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2013 Supreme(Kar) 351
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
H.S. Kempanna, J.
Sri K.M. Nataraj
Vs.
Smt. Theresamma and Ors.
Writ Petition No. 41823/2012 (GM-RES)
Decided On: 26.06.2013
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: Sri. B.L. Acharya, Sr. Adv. and Sri. Manmohan P.N., Adv.
For Respondents/Defendant: Sri. Gowthamdev C. Ullal, Adv. for R-9
Headnote:CODE OF CRIMINAL PROCEDURE, 1973 - Sections 156(3) & 482: [H.S. Kempanna, J] Order of Special Judge referring the complaint for further investigation - Challenged - Held, Before referring the complaint for investigation it is incumbent upon the Special Judge/Magistrate as the case may be, to look into the allegations made in the complaint apply his mind to allegations made in the complaint and in only cases which discloses a cognizable offence, the Magistrate/ Special Judge gets the jurisdiction to order an investigation by the Police if he does not take cognizance of the offence. When the allegation made in the complaint does not disclose cognizable offence, the Court that is either the Special Judge or the Magistrate has no jurisdiction to order Police investigation under sub-Section (3).
In this case, a perusal of the complaint filed by respondent Nos. 1 and 8 does not disclose any prima facie case as against the petitioner. There is no allegation indicating that the petitioner had any role in respect of the mutation entries made in the revenue records as against which the complainants on the one hand A8 and A9 on the other hand were agitating before the appropriate forum. The allegations are bald and cryptic. Admittedly, the petitioner has not appeared for the parties either in the revenue proceedings or in the writ petition before the Court. Merely, because the petitioner had appeared in the writ appeal on behalf of the State and had argued, it cannot be imputed to him that he has committed the offence as alleged in the complaint. The Entire allegations in the complaint does not disclose commission of any cognizable offence insofar as this petitioner is concerned. In that view of the matter, the impugned order of the Special Judge referring the complaint for investigation under Section 156(3) of Cr.P.C., cannot be sustained. Hence, the impugned order and all further proceedings initiated pursuant to the said order and the complaint filed by the respondents/complainants 1 to 8 are quashed.
CONSTITUTION OF INDIA - Articles 226 & 227: [H.S. Kempanna, J] Quashing of the order of Special Judge referring the complaint under Section 156 (3) of Cr.P.C., for further investigation - Grievance that the order was passed in a mechanical way without judicial scrutiny of allegations made in the complaint - Held, Before referring the complaint for investigation it is incumbent upon the Special Judge/Magistrate as the case may be, to look into the allegations made in the complaint, apply his mind to the allegations made in the complaint and in only cases which discloses a cognizable offence, the Magistrate/Special Judge gets the jurisdiction to order an investigation by the Police if he does not take cognizance of the offence. When the allegations made in the complaint does not disclose cognizable offence, the Court that is either the Special Judge or the Magistrate has no jurisdiction to order Police investigation under sub-section (3).
In the present case complaint did not disclose any prima facie case against the petitioner. No allegation made against Petitioner. Merely, because the petitioner had appeared in the writ appeal on behalf of the State and had argued, it cannot be imputed to him that he has committed the offence as alleged in the complaint. The impugned order cannot be sustained. Impugned order and all further proceedings initiated pursuant to the said order and the complaint were quashed.
H.S. Kempanna, J.
1. Respondents 1 to 8 in this petition have been served. They have remained unrepresented. Respondent No. 9 is represented by counsel. Though this petition is listed for preliminary hearing with consent of the learned counsel for the parties, it is taken up for final disposal.
2. The petitioner in this petition has sought for quashing the order dated 29.9.2012 passed in PCR No. 7/2012 by the District and Sessions Judge/Special Judge, Bangalore Rural District, Bangalore, all further proceedings initiated pursuant to the said order and also the private complaint filed by respondents 1 to 8 which are at Annexures 'A' and 'B' respectively.
3. The brief facts of the case are:-
Respondents 1 to 8 herein filed a private complaint against this petitioner and 14 others u/s. 200 of Cr.P.C. r/w. Section 7 of the Karnataka Lokayukta Act 1984 alleging that they have committed the offences punishable under Sections 7 to 13 and 15 of the Prevention of Corruption Act, 1988. The petitioner is arrayed as A6 in the said complaint.
4. It is the case of the complainants that they are all farmers in Binnamangala Village of Devanahalli Taluk, Bangalore Rural Dist. They are cultivating their common lands measuring 11 acres 10 guntas comprised in S. Nos. 23, 24, 25, 29, 30, 34, 35 and 41 of the said village. Their common ancestor one late Yagappa s/o Chinnappa had purchased the above lands under 3 sale deeds dated 16.5.1991. Revenue records had been mutated in his name as per the proceedings of the Tahsildar in M.R. Nos. 8/91-92, 9/91-92 and 10/91-92. It is their case that the lands purchased by the complainants' ancestor was part of total land measuring 152 acres 27 guntas situated in Binnamangala village which was initially regranted in favour of one Bali Reddy and Sri. Adinarayana Reddy on 6.1.1961. These original re-grantees disposed of the said lands immediately after the re-grant. The complainants' ancestor is the third purchaser in title of his part of the lands situated in Binnamangala village. It is their further case that A8 and A9 with the common intention of knocking off their property and other extent of land measuring 152 acres 27 guntas including the complainants property measuring 11 acres 10 guntas, prepared frivolous and collusive documents including the land exchange agreement dated 3.3.1993 and produced the same in O.S. No. 1785/2005 before the Senior Civil Judge, Devanahalli, Bangalore rural district and they also preferred an appeal before the Asst. Commissioner in R.A. No. 62/2006 challenging the mutation entries in respect of the lands purchased by their common ancestor. The said appeal came to be allowed. Aggrieved by the said order they preferred revision petition before the Deputy Commissioner which also came to be dismissed confirming the order of the Asst. commissioner. Thereafter, they filed writ petition in W.P. No. 5612/2010 challenging the orders of the Asst. Commissioner and the Deputy Commissioner. The learned Single Judge of this Court after satisfying about the serious illegalities and offences committed by A1 to A5 and by making serious observations allowed the writ petition by order dated 23.2.2011. It was further pointed out in the writ petition that there is a need to hold impartial and independent enquiry regarding the manner of functioning of the revenue officials, who are definitely guided by irrelevant considerations by misusing and abusing statutory powers and by abusing their position as public servant to obtain gain/favour to A8 and A9 and also to cause undue harm and hardship to complainants. Accordingly issued directions to investigate into the matter by Lokayuktha.
5. It is further the case of the complainants that A7 had appeared for A8 and A9 in the revenue proceedings and also in the writ petition filed by them. The said A7 initially was working as a clerk in the office of the petitioner and later after enrolling himself as an advocate started practicing with the petitioner in his
