R. Shankar and Others vs L.J. Malathi and Others

L. Narayana Swamy, J.—These criminal petitions are filed by petitioners seeking to quash the entire proceedings in PCR No. 195/2011 (CC No. 51188/2013) on the file of XI Additional C.M.M., Bangalore.

Both the petitions arise out of the same proceedings and the facts to be stated in brief are as follows:

(i) A private complaint came to be filed by the respondent Smt. M.J. Malathi, the complainant, as against 9 accused persons under Section 200 of the Code of Criminal Procedure. Petitioner in Crl. P. No. 6634/2014 is Accused No. 8 and petitioners in Crl. P. No. 6934/2014 are accused Nos. 1, 3 to 7.

(ii) It is alleged by the respondent complainant that she was running a shop in tenanted premises at Hennur Main Road, Bangalore in the name and style "Manoj Gift Center". Accused No. 2 to 5 used to purchase article from respondent complainant''s shop on credit basis and they used to tease and assault and also instigated her landlord.

(iii) On 20.5.2004 Accused No. 1 called on respondent complainant''s mobile directing her to come to Nagavara Ring Road in order to go to Munikrishna''s house at Hebbal for a meeting. It is alleged that the accused No. 1 took her to Nandi Hills and they reached there at 2.30 p.m. and entered guest house and he had sexual intercourse forcibly against her will without consent.

(iv) It is alleged, after the aforesaid incident, Accused No. 1 used to come to her shop regularly and because of the same she did not lodge any complaint against him. She is a widow and is having two school going children. Accused No. 1 and 2 to 5 made her believe that they will solve her problems. Later Accused No. 1 cheated and threatened to kill her.

(v) On 28.5.2004 Accused No. 1 came by a car and dashed her two-wheeler vehicle and she was admitted to local hospital later she was shifted to NIMHANS and discharged from there on the same day.

(vi) The respondent complainant lodged complaint on 23.5.2011 before the jurisdictional police and then a private complaint on 18.07.2011. Along with the complaint the respondent complainant filed application under Section 473 of the Code of Criminal Procedure seeking to condone the delay in filing the complaint.

(vii) The Trial Judge recorded sworn statement of the complainant on 21.2.2012, 16.6.2012 and sworn statement of CW-2 on 23.3.2013 and by the order dated 26.7.2013 proceeded to take cognizance of the offences for the offences punishable under Sections 376 , 307 , 120B R/w 149 IPC.

(viii) It is stated that the learned Magistrate without application of mind has taken cognizance under Section 190 Cr.P.C. It is stated the complainant respondent is involved in more than 40 cases. She is a habitual offender and in the habit of lodging false complaint against the politicians, political workers, persons involved in social life including police, government officials to extract money from them. She has lodged several complaints against several others alleging rape on her.

(ix) Hence the petitioners have filed these petitions seeking quashing of the entire proceedings before the court below.

I have heard the learned counsel for the petitioners, respondent party-in-person and perused the entire records.

The learned counsel for the petitioners in both the criminal petitions submit that there is absolutely no allegation of the role played by the petitioner in Criminal Petition No. 6634/2014 in conspiring with the first accused in committing the alleged offences. The complainant respondent had gone voluntarily with the accused No. 1 to Nandi Hills. The respondent herself stated in the sworn statement that once in 2 days, 3 days, 5 days and 8 days accused No. 1 was using her and then she says once in a month, two months, 8 months he was using her and further stated from 2004 to 2006 Accused No. 1 was using her, therefore the alleged act of Accused No. 1 from 2004 to 2006 were with consent, not attracting the definition of Section 375 IPC.

It is submitted that in a case of this nature, the important circumstance that can be looked is the evidence of resistance which one could normally expect from prosecutrix unwilling to yield to sexual intercourse on her. Nothing of that sort could be made out from the statement and allegations made by the complainant-respondent.

It is contended by the petitioners that to establish the offence of conspiracy, there shall be meeting of minds and agreement among them to do something harmful and illegal. It is not the case of the respondent complainant that other petitioners than the first accused either forced her, threatened her, mislead her, persuaded her to go with Accused No. 1. The respondent-complainant was fully aware of nature of the act and she could not say that she was ignorant of sexual matters. When the respondent herself went with the act, there cannot be conspiracy by any of the petitioners (Accused Nos. 2 to 9) so as to attract Section 120B r/w. 149 IPC so far as it relates to Section 376 IPC.

The learned counsel for the petitioners further contend that it is alleged, on 28.5.2004 near Jyothi School, Accused No. 1 came in his car and dashed her two-wheeler vehicle in which she was traveling. When it is her say that she had gone to Nandi Hills on 20.5.2004 and when it is her case that she yielded to the tactics of Accused No. 1 and did not protest, there was no occasion for the Accused No. 1 to commit such an act on 28.5.2004 just in 8 days time to attract the offence under Section 307 IPC. and in view of the specific statement of respondent complainant that she was used by Accused No. 1 between 2004 and 2006, the allegation of attempt to commit murder as on 28.5.2004 is utterly false.

The learned counsel submits that the there is no truth in the allegation of the respondent complainant that the accused in order to force her to vacate the shop as the landlady Mamatha filed ejectment suit in O.S. No. 27028/2007 which was decreed on 01.10.2010 and by the judgment dated 20.7.2011 in R.F.A. No. 1967/2010, this Court granted one year six months time to vacate.

It is contended by the learned counsel for the petitioners that there is an inordinate delay of 7 years in filing the complaint. To explain the said delay, the respondent complainant has stated that Accused No. 1 had been controlling the will of the helpless poor complainant and till today the accused were torturing her from going to court. The materials on record show that the respondent complainant has filed quite a number of cases against various persons and if really the incident had taken place, there was no reason for the respondent complainant to wait for 7 days. The complaint made by the respondent is only clear abuse of process of the court and for extraneous reasons.

It is further submitted that the learned Magistrate has committed grave error in taking cognizance after recording the sworn statement without recording subjective satisfaction as to the case made out to proceed against the petitioners. The respondent complainant has not even mentioned relationship of A3 to A6 though common address was mentioned to them. There is not even address mentioned to A7 & A8 which the learned Magistrate had not noticed and mechanically ordered issue of process which has resulted in miscarriage of justice.

On the other hand, the respondent-party in person supported the order passed by the learned Magistrate in taking cognizance of the offences and ordering process against the petitioners & others and there is no scope for interference by this Court under Section 482 of the Code of Criminal Procedure and thus sought for dismissal of the criminal petitions.

After hearing the arguments of both sides, the points that arise for consideration in these two petitions are:

(a) Whether the respondent-complainant has made out a case for proceeding further against the petitioners for the offences punishable under Sections 376 , 307 , 120B r/w Section 149 IPC?

(b) Whether it is a case for exercise of power under Section 482 of the Code of Criminal Procedure.

My answer to the above points would be in favour of the petitioners for the following reasons.

Before proceeding to consider the above points, it is necessary to dilate on the issues relating to ''taking cognizance'', delay in lodging complaint and the scope for exercise of inherent jurisdiction u/s. 482 Cr.P.C.

In Revanappa and Another Vs. S.N. Ragunath, this Court has held in Para-7 of the judgment as follows:

"7.....It is needless to say that when a complaint is presented under S. 200 Cr.P.C., it is incumbent upon the Magistrate to have considered whether it is a fit case to take cognizance of the offences as contemplated under S. 190 Cr.P.C. and if he thinks to take cognizance then he ought to take cognizance and thereafter to examine the complainant and witnesses, present, if any, and thereafter to issue process as contemplated under law...."

In Nitin V. Bhimani and Another Vs. A.R. Basu, , it is observed in Para-6 of the judgment as follows:

"6.....it is the mandatory provision under S. 200 of the Code of Cr.P.C. that cognizance is to be taken first and thereafter the complainant and his witnesses so present to be examined. Thereafter the question of issuance of summons will be coming in..."

In Moideenkutty Haji and Others Vs. Kunhikoya and Others, , Full Bench of Kerala High Court took the view in Para 20 & 21 that "In a complaint case disclosing an offence exclusively triable by a Court of Session, the scope and object of the enquiry are presumably different. Formation of the opinion by the Magistrate that there is or is not sufficient ground for proceeding is not the only purpose of such an enquiry. It must also appear to him that the offence is triable exclusively by the Court of Session and in that consideration he has to bear in mind that the case would go out from his Court to be tried by a superior Court, which may not be bound by the opinion formed by him on the basis of available materials that there is sufficient ground for proceeding. The Magistrate has to comply with the provisions of S. 208 by furnishing copies of the documents mentioned in the Section. S. 208 gives sufficient indication that the enquiry envisaged in S. 202 is mandatory if the offences disclosed are exclusively triable by Court of Session".

In Para-6 of the above judgment, it is further observed that to place an accused for trial before the Court of Session on a complaint which discloses no offence, much less an offence exclusively triable by that court, will lead to miscarriage of justice. Under Section 209 it must appear to the Magistrate that the offence is triable exclusively by the Court of Session. When such an illegal order passed by a Magistrate is brought to the notice of this Court, it is the duty of this Court to exercise inherent powers to correct the illegality.

The Hon''ble Supreme Court in the case of Manharibhai Muljibhai Kakadia and Another Vs. Shaileshbhai Mohanbhai Patel and Others, has held in Para 27, 29 & 31 relating to taking cognizance as follows:

"27. In Narayandas Bhagwandas Madhavdas Vs. The State of West Bengal, , this Court considered the expression, "take cognizance of an offence" with reference to Section 190(1)(a) , 200 and 202 and held as under:

"28....As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under Section 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under Section 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance."

In Kishun Singh and Others Vs. State of Bihar, , while dealing with the expression "taking cognizance of an offence" the Court said that cognizance can be said to be taken by a Magistrate when he takes notice of the accusations and applies his mind to the allegations made in the complaint or police report or information and on being satisfied that the allegations, if proved, would constitute an offence, decides to initiate judicial proceedings against the alleged offender.

The above cases where the expression, "taking cognizance of an offence" for the purposes of the Code (old as well as new) has been explained have been noted by a two-Judge Bench of this Court in State of Karnataka and Another Vs. Pastor P. Raju, . The Court in Para 13 of the report referred to the distinction between "taking cognizance of an offence" and "issuance of process" and observed as under:

"13. ... Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out".

In Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, , the Hon''ble Supreme Court observed in Para-28 as follows:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused".

Therefore, it is clear that issuance of process should not be mechanical nor should be made an instrument of operation for needless harassment. The learned Magistrate has to find out whether the accused would be legally responsible for the offence charged with. The Court at that stage should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration, lest it would be an instrumental in the hands of the private complainant as vendetta to harass a person needlessly.

In Dilawar Singh Vs. State of Delhi, it is observed regarding delay in Para-8 as follows:

"8. In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case..."

In GHCL Employees Stock Option Trust Vs. India Infoline Ltd., , it is held, the only allegations against officers was that they were responsible for day to day affairs of company. No specific allegation made against officers. Order issuing summons against officers of accused company, unjustified.

It is laid down in Dr. Monica Kumar and Another Vs. State of U.P. and Others, that inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

It is well settled that the power under Section 482 Cr.P.C. has to be exercised by the High Court, inter alia, to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Where prim a facie case is not made out, the proceedings cannot be allowed to go on as it cannot but amount to abuse of process of the court; in such a case not quashing the proceedings would perpetuate abuse of process of the court resulting in great hardship and injustice to the accused.

In Satish Mehra Vs. State of N.C.T. of Delhi and Another, , it is held by the Hon''ble Supreme Court that where allegations do not disclose prima facie case and prosecution of accused would result in abuse of process then proceedings can be quashed either at early stage or at later stage.

In S.W. Palanitkar and others Vs. State of Bihar and another, , the Hon''ble Supreme Court observed that where in the complaint, no offence was made out against the accused, the Magistrate committed a manifest error in issuing process and the High Court erred in not invoking its inherent powers to correct that error.

Keeping the above principles of law relating to the case, now the points for consideration are to be dealt with.

It is the case of the respondent complainant that she was criminally assaulted by committing rape on 20.5.2004 by the Accused No. 1 (petitioner No. 1 in Crl. P. No. 6934/2014) and dashed his car to her two-wheeler on 28.5.2004. Both the offences under Section 376 & 307 IPC are cognizable and serious offences triable by Court of Sessions. The respondent complainant has not even mentioned the number of the vehicle in which she was traveling and the vehicle which hit her two-wheeler.

The respondent complainant has stated in her sworn statement that after the incident on 20.5.2004 the accused No. 1 was using her once in two days, three days, five days and 8 days. She has also stated in Page 3 of her sworn statement that on 28.5.2004 after he dashed her two-wheeler he himself took her in his car and got her admitted in Sathya Hospital and thereafter shifted to NIMHANS, there the doctor told that the complainant was alright and advised to take her. Both the accused No. 1 and his wife dropped the complainant to her house. Thereafter, Accused No. 1 visited the house of the complainant once in two days or three days. Thereafter, it is stated, once in a month, two months and eight months the accused No. 1 visited complainant and used her. She has stated that in 2006 she stopped Accused No. 1 from visiting to her house when he attempted to send others to her house, but Accused No. 1 used her from 2004 to 2006. It is also stated by the complainant that all the accused are friends of her husband.

The respondent complainant has also examined her son M. Manoj and in his sworn statement he has stated that out of the accused Ananda Reddy, Raju Reddy, Sridhar Reddy, Ananda Reddy and Raju Reddy were visiting their house and the shop. They used to take things on credit basis. In 2006 their shop was looted and they had broken the hand of his mother. On 23.5.2011 when himself and his mother were coming in the vehicle, Ananda Reddy and his friends teased them and his mother lodged complaint before Banasawadi Police Station.

From the above evidence, it is clear that there is no protest by the respondent - complainant when she was taken to Nandi Hills on 20.5.2004 and thereafter up to 2006 when she was used by the Accused No. 1 as per her own sworn statement and the averments made in the complaint. In a gap of 8 days that too when the respondent did not protest the Accused No. 1, it is not clear, why he tried to kill her by dashing his car to the two-wheeler of the complainant on 28.5.2004. If it is to be taken to create fear in the mind of the respondent complainant, the wound certificate dated 28.5.2004 from NIMHANS shows alleged to say fall from two-wheeler. Emergency Case record shows ''alleged to self fall from 2 wheeler''. The sworn statement and complaint averments are directly inconsistent with the documentary evidence i.e., the wound certificate. The wound certificate dated 28.11.2006 shows it related to alleged assault by Radhakrishnan, his son and friends 20m. number with stones.

None of the ingredients of offence of rape, such as, against her will, without her consent, with her consent putting fear on the person whom she is interested, with her consent, whom she believes to be married, with her consent when she was intoxicated and of unsound mind and with her consent when she is under 16 years could be gathered or made out from the case put-forth by the respondent complainant. So also the offence under Section 307 IPC as against Ananda Reddy (Accused No. 1). The statement of son of the complainant is not useful either in respect of offence under Section 376 or Section 307 of IPC as he has not stated anything attracting the offences under the said provisions.

To constitute an offence under Section 120B r/w Section 149 with which the petitioner in Crl. P. No. 6634/2014 and petitioners 2 to 6 in Crl. P. No. 6934/2014 are alleged with, there is neither specific allegation against each of the petitioners nor agreement between them to achieve an object of committing an illegal act. The common object stated to be to force her to vacate the shop. In this regard, an eviction suit in O.S. No. 27028/2007 was decreed on 1.10.2010 and by the judgment dated 20.7.2011 this High Court has granted one year six months time to vacate to the complainant respondent and the respondent resorted to file the complaint on 18.7.2011. The common object which has to be within the knowledge of other members as one likely to be committed in prosecution of the common object is not spelt out in the case on hand. The petitioners have not been even alleged to have forced her, threatened her, mislead her, persuaded her to go with Accused No. 1. So far their part in respect of offence u/s. 307 IPC, there is nothing. Therefore, there is no material brought out prima facie to attract the offence of conspiracy and common object as against the other petitioners. In the circumstances, the respondent complainant has failed to make out a prima facie case against the petitioners for proceeding further for the offences punishable under Sections 376 , 307 , 120B r/w. Section 149 IPC. Hence Point No. 1 is answered accordingly.

The learned Magistrate has very casually exercised the power under Sections 190 , 200 and 202 of the Code of Criminal Procedure and has acted in direct contravention of mandatory provisions of law, rendering the order taking cognizance illegal. Though there are no prima facie materials, learned Magistrate has mechanically issued process against the petitioners. From the order taking cognizance, it does not disclose whether the learned Magistrate has applied his mind that with the materials available on record, whether the respondent-complainant could bring home the charge. The delay in filing the complaint has not been considered by the learned Magistrate as to the satisfactory explanation or otherwise. The explanation sought to be given by the respondent-complainant cannot be accepted as the complainant respondent is not such an innocent lady who could deter to come before the Court or to the police, who undisputedly has already initiated number proceedings not only against the petitioners but also against others. Therefore, the petitioners threatened and controlled her from lodging/filing the complaint cannot be accepted. The averments made in the complaint and the sworn statement of the complainant and her son do not make out a case as against the petitioners. In the instant case, the learned Magistrate has opted to issue process recording the sworn statement of the complainant and her witness and not opted to refer the matter for investigation by the police. Therefore, the materials on record are only to be considered to form an opinion as to the prima facie case. If the matter had been referred for investigation by the Police, they could have recorded the statement of the witnesses, collected materials and submitted report. When the allegations do not constitute the offences alleged, it is the duty of this Court to interfere and exercise power under Section 482 of the Code of Criminal Procedure to prevent abuse of process of the Court and to secure ends of justice. Criminal Prosecution cannot be permitted to sort out other things. In the circumstances, I am of the view that this is a case where power under Section 482 of the Code of Criminal Procedure has to be exercised and proceedings before the court below are to be quashed. Accordingly, Point No. 2 is answered.

In the result, these petitions are allowed. The proceedings in CC No. 51188/2013 (PCR No. 195/2011) pending on the file of XI Additional Chief Metropolitan Magistrate, Bangalore is hereby quashed so far as the petitioners are concerned.