IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31st DAY OF MAY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.6484/2015 c/w CRIMINAL PETITION Nos.6485/2015 AND 6486/2015 BETWEEN:
Mr.Janardhan P.R. S/o P.R.Radhakrishna Aged about 34 years R/o Santhemarahalli Behind Balu Hotel, Chamarajanagar Taluk, Chamarajanagar District – 560 082.
... Petitioner in Crl.P.6484/2015 Mr.Afzal Begh S/o late Azeem Begh Aged about 52 years R/o Gundlapet Circle, A.P.Mohalla, 2nd Cross, Chamarajanagar Town, Chamarajanagar District – 560 082.
... Petitioner in Crl.P.6485/2015 Mr.Mahadevashetty S/o late Varada Shetty Aged about 52 years R/o Police Quarter, B.Rachaiah Double Road, Amachawadi, Chamarajanagar Taluk, Chamarajanagar District – 560082.
(By Sri. P.N.Hegde, Advocate)) AND M.Athikullakhan S/o K.Abdul Gafar Khan Age Major, No.147/209, 1st Block, Main Road, Doddakavalande, Nanjangud taluk, Mysore District – 570001.
(By Sri. B.Lethif, Advocate) ... Petitioner in Crl.P.6486/2015 ... Respondent (common) These Criminal Petitions are filed under Section 482 of Cr.P.C. praying to set aside the order dated 06.08.2015 passed by the District and Sessions Judge, Mysuru, in Crl.R.P.Nos.41/2013, 42/2013 & 40/2013 and consequently, set aside the order taking cognizance dated 05.09.2013 passed by the learned Prl.Civil Judge and JMFC, Chamarajanagar, in PCR No.54/2011.
These Criminal Petitions coming on for Admission, this day, the Court made the following:
O R D E R Petitioner in Crl.P.No.6484/2015 was the Police Inspector of Chamarajanagar Police Station time and the petitioners in Crl.P.Nos.6485/2015 and 6486/2015 were the police constables attached to the said police station at the relevant time. Respondent herein filed a private complaint against the petitioners under Section 200 of Code of Criminal Procedure seeking their prosecution for the alleged offences punishable under Sections 323, 324, 326, 330, 331, 340, 341, 342, 343, 348, 352, 357 r/w Section 34 of Indian Penal Code.
2. The case of the complainant-respondent is that on 03.04.2011, he was picked up from KSRTC bus station at Chamarajanagar on the pretext of interrogation in a case and thereafter he was tortured and assaulted in the police station. He was released on 05.04.2011. Thereafter, he took treatment in three Hospitals.
3. The learned Magistrate recorded the statements of the complainant and four witnesses produced by him and by order dated 05.09.2013 in PCR No.54/2011 took cognizance of the aforesaid offences and issued summons to the petitioners. Feeling aggrieved by the said order, petitioners preferred Crl.R.P.Nos.40, 41 and 42/2013 before the learned District and Sessions Judge, Chamarajanagar and by order dated 06.08.2015, even the Revisions Petitions were dismissed confirming the order passed by the trial court.
4. I have heard the learned counsel appearing for the petitioners and learned counsel appearing for the respondent.
5. Learned counsel for the petitioners has urged two fold contentions. Firstly, going by the averments made in the complaint, the complainant-respondent was picked up for the purpose of interrogation. Under the said circumstances, even assuming there was any excess committed by the petitioners, the same having been committed during the discharge of their official duties, the alleged acts of the petitioners are protected under Section 197 of Code of Criminal Procedure. In the said circumstances, without prior sanction under Section 197 of Code of Criminal Procedure, the learned Magistrate was disabled to take cognizance of the alleged offences. In support of this submission, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in the case of D.T.Virupakshappa vs. C.Subash AIR (SCW) 2015 – 2643.
Secondly, on the same set of allegations, based on the complaint lodged by the respondent, disciplinary enquiry was held against the petitioners and after elaborate inquiry, petitioners are exonerated of identical charges. In the said circumstances, on the principle of higher standard of proof, criminal proceedings could not be continued against the petitioners.
6. Refuting the above submissions, learned counsel appearing for the respondent would submit that the complainant has examined himself as well as four other independent witnesses, who have spoken to the fact that the respondent was picked up from the bus stand and he was unlawfully detained in the police station for two days. There is direct evidence to show that he was released from the police station only on 05.04.2011. In respect of the injuries sustained by him during his unlawful custody in the police station, wound certificate was produced relating to the treatment taken by him in three Hospitals. Thus, there was abundant evidence to show that the respondent was beaten up in the police station and was unlawfully detained by the petitioners, thereby prima-facie constituting the ingredients of the offences charged against them. He further submitted that in the absence of any material to show that the respondent was detained by the petitioners in connection with pending investigation, the petitioners are not entitled to take recourse to Section 197 of Code of Criminal Procedure. Thus, he prays for dismissal of the petitions.
In support of his submissions, learned counsel has placed reliance on the following decisions:-
(i) Laws (SC) 2009 1 – 118 (Choudhury Parveen Sultana) vs. State of West Bengal;
(ii) (2002) 6 SCC 543 (Raj Kishor Roy vs. Kamleshwar Pandey and Another) (iii) ILR 1999 KAR 197 (Ninge Gowda & Another vs. S. Madhureswar) 7. I have considered the submissions and have perused the records.
8. It is not in dispute that the petitioners were the police officials attached to Chamarajanagar police station at the relevant time. The main contention urged by the petitioners is that the alleged acts were committed by them during discharge of their official duties. But, unfortunately, no material is available on record to show that the respondent was picked up in connection with any pending investigation as contended. Under the said circumstances, there was absolutely no basis for the petitioners to contend that the alleged acts were performed by them in the course of investigation in a pending trial.
9. The materials produced by the respondent clearly indicate that the witnesses have spoken about the presence of the petitioners in the police station. There is prima-facie material to show that soon after the release from the police station he has taken treatment. Respondent has specifically alleged that he was assaulted by the petitioners. In the said circumstances, there being no contra material to show that the alleged occurrence has taken place while the petitioners were discharging their lawful duties in connection with any pending investigation, in my view, the petitioners are not entitled for the benefit of Section 197 of Code of Criminal Procedure. In that view of the matter, the principles laid down in the decision relied on by the learned counsel for the petitioners cannot be applied to the facts of the present case. As a result, I do not find any justifiable reason to interfere with the orders passed by the Court below in this regard.
10. In the light of the above discussion, the contention urged by the petitioners that on account of exoneration of the petitioners by the disciplinary authority, they are entitled for the quashment of the impugned proceedings cannot be accepted. As already noted above, the findings recorded by the inquiry officer are contrary to the statements of the witnesses examined by the complainant. Therefore, taking into consideration all the above facts and circumstances, I do not find any good ground for quashing the proceedings initiated against the petitioners.
11. As a result, the petitions fail and are accordingly dismissed.
Sd/- JUDGE Srl.