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2017 Supreme(Kar) 9
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RATHNAKALA, J.
Smt. Shylaja W/o V. Somanna & Anr. - Petitioners
Vs.
The Superintendent of Police Lokayukta & Anr. - Respondents
Criminal Revision Petition No. 473 of 2012 C/W Criminal Revision Petition No. 480 of 2012
Decided On : 02-01-2017
For the Petitioners: Sri C.V. Nagesh, Sri. Murthy Dayanand Naik, Sri. H.S. Chandramouli, Sri. Hareesh Bhandary
For the Respondents: Sri. B.S. Prasad, Sri. P.N. Hegde
Headnote:
Indian Penal Code,1860 - Sections 21,406, 409, 420, 463, 464, 468, 471 ,120B -Criminal Procedure Act,1973 - Sections 190(1)(a) , 190(1)(b), 190(1)(c),202,482,197,200 - Prevention of Corruption Act - Sections 13(1)(c) and (d) ,13(2),19 - Karnataka Land (Restriction and Transfer) Act, 1991 - Sections 2(c),3, 4 and 5 ,9 - Challenge – Quash of Criminal - Former Deputy Chief Minister/Chief Minister of Government of Karnataka - Second accused is wife of third accused who is MLC and Former Minster of Government of Karnataka and fourth accused is the landlord of immovable properties de-notification of which was challenged in complaint - learned Special Judge referred the matter for investigation to first respondent/Lokayukta Police - After investigation Investigating Officer submitted ‘B’ Final Report since there was no evidence/documentary proof in support of complaint allegation - Whether material on which prosecution proposes to prosecute accused brings out a prima facie case or not - Whether same discloses commission of an offence and is required to form such an opinion in this respect. - Whether complainant has made out a case for purpose of proceeding in matter. - Whether order of Special Judge in taking cognizance of alleged offence and issuing summons to petitioners is illegal? – Held, Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when complaint is dismissed and that too the reasons need to be stated only briefly - In other words Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course - There must be sufficient indication in the order passed by Magistrate that he is satisfied that allegations in complaint constitute an offence and when considered along with statements recorded and result of inquiry or report of investigation under Section 202 CrPC, if any accused is answerable before criminal court there is ground for proceeding against accused under Section 204 CrPC by issuing process for appearance. - Application of mind is best demonstrated by disclosure of mind on satisfaction - If there is no such indication in a case where Magistrate proceeds under Sections 190, 204 CrPC High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of power of criminal court. To be called to appear before criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society – Hence process of criminal court shall not be made a weapon of harassment - Unless any out of many other acts alleged against an accused falls within description of offence contemplated under Act a Special Judge does not get jurisdiction to try offences under IPC or any other allied statute - Unfortunately learned Special Judge did not address this aspect of the matter - There is no indication of application of his mind as to what offence alleged acts amount to - He gets jurisdiction to try offences under I.P.C. if only ingredients of any of offences under Sections 7 to 11 and 13 of Act is attracted as against revision petitioners - He has not expressed his satisfaction that for violation of provisions of K.L.R.T Act Special Court is right forum for prosecution - That cloths impugned order with illegality - Petitions are allowed
The Revision Petitioners being arrayed as accused persons in a private complaint filed by respondent No.2 are challenging the order of the Special Judge in taking cognizance of the offence and issuing summons to them.
2. Briefly stated, the second respondent filed a complaint against four accused persons. The First accused is the Former Deputy Chief Minister/Chief Minister of Government of Karnataka. The second accused is the wife of third accused, who is MLC and Former Minster of Government of Karnataka and the fourth accused is the landlord of the immovable properties, the de-notification of which was challenged in the complaint. The learned Special Judge referred the matter for investigation to the first respondent/Lokayukta Police. After investigation, the Investigating Officer submitted ‘B’ Final Report since there was no evidence/documentary proof in support of complaint allegation. The learned Special Judge rejected the final report and took cognizance in respect of the offences under Sections 406, 409, 420, 463, 464, 468, 471 read with Section 120B of the Indian Penal Code, Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act (‘the Act’ for short) and Sections 3, 4 and 5 read with Section 9 of the Karnataka Land (Restriction and Transfer) Act, 1991 (‘the K.L.R.T. Act’ for short).
3. Sri. C.V. Nagesh, learned Senior Counsel appearing on behalf of the petitioners submits that the final report was filed on 21.3.2012. On the same day, complainant filed a memo and he was heard on 21.3.2012 and the matter was posted to 29.3.2012. On 29.3.2012 the matter was reserved for orders on 13.4.2012. However, the complainant got the case advanced to 5.4.2012 and was heard. On 13.4.2012, the learned Special Judge rejected the final report and took cognizance against the petitioners and others and issued summons returnable by 30.4.2012. The learned Judge has not followed the mandatory procedure envisaged under Sections 200 and 202 of the Code, in directly issuing summons. Since the complainant had filed a protest application, same had to be treated as private complaint and the mandatory procedure contemplated at Chapter-V of the Code ought to have been followed. The discussion in the body of the impugned order does not reflect that the learned Judge has taken cognizance. As such, very reference of the complaint for investigation was bad in law since the complainant had not obtained prior sanction under Section 19 of the Act and Section 197 of the Code. Petitioner No.2 is a “public servant” falling under the definition of Section 2(c) of the Act and Section 21 of IPC. Thus the entire proceedings is vitiated. Even otherwise, the complaint allegations do not make out any offence against the petitioners. They are in no way connected to the crime in question. The complaint allegations are absurd and inherently improbable. The impugned order is passed in a mechanical way without application of mind. Hence, the continuation of proceedings would be an abuse of process of the Court and the petitioners will have to unnecessarily undergo the ordeal of facing the trial before the Special Court.
Learned Senior Counsel continues to submit that as per law enunciated in Vasanti Dubey Vs. State of Madhya Pradesh, [2012] 2 SCC 731, it is only after holding an enquiry, the learned Trial Court would have formed an opinion as to whether the complainant has made out a case for the purpose of proceeding in the matter. The impugned order is passed without proper application of judicial mind, thus, against the principles laid down by the Apex Court in Sunil Bharti Mittal Vs. Central Bureau of Investigation reported in (2015) 4 SCC 609 and M/s. GHCL Employees Stock Option Trust Vs. M/s. India Infoline Limited, (2013) 4 SCC 505.
The documents collected by the Investigating Officer during the course of his investigation is not looked into by the trial court. In the gazette notification itself, the fourth accused Lingaiah’s name
