IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 3 rd DAY OF JULY, 2014 BEFORE THE HONOURABLE MR. JUSTICE K.N.

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 3 rd DAY OF JULY, 2014 BEFORE THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA BETWEEN WRIT PETITION NO.85369/2013 (GM-RES) ASHOK KADAPPA JADAGOUD AGE: 54 YEARS, OCC: SR ASSISTANT PUBLIC PROSECUTOR BELGAUM... PETITIONER (BY SRI. ASHOK R KALYANASHETTY, ADV.) AND: 1. THE KARNATAKA LOKAYUKTA BY ITS LOKAYUKTA POLICE BELGAUM BELGAUM 2. SHRI.DIAGO DAVID GEORGE AGE: 36 YEARS, OCC: PVT. SERVICE R/O. C D GOOD EARTH, M SAX LILI, DONGARAWADO ARLEM, FATHODA MADGAON, GOA... RESPONDENTS (BY SRI. V. T. SONWALKAR, ADV. FOR R1; R2 SERVICE HELD SUFFICIENT V/O.D ) ---

2 2 THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA R/W. SECTION 482 OF CR.P.C. PRAYING TO QUASH THE ORDERS DTD AT ANNEXURE-D AND ANNEXURE-E IN CC NO. OF 370/2008 PASSED BY THE JMFC, KHANAPUR, REFERRING THE LETTERS/COMPLAINTS AT ANNEXURES- C AND E RESPECTIVELY TO LOKAYUKTA BELGAUM THE RESPONDENT-1 FOR INVESTIGATION, CONSEQUENTLY THE COMPLAINTS/LETTERS AT ANNEXURES-C AND E BOTH DTD , CONSEQUENTIAL PROCEEDINGS CLUMINATING INTO FIR AT ANNEXURE-H, CHARGE SHEET AT ANNEXURE-K AND THE ENTIRE PROCEEDINGS IN SPL. CASE NO.22/2013 ON THE FILE OF IV ADDL. SESSIONS JUDGE AND SEPCIAL JUDGE [PCA] LOKAYUKTA COURT BELGAUM. THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R The petitioner has approached this Court seeking quashing of the entire proceedings pending on the file of the IV Addl. Sessions Judge and Special Judge (Lokayukta) Court, Belgaum in Special Case No.22/ I have heard the arguments of the learned Counsel for the petitioner as well as the learned standing counsel for Lokayukta. Perused the records.

3 3 3. Some undisputed facts adverted to before this Court are, a person by name Diago, S/o. David George submitted a complaint in writing before the JMFC Khanapur making allegations that one Ashok Kadappa Jadagoud the petitioner herein, who was working as Assistant Public Prosecutor at CJM Court, Khanapur, has demanded a sum of Rs.1,000/- for the purpose of conducting the case of the complainant Diago George in C.C.No.370/2008, which was pending on the file of JMFC, Khanapur. On the basis of that complaint, the learned Magistrate has passed an order under Section 156(3) of the Cr.P.C. referring the same to the jurisdictional Lokayukta police for the purpose of investigation and report. It is also an undisputed fact that, after due investigation and after obtaining sanction order from the competent authority, Lokayukta police, Belgaum, submitted the charge sheet against the petitioner for the offences punishable under Section 7, 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P.C. Act, for short).

4 4 4. The learned Special Judge took cognizance of the said offence and issued process to the accused by registering a Special Case in No.22/2013. It is also an undisputed fact that the accused appeared before the said Court and was enlarged on bail. The charges have already been framed and now the case is set down for recording the evidence on the prosecution side. 5. Some legal questions have been raised by the learned Counsel for the petitioner. He contends that the Magistrate who referred the matter to the Lokayukta police for investigation under Section 156(3) of the Cr.P.C. had no competency to take cognizance under Section 190 of the Cr.P.C. If at all any such matter has been placed before him, he ought to have exercised the powers under Section 201 of the Cr.P.C., referring the matter to the jurisdictional Magistrate who has competency to take cognizance in appropriate proceedings. Instead of that, the learned Magistrate has referred the matter to the police, without having jurisdiction.

5 5 6. The learned Counsel further contends that the police could not have investigated the matter and the Magistrate also could not have entertained the complaint because the said complaint was not supported by a valid sanction order accorded by the competent authority in order to actually take cognizance or to refer the matter to the police for investigation. 7. Lastly, the learned Counsel contended that, the entire materials on record falls short of the allegations made against the petitioner, as no amount has been recovered at the instance of the petitioner and the alleged audio and video recording of the proceedings by the accused also not supporting the case of the prosecution. There was no proof for demand or payment of any bribe. Therefore, for all these reasons he prayed for quashing of the entire proceedings. 8. Contrary to this, learned Counsel for the Lokayukta submitted that there is no miscarriage of justice occasioned to the accused persons. Further added to that, charges have already been framed against the accused and he will get

6 6 sufficient opportunity before the Special Court to urge all his grounds. Therefore, at this stage the Court cannot quash the entire proceedings. He further contends that for the offence under the P.C. Act, any procedural irregularity should not be seriously taken into consideration and such procedural irregularities should be ignored for the purpose of rendering substantial justice. 9. In view of the above said submissions, now let me consider the grounds urged by the learned Counsel one by one. 10. The first and foremost ground raised by the learned Counsel for the petitioner is that, the complainant one Diago George submitted a complaint to the Judicial Magistrate First Class, Khanapur who could not have referred the matter to the police for investigation under Section 156(3) of the Cr.P.C. as he had no Jurisdiction. It is just and necessary to understand the powers of Magistrate under this Section 156(3) of the Cr.P.C. reads as under:

7 7 Section 156(3) Any Magistrate empowered under Section 190 may order such an investigation as above mentioned. Section 156(3) of the Cr.P.C. empowers the Magistrate to refer the complaint lodged for investigation to the police, when the Magistrate is empowered under Section 190 of the Cr.P.C. to take cognizance. In this regard, it is just and necessary to peruse Section 190 of the Cr.P.C., which reads thus: 190.Cognizance of offences by Magistrates.- (1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognizance of any offence - (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts;

8 8 (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. (d) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub-section (1) of such offences as are within his competence to inquire into or try. If it is properly understood, Section 190 of the Cr.P.C. discloses, under what circumstances the Magistrate can take cognizance of offences. The section is divided into three parts. The Magistrate who is empowered in this behalf under sub-section (2) may take cognizance of any offence, upon receiving the complaint of facts which constitute such offence upon the police report of such facts and upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

9 9 11. Therefore, the complaint lodged by the complainant in this particular case either should fall under Section 190(a) or under Section 190(c). If it is treated as a private complaint under Section 200 of the Cr.P.C., it will fall under Section 190(a) of the Cr.P.C. If it is not a private complaint filed before the Magistrate and if a simple report is submitted to the Magistrate without invoking the provision under Section 200 of the Cr.P.C, then it will fall under Section 190(c) of the Cr.P.C, because Section 190(c) of the Cr.P.C. also imposes a responsibility on the Magistrate that, even if an offence being committed comes to the knowledge of the learned Magistrate otherwise than on a private complaint under Section 190(a), then also the Magistrate gets jurisdiction either to take cognizance of the offence or to refer the matter to the jurisdictional police for investigation. Here, the distinction which has to be made meticulously by the Court is that, whether such an information received by the Magistrate falls under Section 200 of the Cr.P.C. or it is only a simple information of any offence made to the Magistrate to

10 10 take action against the offenders. If an information is received by the Magistrate on his own or through any person, the Magistrate need not register the case as a private complaint under Section 200 of the Cr.P.C. but he can directly refer the said matter to the police for investigation. In that event police have to investigate as if a case informed to them under Sec.154 of CR.P.C. 12. Be that as it may, for the purpose of doing all these acts, as contended by the learned Counsel for the petitioner, the Magistrate should be empowered to take cognizance for the said offence. It is argued by the learned Counsel for the petitioner that the allegations made in the complaint or the report submitted by Mr. Diago George discloses commission of an offence under the P.C. Act where the Magistrate has absolutely no jurisdiction either to take cognizance by himself or to refer the matter to the police for investigation and therefore, he contends that, under Section 190 of the Cr.P.C., though the learned Magistrate has no jurisdiction, he has taken cognizance.

11 By reading Section 190 of the Cr.P.C. once again, if the Magistrate wants to take cognizance, then he can directly take cognizance by registering the complaint even on the oral complaint lodged by any person under Section 200 of the Cr.P.C. and either he can proceed himself with the complaint or if he finds that he has no competency to take cognizance of the said offence which falls beyond his jurisdiction, then he has to invoke the provisions under Section 201 of the Cr.P.C. Section 201 of the Cr.P.C. reads as follows: 201.Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, - (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect;

12 12 (b) if the complaint is not in writing, direct the complainant to the proper Court. This provision clearly empowers the Magistrate who is not competent to take cognizance of the offence to return it for presentation to the proper Court with an endorsement to that effect if the complaint is in writing (as in this particular case). According to the learned Counsel for the petitioner, the Magistrate ought to have referred the complainant either to the competent police to lodge his complaint or make the complaint before the Court which has competency to take cognizance and refer the matter to the police under Section 156(3) of the Cr.P.C. As rightly contended by the learned Counsel, this mandatory provision has not been followed by the learned Magistrate in this particular case. 14. Now the question that arises before this Court is, whether the said act of the Magistrate in referring the case to the concerned police is a mere irregularity which is curable or it is an illegality which is not curable in nature and it vitiates the entire proceedings which is still pending before

13 13 the jurisdictional Court. There is no dispute that the Court which has taken cognizance for the offence i.e., the Special Court, has not committed any error in taking cognizance. 15. In this background, let me see what Section 460 of the Cr.P.C. says, which reads as under: 460.Irregularities which do not vitiate proceedings.- If any Magistrate not empowered by law to do any of the following things, namely:- (a) (b) (c). (d). (e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of section 190; (f).. (g).. (h).. (i).., erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered.

14 14 Section 460 of Cr.P.C. refers to the irregularities which do not vitiate proceedings. If this particular provision is meaningfully understood, the Magistrate who has no competency to take cognizance under Section 190 of the Cr.P.C. but assuming that he has got jurisdiction or empowered to take cognizance, either takes cognizance or refers the matter to the police under Section 156(3) of the Cr.P.C. then if that act of the Magistrate has been done in good faith, it does not vitiate the proceedings. Though Section 156(3) of the Cr.P.C. has not specifically referred to Section 460 of the Cr.P.C. but according to me, when the provisions under Section 190 of the Cr.P.C. is referred to, it encompasses Section 156(3) of the Cr.P.C. also. Section 156(3) of the Cr.P.C. can be read into Section 460 of the Cr.P.C. because, Section 190 of the Cr.P.C. empowers the Magistrate to take cognizance of offences under the circumstances specified under it and in turn empowers the

15 15 Court to refer the compliant for investigation under Section 156(3) of Cr.P.C. 16. In this background, if Section 460 of the Cr.P.C. is applied, the Court has to see whether the act of the Magistrate in referring the matter to the police under Section 156(3) of the Cr.P.C. for investigation and report is done in good faith or whether the act of the Magistrate is intentional, deliberate in order to harass the accused person or in order to do any illegal act knowing fully well that he is doing an illegal act. These are the questions crop up for consideration. In the case on hand, there is absolutely no such allegation made in the petition that the act of Magistrate is deliberate or intentional in referring the matter to the jurisdictional police. Further added to that, though Section 190 of the Cr.P.C. encompasses the power of the Magistrate nevertheless, if a person goes to the Court and gives a complaint to the Magistrate and if the Magistrate without registering it as a criminal complaint under Section 200 of the Cr.P.C., merely refers the same to the

16 16 jurisdictional police and direct the party to approach the police for his further remedies and the investigation has to be done by the jurisdictional police, one cannot find any fault with that Magistrate because even any ordinary person also would have done the said act. But in this case, the Magistrate has not done like that, but he erroneously registered a PCR case in his Court and referred the matter to the jurisdictional police, that is the only the irregularity committed by the Magistrate. Moreover, the order sheet of the proceedings on the file of the Judicial Magistrate, Kahnapur shows that the case was registered under Sections 472 and 473 of the IPC. Section 472 and 473 of IPC refers to making or possessing counterfeit seal, etc., with intent to commit forgery punishable otherwise. These two offences are punishable with imprisonment, which may extend to seven years and with fine. As per Schedule I appended to the Cr.P.C. both the offences are bailable and triable by the Magistrate of First Class. When these two provisions are invoked, the Magistrate might have confused himself whether

17 17 he has got jurisdiction or competence to refer the matter to the jurisdictional police though the allegations of corruption alleged in the body of the complaint. Sections 472 and 473 of the IPC empowers the Magistrate to take cognizance under Section 190 of the Cr.P.C. and also refer the matter to the jurisdictional police under Section 156(3) of the CR.PC. Therefore, the learned Magistrate might be in that erroneous impression must have referred the matter for investigation to the jurisdictional police. 17. Therefore at the initial stages, considering the above said facts and circumstances of the case, I am of the opinion there is no illegality committed by the learned Magistrate which can be taken note by this Court to quash the entire proceedings. It can be in my opinion, treated as irregularity which is curable in nature. 18. Further added to the above, after reference, the Lokayukta Police have not submitted the charge sheet before the same Court for the purpose of taking cognizance. The police after getting the reference of the complaint under

18 18 Section 156(3) of the Cr.P.C. are supposed to file the charge sheet before the same Court which referred the matter to it. But once the matter is referred to the police under Section 156(3) of the Cr.P.C., it is entirely the domain on the part of the police to take appropriate action. The Court gets no jurisdiction or competency to interfere with the investigation. There is no bar for the Investigating Officer to ascertain whether the Court which referred the matter has got jurisdiction to deal with the matter or not. If the Investigating Officer is of the opinion that the Court which referred the matter for investigation had no jurisdiction, then in my personal opinion, that reference of the complaint by the jurisdictional Magistrate can only be treated as First Information Report as if it is filed under Section 154 of the Cr.P.C. and the police can definitely investigate into the matter and submit the charge sheet before the competent Court having jurisdiction to take cognizance and deal with the matter. In this case Lokayukta Police have legally filed

19 19 the charge sheet before the Special Court which has Jurisdiction to take cognizance. 19. Therefore, whatever the irregularity that has been done by the learned Magistrate, in my opinion, is curable and the same was subsequently cured by lodging the charge sheet before the competent Court. The act of referring the matter for investigation is done by the learned Magistrate in good faith because the Magistrate wanted to take action against the culprit in accordance with law and not more than that. Therefore, when the complaint lodged before the Magistrate is referred to the police, if there is any irregularity or illegality and without competency that may be treated as First Information Report under Section 154 of the CR.P.C. as if directly lodged before the police, Therefore, I do not find any strong reasons to draw any inference that the Magistrate has committed any illegality. 20. The second question raised by the learned Counsel is that, while referring the matter for investigation, the Magistrate has not looked into the fact that the sanction

20 20 order has not been obtained by the complainant. This in my opinion need not be elaborately discussed by this Court. In the latest pronouncement of the Hon ble Apex Court, it is held that even for the purpose of filing a private complaint or before referring the matter, the Magistrate has to look into whether the complaint is maintainable without a valid sanction order. But in this particular case, as I have already referred to, the Magistrate has no jurisdiction to take cognizance of the matter and the Magistrate has no jurisdiction to refer the complaint to the police for investigation. As I have already discussed above that the complaint filed by the complainant was only transmitted to the police having competent jurisdiction to investigate the matter. Therefore, it cannot be said that the Magistrate has referred the matter for the purpose of investigation having jurisdiction or competency to take cognizance. When the Magistrate has no jurisdiction to take cognizance or has no competency to deal with the matter, then there is no need for the Magistrate to look into whether the sanction order has

21 21 been taken by the complainant or not. Therefore, it becomes necessary for the Investigating Officer to investigate the matter treating the said complaint referred by the Magistrate as if the First Information Report under Section 154 of the Cr.P.C. In that event, the investigation can be conducted and the Court which is empowered to take cognizance of the matter has to look into whether the charge sheet is accompanied by a sanction order or not. In this particular case, there is absolutely no dispute that the charge sheet is accompanied by a valid sanction order. Therefore, I do not find any merit in the contention raised by the learned Counsel in this regard. 21. Last but not the least, the contention raised by the learned Counsel is that, even considering the merits of the case, no case is made out against the petitioner. However, I do not want to discuss anything on this particular point. If I make any observation on the merits or demerits of the case, it will have its own impact on the trial Court and prejudice may be caused to either of the parties.

22 Therefore, I am of the opinion, none of the grounds urged before this Court are sufficient to quash the entire proceedings which is pending before the Sessions Court. The trial Court has already framed charges against the accused persons and the matter is pending before the trial Court since the year Hence, it is just and necessary to direct the trial Court to dispose of the case as early as possible. Therefore, I proceed to pass the following order: ORDER The petition is dismissed. However, a direction is issued to the trial Court to expedite the matter and dispose of the case as early as possible not exceeding six months from the date of receipt of this order. Forthwith send a copy of this order to the trial Court. gab/- Sd/- JUDGE