizance against these petitioners and three others for the offences punishable under Section 3(1)(x) of the Act read with Section 506, I.P.C. and has issued process against them for securing their presence. It is this order which is called in question in this petition on various grounds as set out in the petition.
2. The facts leading to the filing of the private complaint by the 2nd respondent herein-Kittu, a practicing advocate at Vijayapura are as follows:
a) On 25.10.2008 the 2nd respondent-Kittu went to Muddebihal police station along with Gangabai Talwar and her son and daughter-in-law Sharada to lodge a complaint against M.D. Kumbar, advocate, in connection with the alleged misappropriation of the compensation amount awarded by the Motor Accidents Claims Tribunal. He had prepared a complaint on behalf of Smt. Gangabai and wanted to present the same to the SHO. At that time, since the PSI was not in the police station, SHO did not receive the complaint and asked him to wait till arrival of the PSI.
b) At about 5.00 p.m. inspector Vekanagouda Patil (1st accused) and Sangamesh Patil (2nd accused) returned to the police station and complainant accompanied by Gangabai went to the chambers of 2nd accused-PSI, and insisted to register acase since they were waiting from 11.00 a.m. Sangamesh Patil told him it was not possible to register a case against M.D. Kumar, a practicing advocate since he would be approaching him for MVC cases every now and then. The PSI is stated to have told him that he would first inquire with Kumbar and then register the case.
c) Accordingly Sangamesh Patil (2nd accused) is stated to have contacted M.D. Kumbar (3rd accused) over his mobile phone and asked him to come to the police station. Accordingly he came and gave his version to the PSI stating that a sum of Rs. 612450/- was credited to the account of Gangabai in Souharda Co-operative Bank at Muddebihal. Then Gangabai is stated to have suggested to the PSI that Kumbar could deduct only 15% out of the compensation awarded and the remaining amount be paid to her, lest, the case be registered against him.
d) It is alleged that at that time, 3rd accused-Kumbar abused Kittu-complainant with reference to his caste as a person belonging to Lambani (a sect in the scheduled caste) and asked him as to how he had mustered courage to bring Gangabai and her family members and others to lodge a complaint. He is stated to have threatened the complainant with dire consequences after coming out of the police station.
Then these petitioners also threatened the complainant with reference to his caste as a person belonging to Lambani stating as to how he had mustered courage to lodge complaint against them in their own place-Muddebihal.
e) In spite of such an incident having taken place in the police station, neither the PSI nor 2nd accused “ Sangamesh Patil registered the case and they were hand in glove with accused nos. 3 to 5. Hence complainant filed a complaint under section 2(d) of Cr.P.C. before the special Court on 28.08.2008.
3. After taking cognizance, the sworn statement of the complainant “ Kittu was recorded on 1.10.2009 and ultimately the impugned order was passed on 24.1.2015. The operative portion of the order is as follows:
ORDER
Cognizance is taken for the offences punishable under Sec. 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and Sec. 506, IPC as against accused no. 1 to 5.
Issue process against accused no.1 to 5 on complainant filing list of witnesses.
Returnable by 28.2.2015.
Complaint as against accused no. 6 stands dismissed under Sec. 203, CrPC.'
4. It is contended on behalf of the petitioner that the order passed by the sessions judge in issuing process to these petitioners is contrary to the facts of the case and the learned judge has lost sight of the manner in which the complaint is filed and the inordinate delay in lodging complaint before court by an educated person like Kittu. It is contended that a criminal case had been lodged against these petitioners and bank manager on the basis of the complaint lodged by Gangabai on the same allegation relating to non-payment of compensation amount arising out of MVC. 311/03 and that the said complaint had been drafted by the 2nd respondent and there was no whisper about the allegation made in the complaint filed by Gangabai. It is further stated that Breport was filed in the said case and in spite of filing protest memo, by Smt. Gangabai the case was closed.
5. It is argued that the private complaint was filed by Kittu is nothing but an abuse of the process of law and hence it is liable to be quashed.
6. Per contra, learned HCGP, Mr. Maqbool Ahmed and Mr. Ambekar representing the 2nd respondent have submitted that the learned judge has rightly taken cognizance and issued summons to the petitioners on the basis of sworn statement and it is a valid order. It is argued that no good grounds are made out to interfere with the well considered order passed by the learned special judge.
7. The records of PCR. 6/08 are called for from the special court. Perused the same.
8. Whether the case on hand is fit to invoke the extraordinary power vested in the court under Section 482, Cr.P.C. to quash the criminal proceedings against these petitioners, is the question.
9. The records called for from the special court disclose that a case had been registered in Crime No. 252/08 against M.D. Kumbar “ 3rd accused and bank manager of Souharda Co-operative bank for the offences punishable under Sections 504, 506 and 420, I.P.C. on the basis of first information lodged by Ganagabai Talwar on 25.10.2008 at 4.30 pm by the PSI, Muddebihal P.S. The first information so lodged runs upto 8 pages and the author of it is none other than Kittu-complainant. On going through the contents of the first information lodged at 4.30 p.m. on 25.10.2008 by Gangabai, the scribe of which was Kittu, it is seen that the entire allegation was against Kumbar the third accused in regard to the alleged misappropriation of compensation amount awarded by the MACT relating to the death of her son and encashing the amount in collusion with the 2nd accused and manager of Souharda Co-operative Bank.
10. In the detailed first information lodged by Gangabai at 4.30 p.m. on 25.10.2008, there is absolutely no reference about the alleged abuse made by these petitioners against Kittu with reference to either his caste or the threat held out to him with dire consequences to his life.
11. It is specifically stated in the petition that a criminal case in Crime No. 252/08 lodged on the basis of first information lodged by Gangabai ended in filing of Breport and the case was closed by accepting the same. This factual submission is not contradicted in any manner by the learned counsel representing the 2nd accused before this court.
12. Normally this court which is vested with the power under Section 482, Cr.P.C. should not sit over the decision taken by the court in regard to issuance of process as contemplated under Section 204, Cr.P.C. The power under Section 482, Cr.P.C. is to prevent abuse of the process of law and to secure justice. Normally the High Court should be circumspect and should exercise the power only in exceptional circumstances depending on the facts and circumstances of each case. If the allegation leading to criminal prosecution prima facie does not disclose or constitute an offence, then the power under Section 482, Cr.P.C. can be exercised.
However, disputed the question of fact cannot be decided like trial court. In the case of RISHIPAL SINGH .v. STATE OF UTTAR PRADESH and ANOTHER ([2014] 7 SCC 215), it is held that a frustrated litigant need not be permitted to vent vindictiveness through abuse of process of law and such proceedings are required to be stopped in early stages.
13. The apex court in the case of RAJIV THAPAR and OTHERS .v. MADAN LAL KAPOOR ([2013] 3 SCC 330) has laid broad guidelines in regard to the steps to be followed in order to determine the veracity of a prayer for quashing proceedings initiated against the accused, before the High Court under Section 482, Cr.P.C. The relevant portion is found in paragraphs 30 to 30.5 at page 348 of the judgment and is extracted below:
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the accused, would rule out the assertions contained in the charges leveled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3. Step three: whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused. ?
14. The conduct of the complainant-Kittu in this case is to be looked into. He is the scribe of the detailed first information lodged by Gangabai at 4.30 p.m. on 25.10.2008, on the basis of which a case came to be registered in Crime No. 252/08 against M.D. Kumbar (3rd accused) and the manager of the Sowharda Co-operative bank. As rightly pointed out by Mr. Manvendra Reddy, learned counsel for the petitioners, there is absolutely no whisper in complaint lodged by Smt. Gangabai about the threat held out to Kittu. Admittedly Kittu is also a practicing advocate and a knowledgeable man. Three days after the alleged incident of abuse with reference to his caste, a private complaint was filed before the court at Vijayapura. The inordinate delay in lodging such complaint will weaken the very substratum of the case of the complainant to a greater extent and thus will definitely be taken into consideration by the court while evaluating the evidence as a whole. There is absolutely no reference about the delay in lodging the complaint, though the alleged incident is stated to have taken place on 25.10.2008 in the police station. Registration of case in Crime No. 252/08 against the manager of the bank ended in filing of Breport and acceptance of the same by the concerned court. Apart from this, the sworn statement of the complainant was recorded on 1.10.2009. The complaint was filed on 28.10.2008 and the complainant had taken 23 adjournments to be present for recording his sworn statement.
15. The learned judge passed suitable orders after 8 “ 10 adjournments and the matter was posted on 24.6.2011 for hearing arguments. The complainant was absent on almost all the hearings and ultimately he was present on 23.1.2015 and further arguments were heard. It took 30-40 hearings for the complainant to submit further arguments in regard to the cognizance to be taken. His conduct speaks in volumes in regard to protracting the case against the accused. In the very complaint filed under Section 2(d) read with Section 200, Cr.P.C. filed on 28.10.2008, the complainant has not made any reference about registration of the case in Crime No. 252/08 on the basis of first information lodged by Gangabai, author of which was the complainant himself. The complaint filed before the special Court and the order passed on 24.1.2015 discloses that accused No. 6 was not at all present in the Police Station. In fact case in Crime No. 252/08 was registered at 4.30 pm and not 6.30 pm as alleged. In fact accused Nos. 1 and 2 did their official duty in registering the case as per the first information lodged by Smt. Gangabai, in Crime No. 252/08.
16. Basically it is a dispute between M.D. Kumbar, a practicing advocate and Gangabai with regard to the alleged misappropriation of amount in relation to the death of her son in a motor accident. He had solicited the services of the complainant and had rendered legal assistance by drafting a detailed complaint. In view of the very registration of the criminal case in Crime No. 252/08 at 4.30 p.m. on 25.10.2008, theory of the complainant that accused nos. 1 and 2 coming back to Police Station at 5.00 pm is falsified.
17. Apart from this, the third accused Mallappa Kumbar, advocate, had lodged first information against the said Kittu, advocate on 25.10.2008 at 3.30 pm itself before Muddebihal P.S. on the basis of which a case was registered in Crime No. 253/08 on 25.10.2008 itself. This is evident from the very records found in PCR 6/08 (Spl CC 6/15). As rightly pointed out by Sri Manvendra Reddy, PCR. 6/08 was filed on 28.10.2008 as a counter blast to Crime No. 253/08, a case registered against complainant “Kittu.
18. The learned judge has not looked into all these important materials aspects while taking cognizance. Had the learned judge looked into all the documents and important events filed by the very complainant, there would have been no opportunity to take cognizance.
19. Learned Counsel for the petitioners has argued that the private complaint so filed by the complainant is nothing but settling scores. There appears to be a lot of force in the said submission. In fact accused Nos. 1 and 2, being responsible Police officers discharged their duty by receiving the first information lodged by Smt. Gangabai and registering a case and submitting FIR to the learned JMFC. Even if the entire complaint is read in the light of the very materials placed on record before the special Court, the possibility of conviction is very much remote. Apart from this precious time of the Court will be wasted in this process. In this view of the matter, this is a fit case to invoke the power vested in this court under Section 482, Cr.P.C. and to quash the criminal proceedings initiated by the complainant.
20. In the result, the following order is passed:
ORDER
The petition is allowed. The criminal proceedings initiated in PCR. 6/08 by the II Additional Sessions Judge and Special Judge, Vijayapura, is quashed.