IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO.59579 OF 2016 (GM-RES) BETWEEN:
CHANDRAMOHAN S/O LATE B.V.ASHWATHNARAYANA AGED ABOUT 63 YEARS OCC: ADVOCATE R/AT NO.35, 1ST CROSS GARDEN VILAS NAGARABAVI ROAD BENGALURU – 560 072 … PETITIONER (BY SRI C.R.RAGHAVENDRA REDDY, ADVOCATE) AND:
STATE OF KARNATAKA BY YELAHANKA NEW TOWN POLICE REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU – 560 001 … RESPONDENT (BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 18.10.2016 (ANNEXURE-J) PASSED BY THE CHIEF METROPOLITAN MAGISTRATE AT BENGALURU IN C.C.NO.2272/2008 AND TO DIRECT THE ASSISTANT COMMISSIONER OF POLICE OR ANY OTHER HIGHER OFFICER OF THE RESPONDENT POLICE TO CONDUCT THE FURTHER INVESTIGATION.
THIS WRIT PETITION IS COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner is aggrieved by the order dated 18.10.2016 passed by the Chief Metropolitan Magistrate, Bengaluru in CC.No.2272/2008.
2. Heard learned Counsel for petitioner and learned Additional SPP appearing for respondent. Perused the impugned order.
3. Petitioner herein lodged a complaint against four accused persons alleging commission of offences under Sections 379, 468, 471, 420, 506 read with Section 34 of IPC. On completion of investigation, Investigating Officer submitted a chargesheet only against accused No.2. Accused Nos.1, 3 and 4 were dropped. Before the trial Court, charges were framed against accused Nos.2 and three witnesses were examined on behalf of the prosecution. At that stage, the complainant/petitioner herein filed an application under Section 173(8) of Cr.P.C. The said application was allowed on 19.09.2011 and the Investigating Officer was directed to conduct further investigation. However, on 08.05.2015 the Investigating Officer submitted a report stating that there was no sufficient evidence to chargesheet accused Nos.1, 3 and 4 for the alleged offences. The said report was objected to by the complainant and after hearing, the learned Magistrate rejected the objections filed by the complainant and granted liberty to the complainant to produce oral and documentary evidence on his behalf in respect of left out accused persons under Section 319 of Cr.P.C.
4. Learned Counsel for the petitioner submits that in the wake of specific allegations that accused No.1 committed theft of the original sale deed from the house of the complainant and on the strength of a forged general power of attorney, the subject matter of the sale deed was transferred from accused No.2 to accused No.1, the order passed by the trial Court is patently illegal and deserves to be quashed.
5. It is the submission of the learned Counsel for the petitioner that having regard to the nature of the allegations made against the accused, it was incumbent upon the Investigating Officer to recover the original sale deed and the forged power of attorney; that having not been done, the Investigating Officer has submitted a false report before the Court stating that no sufficient evidence was available to proceed against accused Nos.1, 3 and 4. He has placed reliance on the decision in the case of G.H.NAGARAJAIAH SETTY vs STATE OF HENNUR POLICE reported in ILR 1999 KAR 2388 and the decision of the Hon’ble Supreme Court in the case of HASANBHAI VALIBHAI QURESHI v. STATE OF GUJARAT reported in (2004)5 SCC 347 and emphasized that it is the province of the Magistrate to direct further investigation in backdrop of the above facts. In other words, the contention of the learned Counsel is that when the investigation itself is found improper, Section 319 of Cr.P.C. cannot salvage the situation, thus it is argued that the Courts below have committed an error in rejecting the objections filed by the complainant/petitioner herein.
6. Learned Additional SPP appearing for respondent however has argued in support of the impugned order contending that the Investigating Officer having come to the conclusion that no further material was available in proof of the involvement of accused Nos.1, 3 and 4, the only course open for the complainant is to enter the witness box and produce necessary evidence in proof of involvement of accused Nos.1, 3 and 4 under Section 319 of Cr.P.C., that having not been done, the complainant is not entitled to raise grouse against the Investigating Officer and thus prayed for dismissal of the petition.
7. Considered the rival submissions and perused the record.
8. The facts narrated above clearly indicate that based on the application filed by the complainant herein, the learned Magistrate had directed further investigation. The Investigating Officer has submitted a report dated 08.05.2015 to the effect that no sufficient evidence was available to chargesheet accused Nos.1, 3 and 4. In the said circumstances, in the absence of any material to point out the involvement of accused Nos.1, 3 and 4, the learned Magistrate could not have proceeded against the left out accused. In such situation, no purpose would be served in directing the Investigating Officer to once again to investigate into the alleged offences. In this fact situation, in my view, Section 319 of Cr.P.C. is the only remedy.
9. Section 319 of Cr.P.C. empowers the Court at any stage of inquiry, trial or an offence to proceed against any person, not being the accused named in the chargesheet. Even though, the complainant has been contending that the left out accused were also responsible for committing forgery, complainant has not produced any prima facie material in proof of these accusations. The Investigating Officer has also failed to collect any material in proof of the involvement of accused Nos.1, 3 and 4 in the alleged act of theft and forgery. In the said circumstances, the trial Court was justified in rejecting the objections and granting liberty to the petitioner to adduce necessary evidence before the Court in respect of the left out accused persons so that, the Court could proceed in the matter in accordance with Section 319 of Cr.P.C. In that view of the matter, no justifiable grounds are made out to exercise the inherent powers under Section 482 of Cr.P.C. Consequently, the petition fails and is accordingly dismissed.
Sd/- JUDGE LB