IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF MARCH 2017 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.8942 OF 2016 C/W CRIMINAL PETITION NO.8943 OF 2016 CRIMINAL PETITION NO.8944 OF 2016 IN CRIMINAL PETITION NO.8942 OF 2016 BETWEEN:
GEETHA KULKARNI AGED ABOUT 43 YEARS, WIFE OF NAVEEN KUMAR WORKING AS INSPECTOR AT CID, R/AT NO.874, 18TH MAIN, 5TH BLOCK, RAJAJINAGAR BENGALURU 560010 ... PETITIONER (By Sri: SAJJAN POOVAYYA, SR. COUNSEL A/W SRI: DIWAAGAR R.S., & SRI: SIDDHARTH P. DESAI, ADVS. FOR SMT : NALINA MAYE GOWDA, ADVOCATE) AND 1. STATE BY VIVEKNAGAR PS, BENGALURU-560047 REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU 560001 2. CRIMINAL INVESTIGATION DEPARTMENT (C I D) SPECIAL INVESTIGATION DIVISION REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENGALURU-560001 3. MR. KRIPLANI M S/O MADAN KANTHAN AGED ABOUT 40 YEARS, NO.2093, 16TH B MAIN, HAL 2ND STAGE, INDIRANAGAR, BENGALURU 560008 ... RESPONDENTS (By Sri: VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R1-R2 SRI: B.S.DATTATREYA, ADVOCATE FOR R3) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.11.2016 PASSED ON THE FILE OF I ACMM, BANGALORE IN C.C.NO.867/2015.
IN CRIMINAL PETITION NO.8943 OF 2016 BETWEEN:
MRS M C KAVITHA AGED ABOUT 45 YEARS, WIFE OF MR KARRIAPPA A WORKING AS INSPECTOR AT SCRB, R/AT HOUSE NO.1, POLICE OFFICERS QUARTERS, BERLIE STREET, SHANTHINAGAR BANGALORE 560027 ... PETITIONER (By Sri: SAJJAN POOVAYYA, SR. COUNSEL A/W SRI: DIWAAGAR R.S., & SRI: SIDDHARTH P. DESAI, ADVS. FOR SMT: NALINA MAYE GOWDA, ADVOCATE) AND 1. STATE BY VIVEK NAGAR PS, BENGALURU-560047 REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU 560001 2. CRIMINAL INVESTIGATION DEPARTMENT (C I D) SPECIAL INVESTIGATION DIVISION REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENGALURU -560001 3. MR. KRIPLANI M S/O MADANA KANTHAN AGED ABOUT 40 YEARS, NO.2093, 16TH B MAIN, HAL 2ND STAGE, INDIRANAGAR, BENGALURU 560008 ... RESPONDENTS (By Sri: VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R1-R2 SRI: B.S.DATTATREYA, ADVOCATE FOR R3) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 18.11.2016 PASSED ON THE FILE OF I ACMM, BANGALORE IN C.C.NO.867/2015.
IN CRIMINAL PETITION NO.8944 OF 2016 BETWEEN:
SRIDHARA K.V.
S/O SRI.VENKATARAMANA SHETTY, AGED 46 YEARS, RESIDING AT DOOR NO.1122, 9TH CROSS ADARSHA LAYOUT, BASVESHWANAGAR, BENGALURU-560071. ... PETITIONER (By Sri: SAJJAN POOVAYYA, SR. COUNSEL A/W SRI: DIWAAGAR R.S., & SRI: SIDDHARTH P. DESAI, ADVS. FOR SMT: NALINA MAYE GOWDA, ADVOCATE) AND 1. STATE OF KARNATAKA BY VIVEK NAGAR PS, BENGALURU-560047 REPRESENTED BY SPP HIGH COURT OF KARNATAKA BENGALURU 560001 2. CRIMINAL INVESTIGATION DEPARTMENT (C I D) SPECIAL INVESTIGATION DIVISION REPRESENTED BY SPP, HIGH COURT OF KARNATAKA, BENGALURU -560001 3. SRI. KRIPLANI M S/O MADANA KANTHAN AGED ABOUT 40 YEARS, NO.2093, 16TH B MAIN, HAL 2ND STAGE, INDIRANAGAR, BENGALURU 560008 ... RESPONDENTS (By Sri: VIJAYAKUMAR MAJAGE, ADDL.SPP FOR R1-R2 SRI: B.S.DATTATREYA, ADVOCATE FOR R3) ---
THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE IMPUGNED ORDER DATED 18.11.2016 (ANNEXURE-A) IN C.C.NO.867/2015 PENDING BEFORE THE I ACMM, BENGALURU AS AGAINST THE PETITIONER.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 22.03.2017 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R These three petitions are filed under section 482 of Cr.P.C., seeking to set aside the order dated 18.11.2016 passed by the I Addl. Chief Metropolitan Magistrate, Bengaluru in C.C.No.867/2015. By the impugned order, the learned Magistrate has taken cognizance of the offences punishable under sections 393, 392, 201, 323, 326, 397, 114, 119 r/w. 149 Indian Penal Code and has issued summons to the petitioners herein impleading them as accused Nos.7, 8 and 6 respectively.
2. The outline facts leading to the present petitions are as follows:-
On the night of 27.9.2008, the respondent No.3 Mr.Kriplani.M. (hereinafter called as “complainant”) was on his way home along with his two friends (V.Vijay and Balakrishna) after having dinner at Koramangala. The police personnel of Ashok Nagar Traffic Police at Inner Ring Road, Air view point, intercepted his car (KA-03-MD-3085). There was an altercation between the complainant and the police. According to the complainant, on questioning the police about the challan issued by them asking the driver to appear before the court on 2.10.2008, which was a Gandhi Jayanthi day, the Traffic Police S.I. Mr.Nanjegowda is stated to have dragged the complainant out of the car and forcibly removed the ignition key and abused the complainant in foul language and slapped on his cheek. The complainant was forced into a patrol vehicle (Hoysala Van) and inside the vehicle he was beaten up by the police officials Mr.Prakash - Police Constable of Viveknagar Police Station, Mr.Shivakumar - Police Constable of Viveknagar Police Station, Mr.Nanjegowda - Traffic Police S.I. of Ashoknagar Police Station and Mr.Ratan Kumar – Traffic Warden at the behest of Mrs.Geetha N.Kulkarni, Police Inspector of Ashoknagar Traffic Police Station. His mobile phone and gold chain were forcibly removed while being beaten up in the Hoysala Van.
3. It is stated that as an off shoot of the altercation, the police launched a case against the complainant/respondent No.3 for the alleged offence punishable under section 353 of Indian Penal Code. According to the complainant, after the incident at about 12.40 a.m., on 28.9.2008, he was taken to Viveknagar Police Station where he was again assaulted by the police. He was made to sit on the floor in the cell of the Police Station. At about 12.00 noon, he was produced before the Magistrate and was released on bail. Before taking to the Magistrate’s house, the police instructed the complainant/respondent No.3 to inform the family members to get a set of clothes as the shirt he was wearing was completely soaked with blood due to assault and then he was taken to Bowring Hospital for treatment of the injuries. His friend Mr.Vijay arranged for an Advocate and on production before the Magistrate, the complainant was released on bail. Since he had suffered heavy injuries on his face, he consulted a Doctor and it was found out that he had suffered a fracture in his nasal bone and was advised surgery. On 6.10.2008 he underwent surgery at HOSMAT hospital. The complainant requested for return of his mobile phone and the gold chain. The police returned only his clothes dry cleaned.
4. As the police personnel had misbehaved with the complainant and had committed the above atrocities, he lodged a complaint against the aforesaid police on 22.10.2008 based on which the Viveknagar police registered the FIR in Cr.No.290/2008 under section 394 r/w. 34 of Indian Penal Code against Nanjegowda – Sub-Inspector of Ashoknagar Traffic Police Station, Shivakumar – Police Constable, Viveknagar Police Station, Prakash – Constable, Viveknagar Police Station and others. In the meanwhile, the police filed a charge-sheet against the complainant/respondent No.3 for the offence under section 353 Indian Penal Code in Cr.No.272/2008 (C.C.No.22587/2009).
5. The complaint lodged by the complainant/respondent No.3 was investigated in Cr.No.290/2008 and the police laid a charge-sheet against a traffic warden Ratankumar and his wife Geetha N.Kulkarni alleging that the said police had committed theft of articles belonging to the complainant under section 392 r/w. 201 of Indian Penal Code (C.C.No.22588/2009). The complainant challenged the said final report by filing a protest petition under section 200 Cr.P.C. in PCR.No.123/2009. Respondent No.3 also simultaneously challenged the order of X Addl. CMM, Bengaluru dated 21.4.2009 taking cognizance in C.C.No.22588/2009 by preferring a petition under 482 of Cr.P.C. in Crl.P.No.6615/2013. This Court by order dated 25.3.2014 quashed the charge-sheet filed in C.C.22588/2009 on the file of X Addl.CMM, Bangalore and remitted the matter for enquiry by C.I.D. – respondent No.2 herein.
6. The CID police filed the charge sheet against accused Nos.1 to 4 viz., Ratan Kumar, Nanje Gowda, Prakash Marigowda and Shivakumar. The learned Magistrate accordingly issued summons to the aforesaid four accused. The respondent No.3 filed a protest petition before the learned Magistrate seeking to take cognizance of the offences as against the other accused named in the petition. The learned Magistrate however rejected the protest petition filed by the third respondent. Hence, once again, the third respondent carried the matter to this Court under section 482 Cr.P.C. by filing Crl.P.No.1383/2016. This Court disposed of the said criminal petition by order dated 22.9.2016 directing the court below “to re-visit the complaint and the charge sheet and to take further steps in accordance with law in its discretion”. The court below was also directed to examine whether the allegations made against the proposed parties were carried out in the course of discharge of duty or otherwise and to decide if sanction was warranting under section 197 Cr.P.C. After remand, the I Addl. CMM, Bengaluru by the impugned order dated 18.11.2016 directed to array the petitioners herein as accused Nos.6 to 9 and took cognizance of the offences punishable under sections 393, 392, 201, 323, 326, 397, 114, 119 r/w 149 Indian Penal Code in C.C.No.867/2015 against the petitioners.
7. Being aggrieved by the impugned order dated 18.11.2016, the petitioners have filed the above petitions inter- alia contending that the learned Magistrate has passed the impugned order without proper application of mind. It is contended that the matter was remitted to the learned Magistrate to revisit the complaint and to take steps in its discretion, but the learned Magistrate has proceeded to take cognizance against the petitioners contrary to the directions issued by this Court in Crl.P.No.1383/2016. It is further contended that the petitioners were performing duties in their official capacity for which sanction under Section 197 Cr.P.C. is a condition precedent for taking cognizance against the petitioners. It is contended that the learned Magistrate has passed the impugned order hastily without assigning any reasons in justification thereof and has proceeded to hold that the sanction under Section 197 Cr.P.C. was not required for the offences denoted in the impugned order. According to the petitioners, the learned Magistrate has relied on the statements of the complainant and other witnesses who are the close family members and friends of respondent No.3. The statements of the complainant and other witnesses do not prima-facie make out any of the offences alleged against the petitioners. Therefore, this Court in exercise of powers under section 482 Cr.P.C. is entitled to revaluate the material placed on record and to ascertain whether the petitioners are involved in the commission of the aforesaid offences and as to whether the ingredients constituting the offences alleged against the petitioners are forthcoming from the set of facts and circumstances brought on record and quash the impugned proceedings.
8. I have heard the learned counsel for the petitioners and the learned Addl. SPP for respondent Nos.1 and 2 as well as the learned counsel for contesting respondent No.3.
9. The learned counsel for the petitioners have reiterated the contentions urged in the petitions and have referred to the following authorities in support of their arguments viz., 1. State of Orissa and others vs. Ganesh Chandra Jew (2004) 8 SCC 40;
2. Pukhraj vs. State of Rajasthan and Another, (1973) 2 SCC 701;
3. Matajob Dobey vs. H.C. Bhari, AIR 1956 SC 44; & 4. D.T. Virupakashappa vs. C. Subash, (2015) 12 SCC 231 10. The learned counsel for contesting respondent No.3 has placed reliance in the case of General Officer Commanding, Rashtriya Rifles vs. Central Bureau of Investigation and Another, (2012) 6 SCC 228.
11. I have bestowed my thoughts to the oral submissions made at the Bar and have carefully scrutinized the impugned order and the material placed on record. The learned Addl. SPP has also furnished the charge sheet copies for perusal of the Court.
12. The petitioners have assailed the impugned order mainly on the ground that the facts and circumstances alleged against the petitioners do not make out the offences alleged against them and the Magistrate has not applied his mind to the facts of the case, therefore the act of taking cognizance by the learned Magistrate is bad in law and is liable to be quashed under section 482 Cr.P.C. But, on going through the impugned order, I find that the learned Magistrate has not only considered the statements of the witnesses and has extracted the portion thereof but has also satisfied himself that the said material makes out the ingredients of the offences warranting summons to the petitioners. In this regard, it may be useful to refer to the relevant portion of the impugned order which reads as under:-
“ That, the complainant in his statement dated 06.09.2014 has specifically stated that the proposed Respondent No.2 Smt. Geeta Kulkarni stated as under:
“D PÀÄAl, PÀjAiÀiÁUÉ ºÉÆqÉAiÀÄĪÀÅzÀÄ ¨ÉÃqÀ, EªÀ£À£ÀÄß ªÀiÁvæÀ ©qÀ¨ÉÃr. ºÆÉ qÉzÄÀ ªÉƨÉå¯ï QvÀÄÛPÉƽî JAzÀÄ ºÉýzÀgÀÄ”. That, the Complainant in his said statement has further specifically stated that, as per the instructions of PI Shri Sridhar- proposed Respondent No.1, the police have put him in lock up & removed his clothes & with an intention to destroy the evidence took his said bloodstained clothes. That, the complainant in his further statement dated 12.09.2014 has stated about the treatment taken by him & lodging the complaint before the DCP, Commissioner of Police & SHRC. That, the witness Shri Balakrishna S/o Ramaswamy in his statement dated 09.09.2014 has narrated the incident & has specifically stated that the Respondent No.2 Smt Geetha Kulkarni asked the Accused No.2 for taking the mobile phone from the complainant. That, the witness by name S.V.Vijay @ Vijay Swaminath S/o S.Venkatramani in his statement dated 09.09.2014 has stated as that of witness Shri.Balakrishna. That, the another witness by name Shri Arvind S/o Madan Kantan in his statement dated 08.09.2014 has stated that on 28.09.2008 he received the phone call from one Shri Vijay at about 7.00 a.m. to 7.30 a.m. & he went to the Viveknagar police Station & found that eyes & face of his brother were swelling & his clothes were bloodstained & he came back to his house brought the clothes of his brother & gave it to the police. That, the another witness by name Dr. Shri R. Girish s/o Rajgopalan in his statement dated 10.09.2014 has stated about the first aid given by him to the complainant. That, the another witness by name Dr. Smt. Vidya w/o Girish in her statement dated 08.09.2014 also stated about the first aid given by her to the complainant & also stated that when he asked inspector about the condition of her brother i.e., complainant then he threatened her with dare consequences. It is pertinent to note here that from the complaint averments, statement & further statement of the complainant & statement of said witnesses & the documents it appears that the proposed respondents have committed the offences against the complainant & his friends. It is pertinent to note here that from the records it appears that the police have “deliberately” recorded the statement of police officials including the proposed Respondents. It is pertinent to note here that, as stated above the I.O. has filed the present final report against the present accused for the offences punishable under section 394 & 323 of the Indian Penal Code. It is pertinent to note here that, in the instant case the provisions/requisites of sections 392,201,323,326,398,114, 119 R/w sec. 149 of the Indian Penal Code, will attract. It is to be noted here that, in the instant case it is very much necessary to implead the proposed Respondents No.6 to 9 as mentioned in Criminal Petition No.1383/2016 as accused persons. Hence, the office is to issue summons to the said proposed Respondents. That, the cognizable has taken for the offences punishable under section 393, 392, 201, 323, 326, 397, 114, 119 R/w section 149 of the Indian Penal Code. That the proposed Respondents No.6 to 9 are-
1) Mr. Sridhara, Inspector of Nandini Layout Police Station, Bengaluru-560096.
2) Mrs. Geetha Kulkarni, Inspector CCB, Bengaluru- 560001.
3) Mrs. M.C.Kavitha, ADPI-SCRB, #1, Police Officers Quarters, Shanthinagar, Bengaluru-560025 & 4) Mr. Samuel Henry, # 68, 1st A Block, Mico Layout, Bannerghatta Road, Bengaluru-560076.
It is pertinent to note here that, in the instant case the sanction u/sec. 197 of Cr.P.C. for prosecuting the proposed Respondents No.6 to 9, is not warranted. It is to be noted here that, from the records available it appears that the said proposed Respondents have committed the said acts out of purview of their official capacity.”
13. As could be seen from the above order, the learned Magistrate has adverted his mind to the documents produced before the Court and has also considered the antecedent facts of the case. I have also perused the charge-sheet copy produced by the learned Addl. SPP which also contains relevant material implicating the petitioners herein. Therefore, it cannot be said that the material produced by the complainant is not sufficient to make out the offences alleged against the petitioners or that the learned Magistrate has not applied his mind to the facts and circumstances making out the ingredients of the offence alleged against the petitioners. Therefore, I do not find any error or infirmity in the impugned order passed by the learned Magistrate taking cognizance of the alleged offences and issuing summons to the petitioners to face trial along with the other accused.
14. Coming to the question of sanction under section 197 Cr.P.C., is concerned, the learned counsel for the petitioners have referred to the above authorities wherein the necessity of sanction under section 197 of Cr.P.C., is held mandatory when the acts alleged against the public servants are found to have been performed in discharge of their official duties. The law on the issue of sanction is now well settled that the question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him. However, in order to qualify for protection under this provision, there must be a discernible connection between the act complained of and the powers and duties of a public servant. As explained in the above decisions, the act complained of may fall within the description of the action purported to have been done in performing the official duty. Therefore, if the alleged act or omission of the public servant can be shown to have a reasonable connection, interrelationship or is inseparably connected with discharge of his duty, he becomes entitled for protection of sanction.
15. In the instant case, the acts against the petitioners cannot be said to have been performed by them in discharge of their official duties. According to the prosecution, on the date of the incident, on the direction of the Addl. Commissioner of Police, the Police Officials were conducting routine patrol at Koramangala, Domlur Inner Ring Road at Air-view point to keep a check on traffic violators and also on persons who were driving vehicles under the influence of alcohol. Admittedly, the complainant –third respondent was not driving the car which was intercepted by the police. There is nothing on record to show that the driver of the said car was either drunk or that any case has been registered against the driver for the drunken driving. The third respondent – complainant was an inmate in the said car. Neither accused Nos.1 to 4 nor the petitioners herein were deputed either to apprehend the complainant or to inquire into any complaint lodged against him. According to the prosecution, during the checking of the vehicle, the complainant interfered in the performance of their duty. But the acts alleged against the petitioners and the other accused do not have any connection to the duties assigned to the petitioners on the date of the incident. Therefore, the learned Magistrate has rightly held that the acts alleged against the petitioners were beyond the purview of their official duties. Therefore, I do not find any reason to interfere with the impugned order. The criminal petitions are liable to be dismissed. Hence, the following:-
ORDER Criminal petitions are dismissed.
I.A.No.1/2017 filed in all the Criminal Petitions do not survive for consideration and accordingly, they are rejected.
Sd/- JUDGE Bss.