Nabisab and Others vs The State of Karnataka and Others

K.N. Phaneendra, J.—Heard the learned counsel for the petitioners and learned High Court Government Pleader. Perused the records.

The respondent No. 2 herein has filed a private complaint in P.C. No. 34/2011 alleging the offences U/Sec. 323, 324, 504, 506 and 447 R/w Sec. 149 of Indian Penal Code. The said complaint was referred to the jurisdictional police for investigation and report U/Sec. 156(3) of Cr.P.C. by the jurisdictional Court i.e., J.M.F.C, Sindagi. The police after due investigation submitted the ''B'' final report on the ground that complaint was filed under misconception on the expectation that the petitioners would compromise with the respondent No. 2. Therefore ''B'' final report was submitted to the Court. The said ''B'' final report was challenged by way of protest petition before the trial Court. The trial Court rejected the ''B'' final report and took the cognizance on the private complaint filed already coupled with the protest petition, recorded the sworn statements of the C.W.s 1 and 2 and after going through the contents of the complaint, protest petition as well as sworn statements of C.W.s 1 and 2 ordered to register a case against the petitioners and accordingly issued process to the accused Nos. 1 to 20 vide orders dated: 08-10-2012.

The records also discloses that, thereafter all the accused persons said to have appeared before the trial Court and now the case is stand posted for hearing before the charge. At this juncture the present petition is filed for quashing of the entire proceedings. The order of taking cognizance by the Magistrate was also challenged before the II Addl. Sessions Judge, Bijapur and the said Criminal Revision Petition No. 201/2012 was also came to be dismissed on 20-04-2014.

The learned counsel appearing for petitioners strenuously contended that respondent No. 2 has filed a suit in O.S. No. 53/2006 and it is very much pending before the Court. Further added to that the petitioners have filed complaint on 17-08-2011 and the police have investigated the said matter and filed charge sheet and the said case is pending against the respondent No. 2 herein. Thirdly he contends that the protest petition filed by the complainant do not disclose the ingredients of any offence. Therefore learned Magistrate could not have taken cognizance and issued process. The learned counsel further contended that the matter is of purely civil in nature and the parties are already agitating their rights before the civil Court. Further added to that the suit filed by the petitioners in which they have filed an application for injunction, they are not pressing the same because they know the consequences. In order to take vengeance against these petitioners respondent No. 2 herein filed a false complaint against them. On these grounds the said suit is also dismissed for non-prosecution. For all these reasons he claims the petition deserves to be allowed and the entire proceedings requires to be quashed.

Looking to the above said circumstances, respondent No. 2 though filed a suit in O.S. No. 53/2006, but no materials are placed before the Court as to what happened to the said suit. Further added to that no materials before the Court in respect of which property the dispute is there between the parties. The Court has to meticulously see whether only on the basis of Civil dispute the present criminal case is filed, there is lot of distinction between criminal proceedings and other proceedings. Though there may be civil dispute between parties, that itself is not sufficient to come to a definite conclusion at this stage that only to take vengeance a private complaint is filed. The High Court being the highest Court of the state has to cautiously see the contents of the complaint averments made therein and understand whether the allegations made in the complaint constitute any offence and further the Court has to look into other materials on record in order to ascertain only on vengeance such complaint is filed. Therefore when the materials placed before the Court are of hazy in nature, so that the Court can not definitely come to conclusion that, though no incident is happened a false complaint is filed by the respondent No. 2 against the accused. If the Court quashes the proceedings without giving any opportunity to the other side for leading evidence to prove the same, it virtually amounts an acquittal of the petitioners without trial. Therefore it is incumbent upon the Court to meticulously look into the materials on record. The main important aspect is that the Court has to go through the contents of the complaint and then ascertain whether the allegations made in the complaint constitute any offence, as such if that being the case, normally the Court should allow to continue such criminal proceedings to reach its logical end, unless there are sufficient materials to overcome the allegations made in the complaint.

It is stated that on 17-10-2011 a complaint was filed by the petitioners against the respondent No. 2. In that case charge sheet has been filed, even by that time a suit was already pending between the parties. Therefore it shows that some criminal activities taken place between the parties and it cannot be said that no incident taken place on 18-11-2011 and a false complaint is lodged. Though the police have filed a ''B'' final report, it is the domain of the trial Court to go through the contents of ''B'' final report the contents of the complaint, sworn statement and the Court may take a decision whether it is a fit case to take cognizance.

In this back ground on perusal of the complaint averments it is categorically stated about the incident being taken place on 18-11-2011 at about 8.00 a.m. The complainant has stated that all the accused persons on that particular day holding deadly weapons like sickle, clubs, etc in their hands came near the garden house of the complainant and abused them in filthy language and also assaulted him with their hands and kicked the complainant and others with legs and also assaulted with clubs etc and threatened the complainant and others with dire consequences of killing them. Though it is stated in the complaint that they are having some dispute with regard to 13 acres 09 guntas of land, but at this stage, it cannot be said that only due to that dispute a false complaint has been filed against them.

Now coming to the other grounds urged by the learned counsel with regard to the protest petition. The learned counsel appearing for the petitioners submitted that the protest petition did not contain the allegations constituting any offence, the Magistrate has no jurisdiction to take cognizance against the accused, I am at less to accept the said contention of the learned counsel, because of the simple reason that the original complaint filed by the complainant was very much available on record, but subsequently he has filed a protest petition. Therefore looking to the surrounding circumstances and considering the complaint averments the allegations which are sufficient to constitute any offence against the petitioners, then the Magistrate can take cognizance on the original complaint. Though the protest petition does not contain any allegations, the learned Magistrate is empowered to take cognizance on the basis of the contents of the original complaint itself. In my opinion, requiring the complainant to reiterate the same allegations in the protest petition may not be necessary. Therefore, it cannot be said that the Magistrate has committed any error in relying upon the contents of the complaint. The learned counsel contended that this Court had an occasion to deal with the similar set of facts and circumstances and quashed the proceedings. He relied upon an unreported ruling of this Court in Criminal Petition No. 3011/2009 dated 08.04.2013. I have carefully perused the said decision. It is to be noted before adverting to the above said ruling that there cannot be any precedent on facts. Each and every case has got its own peculiarity of facts. The Court should only consider the facts of that particular case and then apply principles. In this background, if the above said case is analyzed at paragraph-5 the Court has observed that,-

"The contention that the private complaint is in respect of a criminal offence, which is totally unconnected with the civil dispute that may have been decided in the civil suits cannot be readily accepted. On the other hand, it may said that the criminal offences alleged are an offshoot of the civil dispute. Insofar as the civil suits filed by both the petitioners as well as the respondent are concerned, the same has been held in favour of the petitioners, in that, the respondent is restrained from interfering with the possession of the property in question in favour of the petitioners. Therefore, to that extent, insofar as the main dispute is concerned, the respondent apparently has failed to establish his case even on probabilities. Hence, the interference and the violation of the law in relation to the property and the incidental commission of any offences which may be punishable under the provisions invoked, may not be capable of being established beyond reasonable doubt. In the circumstances that the respondent has miserably failed not only before the Trial Court, but before the appellate court as well and in respect of such concurrent findings, unless a substantial question of law is shown as being answered in favour of the respondent, it is unlikely that the respondent would succeed in the second appeal as well."

On the basis of the above said facts, this Court quashed the criminal proceedings.

This Court has observed in the above said case that criminal case is not capable of being established beyond reasonable doubt in view of the civil dispute between the parties. With great respect, I am of the opinion that this Court cannot visualize, whether the case will end up in conviction or acquittal, at the time of exercising power under Section 482of Cr.P.C. What is contemplated is, giving face value to the contents of the police papers available on record, if no case is made out or vengeance is prima facie shown and the materials placed are not of such a conclusive quality so that the Court can without allowing the parties to go on with the trial, Court can''t quash the proceeding In my opinion, in the above said case, the Court has also considered the civil dispute between the parties have already been concluded and the complainant was restrained by means of injunction order which went up to the High Court and two courts have concurrently held against the complainant. Therefore, the Court was of the opinion that possession over the property is unequivocally proved before the civil Court and therefore, the Court has come to the conclusion that the criminal case may be offshoot of the civil case. In this particular case, admittedly, the suit is of the year 2006, the complaint is filed by the petitioner against respondent No. 2 on 17.08.2011 and the present complaint is of the year 2011 i.e., on 18.11.2011. These factors show that when the matter pending before the civil Court is not yet concluded between the parties, the parties are fighting against each other both on the civil side and also engaging in the criminal activities. Therefore, under the above said circumstances, this Court has to take all surrounding circumstances into consideration before quashing the proceedings.

When there are specific allegations made in the complaint which has been fortified by means of sworn statement and also detailed order has been passed by the Magistrate expressing his satisfaction with regard to the sufficiency of grounds to proceed against the accused, such an order should not be normally interfered with by this Court. It is worth to refer to a decision of the Apex Court in the latest pronouncement reported in Bhaskar Lal Sharma and Another Vs. Monica and Others, (2014) AIRSCW 1586 : (2014) CriLJ 1848 : (2014) 3 JT 101 : (2014) 2 SCALE 394 : (2014) 3 SCC 383 , wherein the Apex Court has held that,-

"Core test that has to be applied before summoning the accused is that the facts stated against accused have to be accepted as they appear on the very face of it. Appreciation, even in a summary manner, of averments made in a complaint petition or FIR is not permissible at the stage of quashment of criminal proceeding. The facts, as alleged, will have to be proved which can only be done in the course of a regular trial."

Further added to that, the Apex Court has also given certain guidelines in a decision reported in State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, (2004) CriLJ 598 : (2003) 9 JT 284 : (2003) 9 SCALE 704 : (2004) 1 SCC 691 : (2004) 1 UJ 165 , wherein, it is stated that quashing of proceedings and appreciation of materials on record held not permissible even if the charge sheet is filed and charges are framed at that stage, the High Court cannot appreciate the materials but only to look into the documents and materials on record to the extent of their prima facie satisfaction about the existence of sufficient ground for proceeding against the accused.

Looking to the above said rulings of the Apex Court, I am of the opinion that in this case, particularly, when ingredients of the offences alleged are available in the complaint which is supported by the sworn statement of the complainant and his son, merely because all the witnesses were not examined at that stage, is not sufficient to quash the proceedings without providing an opportunity to the complainant to establish his case. Further added to that, if the accused persons are maliciously prosecuted without there being any ground, there is ample opportunity to the accused persons, later after succeeding in the criminal case, to file suit for recovery of damages against the complainant and others. Therefore, at this stage, when the matter has already reached stage of hearing before charge before the Trial Court, this is not a fit case to quash the proceedings. However, all the grounds urged before this Court are kept open for the petitioners to be urged before the Trial Court even at the time of framing charges. If such an application is filed, the Trial Court to pass order without being persuaded by any of the observations made in this order. With these observations, the petition stands dismissed.