IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE P.S. DINESH KUMAR CRIMINAL PETITION No.2949 OF 2019 BETWEEN:
1. MR. ARUN CHARANTIMATH S/O RAJASHEKAR CHARANTIMATH AGED 63 YEARS NO.84, 5TH CROSS, 3RD MAIN RMV II STAGE, DOLLARS COLONY BANGALORE-560 094 2. MRS. SUJATHA CHARANTIMATH W/O ARUN CHARANTIMATH NO.84, 5TH CROSS, 3RD MAIN RMV II STAGE, DOLLARS COLONY BANGALORE-560 094 … PETITIONERS (BY SHRI. SRINIVAS RAGHAVAN, SENIOR ADVOCATE FOR SHRI. L. SRINIVAS, ADVOCATE) AND:
SERIOUS FRAUD INVESTIGATION OFFICE (SFIO), GOVERNMENT OF INDIA 2ND FLOOR, PARYAVARAN BHAVAN CGO COMPLEX NEW DELHI-110 006 ... RESPONDENT (BY SHRI. MADHUKAR DESHPANDE, ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO QUASH THE IMPUGNED ORDER DATED 16.04.2019 PASSED IN SPL.C.NO.376/2018 BY THE HON'BLE LXXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU DISMISSING THE DISCHARGE APPLICATION FILED BY PETITIONERS AND ALLOW THE DISCHARGE APPLICATION FILED BY THE PETITIONERS IN SPL.C.NO.376/2018 AND DISCHARGE THE PETITIONERS FROM THE SAID CRIMINAL PROCEEDINGS.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Serious Fraud Investigation Office (“SFIO” for short), Ministry of Current Affairs, Government of India filed a private complaint, which came to be registered as C.C.No.6907/2012 before I ACMM, Bengaluru, against four accused alleging commission of offences punishable under Sections 415, 420, 120A and 120B of IPC on the premise that accused had collected money and offered to allot sites in Vajragiri Township Project undertaken by Megacity (Bangalore) Developers & Builders Ltd.
2. Government, by Notification No.LAW 10 LCE 2018 constituted Special Court to deal exclusively with MPs & MLAs in the State of Karnataka. In pursuance of said Notification the case was transferred to LXXXI Additional City Civil and Sessions Judge, Bengaluru (CCH-82) and re-numbered as SPL.C.No.376/2018.
3. Petitioners filed an application under Section 227 of Code of Criminal Procedure (“Cr.P.C.” for short) seeking discharge. By order dated 16.04.2019, learned Special Judge has dismissed the said application. Hence, this petition.
4. Shri Srinivas Raghavan, learned Senior Advocate placing reliance on the decision in Ajoy Kumar Goshe V.s. State of Jharkhand and others1 contended that the view taken by the learned Special Judge in Paragraphs No.28 to 32 of the impugned order that the application for discharge can be considered after completion of prosecution evidence, is erroneous. Accordingly, he prayed for allowing this petition.
5. Shri Madhukar Deshpande, learned advocate appearing for the SFIO submitted that in Sunil Mehta and Another Vs. State of Gujarat and Another2, Supreme Court of India has considered the scope of Sections 244 to 246 of Code of Criminal Procedure and urged that evidence before charge is not necessary and the learned Special Judge can consider the application seeking discharge.
6. I have carefully considered rival contentions and perused the records.
1 MANU/SC/0406/2009 2 (2013) 9 SCC 209 7. In the conspectus of the submissions of the learned Senior advocate and learned standing counsel for SFIO, the point that arises for consideration is whether an application under Section 245(2) of Cr.P.C. is maintainable prior to recording evidence before charge.
8. Section 245 of Cr.P.C. reads as follows:
“245. When accused shall be discharged.-
(1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.”
(Emphasis supplied) 9. Section 245(2) is amply clear that learned Magistrate can consider application seeking discharge at any previous stage also.
10. In Ajoy Kumar Goshe (supra), it is held as follows:
“18. The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examination of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot given such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court. Under Section 203Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding. On the other hand, if he comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244Cr.P.C. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge. (Emphasis supplied) 11. Further in Paragraph No.20, it is held as follows:
20. ……………. We are convinced that underSection 245(2) Cr.P.C., the Magistrate can discharge the accused at any previous stage, i.e., even before any evidence is recorded under Section 244(1) Cr.P.C. In that view, the accused could have made the application. It is obvious that the application has been rejected by the Magistrate. So far, there is no difficulty.”
(Emphasis supplied) 12. Shri Deshpande has placed reliance on Paragraph No.12 of Sunil Mehta and Another (supra), which reads as follows:
“12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246has to be exercised on the basis of the evidence recorded under Section 244. The expression “when such evidence has been taken” appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to cross- examine the witnesses produced by the prosecution.”
(Emphasis supplied) 13. Shri Srinivas Raghavan is right in his submission that in Sunil Mehta and Another (supra), the Apex Court was considering a question whether deposition of complainant recorded under Chapter XV of Cr.P.C. before cognizance was taken by the learned Magistrate before recording evidence under Part B of Chapter XIX. However, it is relevant to note that in the case of Ajoy Kumar Goshe (supra), Section 245(2) has been dealt with elaborately and it is held that under the said proviso, Magistrate can discharge the accused at any ‘previous stage’ before evidence is recorded. Therefore, the impugned order is unsustainable. Resultantly, this petition merits consideration. Hence, the following;
ORDER (i) Petition is allowed;
(ii) Order dated 16.04.2019 passed in SPL.C.No.376/2018 passed by LXXXI Additional City Civil and Sessions Judge, Bengaluru, is set-aside; and (iii) Matter is remitted to LXXXI Additional City Civil and Sessions Judge, Bengaluru, to reconsider the application in accordance with law.
14. In view of disposal of the petition, all pending interlocutory applications do not survive for consideration and they stand disposed of.
No costs.
Sd/- JUDGE AV