Mareppa vs State and Others

K.N. Phaneendra, J.—I have heard the arguments of the learned counsel appearing for petitioner, learned High Court Government Pleader and learned counsel Sri. Ustad Firasat Hussaain appearing for respondent No. 2.

The petitioner has approached this Court seeking quashing of the proceedings in P.C.R No. 19/2014 on the file of J.M.F.C., Court Devadurga and consequentially order referring the said complaint to the jurisdictional police for investigation U/Sec. 156(3) of Cr.P.C., and registration of F.I.R, in Crime No. 157/2014 by Devadurga police station and further investigation in the said case.

The brief factual matrix that emanate from the records are that the respondent No. 2 lodged a private complaint in P.C. No. 19/2014 against the petitioner for the offences U/Sec. 120(B), 193, 420, 425, 465, 468, 471 of Indian Penal Code.

The brief allegations made against the petitioner by respondent No. 2 in private complaint is that the petitioner had filed a suit on 16-06-2009 in O.S. No. 74/2009 before Addl. Civil Judge Raichur (Aternary Court sitting at Devadurga) for declaration and injunction against State of Karnataka represented by Deputy Commissioner Raichur, Jail Superintendent of Police Raichur, Tahasildar Devadurga, the said suit came to be decreed. On 17-02-2012, it is alleged that the petitioner who had knowledge about the complainant''s father being alive and elder father of the complainant was still alive, at the time of filing the suit, but by mis-representing that those two persons were dead, obtained the decree in respect of land bearing survey No. 504/2004 and got mutated the same in his name. Therefore the said decree is on the basis of mis-representation and false information given by the petitioner before that Court. Therefore, he has committed the offences as alleged.

The Magistrate has referred the complaint U/Sec. 156(3) of Cr.P.C. for investigation and the police on the basis of the said reference registered a criminal case in Crime No. 157/2014 and they are investigating the matter, at this juncture the present petition is filed..

During the course of arguments learned counsel appearing for respondent No. 2, Sri. Firasat Hussain Ustad submitted that challenging the said decree in O.S. No. 74/2009, second respondent has filed a suit for cancellation of the said decree and the same is pending, in the meantime he had no opportunity in O.S. No. 74/2009 to bring the commission of the offence by the petitioner. Hence he has filed a private complaint.

As could be seen from the Judgment in O.S. No. 74./2009 the second respondent is not a party to the proceedings. Therefore at no stretch of imagination, it can be said that the said decree is binding upon the respondent No. 2, herein, if at all any of his rights are infringed, by the petitioner he is at liberty to exercise his right in a independent civil proceedings. Whatever may be the depositions, or the pleadings of the parties in a suit on the basis of which the Court has granted decree, cannot be made basis for filing a private complaint wherein the complainant is not a party to the suit. Further added to that when it is an admitted by the respondent No. 2, counsel that the respondent No. 2 has already filed suit then in such eventuality, the Court has to consider the decree passed in O.S. No. 74/2009 is proper and correct, whether it affect any of rights of the respondent No. 2. In the suit during the course of such proceedings, if the Court comes to the conclusion that the petitioner has committed any offence during the pendency of O.S. No. 74/2009, the Court is at liberty to take proper action U/Sec. 195 of Cr.P.C., by following the procedure U/Sec/. 340 of C.P.C. Therefore when the facts are hasy and not complete and the right of the respondent No. 2 to file the private complaint is not in existence and he can work out his remedy properly in the civil suit filed by him, in my opinion no private complaint can be entertained. Under the above said circumstances, I am of the opinion that if the private complaint filed by the respondent No. 2 in private complaint No. 19/2014 and consequential reference and investigation is allowed to be continued it amounts to abuse of process of law, therefore the same is liable to be quashed.

Hence the following:

ORDER

"The petition U/Sec. 482 of Cr.P.C., is allowed.

Private complaint filed by the respondent No. 2 in P.C. No. 19/2014 and consequential reference of the complaint U/Sec. 156(3) of Cr.P.C., in jurisdiction Devadurga police and registration of a case in Crime No. 1257/2014 Devadurga police station and all subsequent investigation in pursuance of the same are hereby quashed."