IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF AUGUST, 2017 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRL.P.No.3510/2017 C/W CRL.P.Nos.3511/2017, 3512/2017, 3513/2017 AND 3514/2017 IN CRL.P.NO.3510/2017 BETWEEN:
1. DR.L.VEENA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, DIRECTOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
2. SMT. BHAKTIPREETA DUTTA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, COUNCELLOR/CO-ORDINATOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
[BY SRI CHANDRAMOULI H.S., ADV.,) AND:
1. THE STATE OF KARNATAKA BY THE POLICE OF MARATHALLI POLICE STATION, BENGALURU – 571 102.
REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, … PETITIONERS BENGALURU – 560 001.
2. SARASWATHI B W/O VAMSI KRISHNA P., AGE:31 YEARS, R/AT #AF08, A BLOCK, BANYAN TREE APARTMENT, KARIYAMMANA AGARAHARA, BENGALURU CITY – 560 103.
… RESPONDENTS (BY SRI B.T.VENKATESH, SPL.PP FOR R1; SRI SUNIL S.RAO, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN CR.NO.14/2017 REGISTERED ON THE FILE OF THE RESPONDENT NO.1/MARATHALLI P.S., BANGALORE FOR THE OFFENCE P/U/S 4, 6, 8, 10, 12 OF POCSO ACT AND SEC.377, 188 R/W 34 OF IPC, NOW PENDING ON THE FILE OF LIV ADDL. CITY CIVIL AND S.J., (CCH – 55), BANGALORE IN SO FAR AS PETITIONERS ARE CONCERNED.
IN CRL.P.NO.3511/2017 BETWEEN:
1. DR.L.VEENA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, DIRECTOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
2. SMT. BHAKTIPREETA DUTTA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, CO-ORDINATOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
3. SMT. AYISHA SANGTARAS W/O SHAKIL, AGED ABOUT 40 YEARS, CLASS TEACHER, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
… PETITIONERS [BY SRI CHANDRAMOULI H.S., ADV.,) AND:
1. THE STATE OF KARNATAKA BY THE POLICE OF MARATHALLI POLICE STATION, BENGALURU – 571 102. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001.
2. MRS. SNEHA GUPTA W/O SHARADH SINGLA, AGE: MAJOR, R/AT #102, MATHRUSHREE ORCHID HOMES, KEMPAPURA MAIN ROAD, YAMALUR, BENGALURU CITY – 560 037.
… RESPONDENTS (BY SRI B.T.VENKATESH, SPL.PP FOR R1; SRI SUNIL S.RAO, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN CR.NO.15/2017 REGISTERED ON THE FILE OF RESPONDENT NO.1/MARATHALLI P.S., BENGALURU CITY FOR THE OFFENCES P/U/S 4, 5, 6, 8, 10, 12 AND 17 OF POCSO ACT, 2012 AND SEC.376 AND 188 R/W 34 OF IPC PENDING ON THE FILE OF LIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH – 55), BENGALURU CITY.
IN CRL.P.NO.3512/2017 BETWEEN:
1. DR.L.VEENA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, DIRECTOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
2. SMT. BHAKTIPREETA DUTTA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, COUNCELLOR/CO-ORDINATOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
… PETITIONERS [BY SRI CHANDRAMOULI H.S., ADV.,) AND:
1. THE STATE OF KARNATAKA BY THE POLICE OF MARATHALLI POLICE STATION, BENGALURU – 571 102. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001.
2. VIKASH JALAN S/O KAILASH JALAN, AGE: 38 YEARS, R/AT FLAT #812, PRESTIGE SILVER CHEST, OUTER RING ROAD, KARIYAMMANA AGARAHARA, BENGALURU CITY – 560 103.
… RESPONDENTS (BY SRI B.T.VENKATESH, SPL.PP FOR R1; SRI SUNIL S.RAO, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN CR.NO.16/2017 REGISTERED ON THE FILE OF RESPONDENT NO.1/MARATHALLI POLICE 8, 9, 10, 11, 12 AND 17 OF POCSO ACT, 2012 AND SEC.188 R/W 34 OF IPC, NOW PENDING ON THE FILE OF LIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH – 55), BENGALURU CITY, IN SO FAR AS PETITIONERS.
IN CRL.P.NO.3513/2017 BETWEEN:
DR.L.VEENA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, DIRECTOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
… PETITIONER [BY SRI CHANDRAMOULI H.S., ADV.,) AND:
1. THE STATE OF KARNATAKA BY THE POLICE OF MARATHALLI POLICE STATION, BENGALURU – 571 102. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001.
2. AMAR KUMAR CHOUDHARY S/O SURESH CHOUDHARY, AGE: 36 YEARS, R/AT #C-1002, MANTRI ESPANA, KARIYAMMANA AGARAHARA, BENGALURU CITY – 560 103.
MANTRI ESPANA, KARIYAMMANA AGRAHARA, BENGALURU CITY – 560 103.
… RESPONDENTS (BY SRI B.T.VENKATESH, SPL.PP FOR R1; SRI SUNIL S.RAO, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN CR.NO.17/2017 REGISTERED ON THE FILE OF THE RESPONDENT NO.1/MARATHALLI POLICE STATION, BANGALORE FOR THE OFFENCE P/U/S 4, 6, 8, 10, 12 OF POCSO ACT AND SEC.377, 188 R/W 34 OF IPC, NOW PENDING ON THE FILE OF LIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH – 55), BANGALORE IN SO FAR AS PETITIONERS ARE CONCERNED.
IN CRL.P.NO.3514/2017 BETWEEN:
1. DR.L.VEENA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, DIRECTOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
2. SMT. BHAKTIPREETA DUTTA W/O C.M.ASHOK, AGED ABOUT 36 YEARS, COUNCELLOR/CO-ORDINATOR, KIDZEE PRE SCHOOL, KARIYAMMANA AGRAHARA, BENGALURU – 560 103.
(BY SRI CHANDRAMOULI H.S., ADV.,) … PETITIONERS AND:
1. THE STATE OF KARNATAKA BY THE POLICE OF MARATHALLI POLICE STATION, BENGALURU – 571 102. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU – 560 001.
2. MRS. SHURLLY TIWARI W/O SAURABH TIWARI, AGE: 37 YEARS, R/AT #B 001, MANTRI ESPANA, KARIYAMMANA AGARAHARA, BENGALURU CITY – 560 103.
… RESPONDENTS (BY SRI B.T.VENKATESH, SPL.PP FOR R1; SRI SUNIL S.RAO, ADV., FOR R2) THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO QUASH THE FIR AND COMPLAINT IN CR.NO.19/2017 REGISTERED ON THE FILE OF RESPONDENT NO.1 MARATHALLI POLICE STATION, BANGALORE FOR THE OFFENCE P/U/S 4, 6, 8, 10, 12 OF POCSO ACT AND SEC.377, 188 R/W 34 OF IPC, NOW PENDING ON THE FILE OF CITY COURT, COMPLEX, (CCH – 55), BANGALORE IN SO FAR AS PETITIONERS ARE CONCERNED.
THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioners who have been arraigned as accused in Cr.Nos.14/2017, 15/2017, 16/2017, 17/2017 and 19/2017 registered by Marathahalli Police Station for the offences punishable under Sections 376, 377, 188 read with Section 34 of IPC and Sections 4, 6, 8, 9, 10, 11, 12 and 17 of Protection of Children from Sexual Offences Act, 2012 are praying for said proceedings being quashed.
2. Gist of the prosecution case is:
Information came to be furnished by respondent No.2 (informants) in the respective petitions alleging that accused No.1 had subjected their daughter/son to sexual abuse who were attending Kindergarten or Pre- Nursery classes in KIDZEE Pre School situated at Kariyamanna Agrahara, Bengaluru and same had occurred due to negligence of the Principal/ Receptionist/ Staff/ Management of said school. Hence, complaints came to be lodged by the parents/ guardians of such children before the jurisdictional police and said complaints came to be registered in the respective crime numbers as noticed hereinabove.
3. It was also alleged by the complainants that their children were reluctant to attend school and used to weep exhibiting fear and on enquiry they had revealed that one Sri. Manjunath – Accused No.1 who is working as transport in-charge at school used to touch their private parts in the toilet. Hence, parents of the children sought for appropriate legal action being taken against accused No.1 who had sexually abused their children and they also sought action against the Management namely, petitioners herein for committing breach of safety norms and regulations namely, allowing a male person to enter school premises and abuse their children. Said complaints came to be registered in the crime numbers as already noticed hereinabove and investigation has commenced. Petitioners who are Principal, Counsellor and Staff have approached this Court by filing these petitions for quashing of said proceedings initiated against them.
4. I have heard Sri. H.S. Chandramouli, learned Advocate appearing for petitioners, Sri. B.T. Venkatesh, learned Special public Prosecutor appearing for respondent No.1 and Sri. Sunil S. Rao, learned Advocate appearing for respondent No.2-complinant. Perused the records including the records relating to the investigation made available by the learned Special Public Prosecutor during the course of his arguments.
5. Facts in brief which would emerge from the FIR are as under:-
2nd respondent in these petitions who are complainants have lodged complaints on 23.02.2017 alleging their daughter/son studying at KIDZEE, Belandur had refused to go to school out of fear and on enquiry they revealed that one Mr.Manju Bayya had pulled their cheeks, touched their thighs and also other private parts and as such, alleging sexual abuse of their children and attributing negligence on the part of school authorities since they had not taken due care for safety of children and had not installed safety measures, they sought for suitable action being taken not only against said Manju Bayya but also against petitioners. Said complaints came to be registered in Crime No.14/2017, 15/2017, 16/2017, 17/2017 and 19/2017 for the offences punishable under Sections 4, 6, 8, 9, 10, 11, 12 and 17 of POSCO Act, 2012 and under Sections 376, 377, 188 read with Section 34 of IPC against Manju Bayya (Accused No.1) and the Principal, Co-ordinator and Class teacher (Accused Nos.2, 3 and 4, respectively).
6. For the purpose of immediate reference, details of Crime number, date of registration of complaints, offences alleged and rank of accused persons are tabulated herein below:
7. It is the contention of Sri.Chandramouli, learned counsel appearing for petitioners that only offence alleged against the petitioners is the offence punishable under Section 188 of IPC, namely disobedience of the order duly promulgated by a public servant, causing obstruction, annoyance or injury to any person lawfully employed and for an offence punishable under Section 188 of IPC, complaint has to be lodged only by a public servant and cognizance can be taken by the jurisdictional Court only in the event of such complaint being in conformity with Section 195 of Cr.P.C namely such complaint having been filed by a public servant. He states that such recourse having not been taken, jurisdictional police would have no power to register the case for said offence and investigate into the matter. In support of his submission, he has relied upon following judgments:
1. Unreported judgment of this Court rendered in Crl.P. No.4597/2017 on 12th June 2017 2. C.MUNIAPPAN AND OTHERS VS. STATE OF TAMIL NADU AND D.K.RAJENDRAN AND OTHERS VS. STATE OF TAMIL NADU reported in [2010] 9 SCC 567 8. Per contra, Sri.B.T.Venkatesh, learned Special Public Prosecutor appearing for State would support the initiation of prosecution against petitioners and contends that at the stage of investigation, issue regarding violation of Section 195(2) would not arise and it is only at the stage of cognizance being taken by the jurisdictional Court, said issue can be pressed into service and as such, he contends that investigation cannot be stalled and it requires to be proceeded with particularly in view of affidavit filed in the present proceedings by the Investigating Officer which primafacie discloses that petitioners are guilty of an offence punishable under Section 21 of POCSO Act and investigating officer has reasonable belief that petitioners have committed said offence. Hence, he prays for rejection of these petitions. Sri. Sunil Rao, learned counsel appearing for respondent-2 in Crl.P.Nos.3510/17, 3511/2017 & 3512/2017 has also supported the prosecution and prays for dismissal of these petitions.
9. Having heard the learned advocates appearing for parties and on perusal of case papers, it would disclose that only offence alleged against petitioners is an offence punishable under Section 188 of IPC. The provisions of Sections 6, 8, 9, 10, 11, 12 & 17 of POCSO Act, 2012 and Sections 377 and 188 of IPC has been pressed into service by the prosecution against accused No.1 only. The allegations made in the complaints would also disclose that one Mr.Manju Bayya alias Manjunath came to be employed by the petitioners in the School run by 1st petitioner under name and style as KIDZEE and he has been working in the said school as a Transport Assistant. In fact, petitioners before employing him, as per the mandate of instructions issued by the educational authorities, had informed the jurisdictional police about his proposed employment with them. The office of the Commissioner of Police, Bangalore by communication dated 30.12.2014 had informed the Principal of the School in question to the effect that his character and antecedents had been verified from the concerned police station records and had not found any adverse remarks against him. A perusal of said communication produced by petitioners’ counsel on 11.08.2017 would disclose that name of accused No.1 finds a place at Sl.No.17, which would disclose that jurisdictional police on enquiry and verification have entered in the remarks column as under:-
“There are no Adverse remarks in HAL Police Station records.”
10. Above said communication would disclose that petitioners had taken all reasonable steps as expected of a responsible management of a School namely, they ascertained the character and antecedents of the person whom they were employing and only on such verification carried out and certification done by the office of Commissioner of Police certifying there was no adverse remarks or adverse report about his antecedents, School Management had employed him (Manjunath-A-1).
11. Said person i.e., Manjunath-Accused No.1 who was working as a Transport Assistant in the school during the course of discharge of his duties, is said to have molested or abused the children who were attending the school on various dates and that too who are of tender age ranging from two years to five years. However, he is not before this Court and it is stated by learned SPP that he is in judicial custody.
12. Be that as it may. The issue that would arise for consideration in these petitions is whether petitioners are also to be held responsible for such acts of accused No.1? and, whether they had undertaken such reasonable care and caution in this regard to prevent the commission of such offence by accused No.1? and, if not whether further proceedings against petitioners should be quashed or not?
13. There is no dispute to the fact that jurisdictional educational officers had accorded their sanction/approval for running the School and there has been no adverse remarks against the School at any point of time. It is only during February 2017 complaints in question came to be lodged alleging negligence on the part of school authorities.
14. In the above background, when FIR’s in question along with affidavit of Investigating Officer are perused, it would disclose that prosecution is alleging that petitioners/accused persons are liable to be prosecuted for the offences punishable under Section 188 of IPC (as per FIR) and Section 21 of POCSO Act (as per affidavit of Investigating Officer. However, as on date Section 21 of POCSO Act is not invoked against the petitioners.
15. Perusal of the FIRs registered against the petitioners and referred to hereinabove would disclose that complaint came to be registered against the accused persons including the petitioners herein for the offences punishable under Sections 4, 6, 8, 9, 10, 11, 12 and 17 of POCSO Act, 2012 and Sections 376, 377 and 188 read with Section 34 of IPC.
16. Be that as it may. The affidavit dated 22.08.2017 filed by the Investigating Officer would disclose that prosecution intends to press Section 21 of POCSO Act against the petitioners on the ground that material collected during the course of investigation, it has come to the light of the Investigating Officer that the administration of the school had failed to follow the directions issued by the Commissioner of Police, Bangalore, and management have been negligent in communicating the incident to the jurisdictional Police, and said offence is punishable under Section 21 of POCSO Act. As such, the Investigating Officer has sought for vacating the order of stay to enable him to proceed with the investigation. Thus, the prosecution has been candid in submitting before the Court that the offences, to which, the petitioners are liable to be prosecuted is only for the offences punishable under Section 188 of IPC and Section 21 of POCSO Act.
17. Section 188 of IPC reads as under:
“188. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section”.
A bare reading of abovesaid provision would disclose that when there is disobedience to an order lawfully promulgated by a public servant, causing obstruction, annoyance or injury, to any person lawfully employed, would be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both.
18. Section 21 of POCSO Act now pressed into service reads as under:
“21. Punishment for failure to report or record a case. – (1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or who fails to record such offence under sub-section (2) of section 19 shall be punished with imprisonment of either description which may extend to six months or with fine or with both.
(2) Any person, being in-charge of any company or an institution (by whatever name called) who fails to report the commission of an offence under sub- section (1) of section 19 in respect of a subordinate under his control, shall be punished with imprisonment for a term which may extend to one year and with fine”.
A bare reading of above provision would clearly disclose that any person who fails to report the commission of an offence under Section 19(1) or Section 20 or who fails to record such offence under Section 19(2) would be liable to be punished with imprisonment up to six (6) months or fine or both. Sub-section (2) would indicate that any person in charge of any company or an institution fails to report the commission of an offence under Section 19(1) in respect of a subordinate under his control would be liable to be punished with imprisonment up to one (1) year and fine.
19. If there is disobedience to an order lawfully promulgated by a public servant as indicated under Section 188 of IPC, it is the public servant who would be aggrieved of such act and he would be empowered to file a private complaint. Section 195 of Cr.P.C., clearly indicates that no Court would be empowered to take cognizance of any offence punishable under Sections 172 to 188 (both inclusive) of IPC, except on a complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. In the absence of private complaint having been lodged by a public servant, if cognizance is being taken, it becomes illegal and proceedings thereto void ab initio.
20. In the light of said position of law, the incidental question that would arise for consideration by this Court is whether prosecution would be entitled to contend before this Court that matter is still at the stage of investigation or it is at pre-cognizance stage and as such, this Court should not exercise its jurisdiction under Section 482 of Cr.P.C. There cannot be any dispute with regard to the proposition with the jurisdiction of this Court to exercise power under Section 482 Cr.P.C., to quash proceedings at any stage if continuation of such proceedings would be an abuse of process of law. If it is void at the initial stage itself and continuation of the proceedings would not sub- serve the ends of justice or it would be an exercise in futility, then this Court can definitely step in and exercise its power under Section 482 to quash the proceedings.
21. The Hon’ble Apex Court in the case of C.Muniappan and Others Vs. State of Tamil Nadu and D.K.Rajendran and others Vs. State of Tamil Nadu reported in (2010) 9 SCC 567 has held Section 195(1)(a)(i) Cr.P.C. bars the Court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same unless there is a written complaint by the public servant. It has been further held:
“28. Section 195(1)(a)(i) Cr.P.C., bars the court from taking cognizance of any offence punishable under Section 188 IPC or abetment or attempt to commit the same, unless, there is a written complaint by the public servant concerned for contempt of his lawful order. The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant. The court lacks competence to take cognizance in certain types of offences enumerated therein. The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill- will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 Cr.PC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by some particular authority or person. Other provisions in the Cr.P.C., like Sections 196 and 198 do not lay down any rule of procedure, rather, they only create a bar that unless some requirements are complied with, the court shall not take cognizance of an offence described in those Sections. (vide Govind Mehta v. The State of Bihar, AIR 1971 SC 1708; Patel Laljibhai Somabhai v. The State of Gujarat, AIR 1971 SC 1935; Surjit Singh & Ors. v. Balbir Singh, (1996) 3 SCC 533; State of Punjab v. Raj Singh & Anr., (1998) 2 SCC 391; K. Vengadachalam v. K.C. Palanisamy & Ors., (2005) 7 SCC 352; and Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR 2005 SC 2119)”.
22. The common affidavit dated 22.08.2017 filed by the Investigating Officer in these petitions would clearly disclose that prosecution is contending that school administration, of which, petitioners are directors/administrators/teachers/staff had failed to follow the directions issued by the Commissioner of Police, Bangalore, and Sri B.T.Venkatesh, learned Special Public Prosecutor has vehemently contended that valid orders issued by the officials of the Education Department, Government of Karnataka, have not been complied by the school administered by petitioners and thereby Section 188 of IPC is attracted. Thus, essentially the facts as laid before this Court by the prosecution would disclose primarily and essentially an offence, for which, the petitioners are being prosecuted is for the offence punishable under Section 188 of IPC. Thus, a complaint was required to be filed to the Court by a public servant as contemplated under Section 195(1)(a)(i) of Cr.P.C. In fact, the Hon’ble Apex Court under similar circumstances in C.Muniappan’s case referred to supra has held that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill-will or frivolity of disposition. It has been held:
“29. The test of whether there is evasion or non-compliance with Section 195 Cr.P.C or not, is whether the facts disclose primarily and essentially an offence for which a complaint of the court or of a public servant is required. In Basir-ul-Haq v. The State of West Bengal, AIR 1953 SC 293; and Durgacharan Naik v. State of Orissa, AIR 1966 SC 1775, this Court held that the provisions of this Section cannot be evaded by describing the offence as one being punishable under some other sections of IPC, though in truth and substance, the offence falls in a category mentioned in Section 195 Cr.P.C. Thus, cognizance of such an offence cannot be taken by mis- describing it or by putting a wrong label on it”.
After analyzing the case laws on these aspects in conclusion it came to be held by the Hon’ble Apex Court that in the absence of any compliant by a public servant, trial and conviction will be void ab-initio being without jurisdiction. It was held:
“33. Thus, in view of the above, the law can be summarized to the effect that there must be a complaint by the public servant whose lawful order has not been complied with. The complaint must be in writing. The provisions of Section 195 Cr.P.C are mandatory. Non-compliance with it would vitiate the prosecution and all other consequential orders. The court cannot assume the cognizance of the case without such complaint. In the absence of such a complaint, the trial and conviction will be void ab initio being without jurisdiction”.
(emphasis supplied by me) 23. Keeping the above referred authoritative pronouncement of law in mind, when facts on hand are examined, it would disclose that prosecution has proceeded against the petitioners for the offence punishable under section 188 of IPC only. Merely because, it is at pre-cognizance stage, by itself, would not be a ground to stave off the legitimate procedure prescribed for initiating proceedings against the petitioners. Hence, contention of the petitioners that Section 482 of Cr.P.C., should not be exercised at pre- cognizance stage cannot be accepted and it is hereby rejected.
24. On perusal of the judgment in the case of M.Narayandas Vs. State of Karnataka and Others reported in (2003) 11 SCC 251 relied upon by Sri B.T.Venkatesh, learned Special Public Prosecutor appearing for the State would disclose that Hon’ble Apex Court has observed that at the stage of investigation Section 195 Cr.P.C. has no application. In the background of facts obtained in said case, it came to be held by the Hon’ble Apex Court that “while exercising power under Section 482 of Cr.P.C., Court would not enquire about reliability or genuineness or otherwise of the allegations made in the FIR. It came to be noticed by Hon’ble Apex Court that High Court in the said case had examined the documents produced by the parties, compared the signatures found thereon and had then proceeded to arrive at a conclusion that said documents were not false or fabricated. Hence, it came to be held by Hon’ble Apex Court that High Court had examined the probable defense of the accused while examining the plea for quashing of the proceedings and such as exercise could not have been undertaken by the High Court. However in the instant case, this Court is not embarking upon conducting any such enquiry and only the complaint allegation – FIR is looked into for the purposes of examining as to whether this Court should exercise power under Section 482 Cr.P.C. to quash the FIR. Hence, judgment relied upon by learned Special Public Prosecutor would not come to his rescue in the instant case.
25. In the light of aforestated facts, this Court is of the considered view that petitioners who have been alleged to have committed the offence punishable under Section 188 of IPC proceedings initiated by the respondent-Police against them cannot be continued since said complaint is not filed by a public servant as per mandate of Section 195 Cr.P.C and as such, it has to be necessarily held that continuation of further proceedings pursuant to registration of FIRs would be an abuse of process of law.
26. Now turning my attention to yet another contention raised by learned SPP namely, whether prosecution can be permitted to continue the proceedings against the petitioners for the offence punishable under Section 21 of POCSO Act, it would not detain this Court for too long to reject said contention for two reasons: Firstly, in the FIR registered for the offences alleged against the petitioners, prosecution has not invoked Section 21 of POCSO Act. Secondly, the affidavit of the Investigating Officer referred to herein supra, which has been relied upon by the prosecution, contending Section 21 of POCSO Act is attracted to facts is a plea is without any supporting document.
27. That apart, learned Special Public Prosecutor has made available the attested copies of the Station House Diaries of both Marathahalli Police Station and HAL Police Station. Perusal of the same would disclose that initially, complaint came to be lodged by one of the parents of the child, which came to be registered in Crime No.11/2017 (which is not subject matter of consideration in these proceedings) and this was the first complaint, which came to be lodged by a parent of the child alleging sexual abuse by the 1st accused i.e., Manjunath (A-1) which is not being examined by this Court. Petitioners have placed on record the complaint said to have been lodged by them with the jurisdictional Police i.e., Marathahalli Police Station, which is dated 17.2.2017. Perusal of same would disclose it has been filed by Director of School before Marathahalli Police Station. However, endorsement found thereon would disclose that it has been received on 18.2.2017 and said complaint has been enclosed to Crime No.11/2017. Undisputedly, Crime No.11/2017 came to be initially registered by HAL Police Station in Crime No.101/2017 at 9.30 a.m. and later transferred to Marathahalli Police Station which was registered in Crime No.11/2017. This Court in order to ascertain or examine as to whether the petitioners had taken steps as expected of them had called upon the learned SPP to make available the original Station House Diaries of both the Police Stations and as already noticed hereinabove same has been produced. In fact, this Court had an occasion to consider the manner, mode or method, in which, the Station House Diary is required to be maintained by the jurisdictional Police in the case of Irfan Vs. State of Karnataka by Gandhi Chowk Police, Vijayapura reported in ILR 2016 KAR 3537 and it came to be held that Section 154 of Cr.P.C., indicates that where a report is received by the Station House Officer regarding commission of a cognizable offence, concerned officer is required to enter the substance of such information in a diary as the State Government may prescribe and it was held in this background that expression “diary” found in sub-Section (1) of Section 154 of Cr.P.C., would acquire significance and to ensure that purpose and intent with which sub-Section (1) has been enacted is achieved. Station House Diaries are to be maintained. It was also held that Police Manual introduced by the Government of Karnataka and implemented by the Law Enforcing Agencies are to be held meticulously followed as prescribed thereunder, since Station House Diary is used as a record of detail disclosing every major or minor incident occurring within the jurisdiction of police station on a daily basis and it is the main record of the affairs of the police station and should contain everything of importance relating to the work of the police station.
28. In the light of aforestated position of law, this Court has perused the Station House Dairies so produced by learned SPP and has found that in the Station House Diary of Marathahalli Police Station, there are certain discrepancies with regard to the complaint received on 18.02.2017, particularly, with reference to the complaint lodged by the petitioners as well as the parents of the victim. Though, this Court would not examine the contents of the said complaint or otherwise, it would suffice to hold that school administration represented by the petitioners have immediately taken steps to bring it to the notice of the jurisdictional Police about the incident that had occurred in the school namely alleging that Manjunath (Accused No.1) had sexually harassed a child by name Inayath Bhatia as informed by its parents and said complaint would also disclose that complainant – Smt.Veena has specifically stated that in the event of parents of the child failing to lodge a complaint, they would co-operate with the investigation. Thus, occurrence of the incident has been brought to the notice of jurisdictional police by petitioners. Thus, it cannot be held that Section 21 of POCSO Act is attracted as sought to be made out by the Investigating Officer in his affidavit filed before this Court.
29. The complaints filed by the parents have been registered in the respective crime numbers as noted herein above against 1st accused who is said to have abused the children who were attending the school and continuation of the proceedings insofar as accused No.1 is concerned, there cannot be any dispute that prosecution would be at liberty to proceed against accused No.1. A reading of the complaint as a whole would not disclose commission of offences under Sections 4, 6, 8, 9, 10, 11, 12 and 17 of POCSO Act and Sections 376 & 377 of IPC by the petitioners. The allegation made in the FIR and the complaint, even if they are taken at their face value and accepted in its entirety do not prima facie constitute the offences alleged against them. As such, continuation of the proceedings against the petitioners would be an abuse of process of law. Hence, for the reasons aforestated, I proceed to pass the following ORDER (i) Criminal petitions are hereby allowed.
(ii) Proceedings initiated against the petitioners in Crime Nos.14/2017, 15/2017, 16/2017, 17/2017 and 19/2017 who are arraigned as accused Nos.2 and 3, accused Nos.2, 3 and 4, accused Nos.2 and 3, accused No.2 and accused Nos.1 and 2 (petitioners) respectively for the offences punishable under Sections 4, 6, 8, 9, 10, 11, 12 and 17 of POCSO Act, 2012 and Sections 376, 377 and 188 read with Section 34 of IPC are hereby quashed.
(iii) Quashing of the proceedings would not come in the way of appropriate authorities initiating proceedings against the petitioners in the manner known to law.
SD/- JUDGE *sp/Prs/Pb