IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION No.1881/2016 BETWEEN:
SANJAY RAJ C.D. S/O C H DEVARAJ, AGED ABOUT 36 YEARS, R/O NO.4, BENSON CROSS, BENSON TOWN, BENGALURU - 560 046.
(BY Ms. MANASI SHARMA, ADVOCATE FOR SRI: NITIN R., ADVOCATE) AND 1. THE STATE OF KARNATAKA BY KORAMANGALA P.S., REPRESENTED BY SPP, HIGH COURT BUILDING, BENGALURU - 560 001.
2. SRI NARAYANA REDDY AGED ABOUT 48 YEARS, S/O N MUNIYAPPA, R/AT KAIKONDRAHALLI VILLAGE, VARTHUR HOBLI, BANGALORE EAST TALUK, BANGALORE - 560 035.
... PETITIONER ... RESPONDENTS (BY SRI: VIJAYAKUMAR MAJAGE, ADDL. SPP FOR R1; SRI: VIJAYKUMAR PRAKASH, ADVOCATE FOR SRI: A.MADHUSUDHANA RAO, ADVOCATE FOR R2) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO QUASH THE CHARGE SHEET IN C.C.NO.19552/2015 ARISING FROM CR.NO.576/2004 OF KORMANGALA P.S., BENGALURU CITY, PENDING ON THE FILE OF XLV ADDL.C.M.M., BENGALURU CITY.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for petitioner, learned Addl. SPP for respondent No.1 and learned counsel for respondent No.2. Perused the records.
This petition is filed seeking to quash the charge sheet in C.C.No.19552/2015 arising out of Crime No.576/2004 of Koramangala Police Station.
2. Respondent No.2 filed a complaint before the Koramangala Police making allegations of forgery and falsification of sale-deed and power-of-attorney in respect of the property belonging to one Smt.N.Prema – the mother-in-law of respondent No.2. The FIR was registered in Crime No.576/2004. After investigation, the police submitted ‘B’ summary report mainly on the ground that in respect of the very same issue, the mother-in-law of respondent No.2 namely owner of the property concerned, had filed a civil suit in O.S.No.2662/2005 and the same was pending consideration of the Civil Court.
3. Initially, learned Magistrate accepted the ‘B’ summary report by order dated 4.8.2009 without affording an opportunity to respondent No.2 – complainant to file his protest petition. Same was challenged before the Sessions Court in Crl.R.P.No.242/2011. By order dated 17.12.2011, the order dated 4.8.2009 was set-aside and the matter was remanded to learned Magistrate. Accordingly, learned Magistrate took into consideration the protest petition filed by respondent No.2 and recorded sworn statement of the complainant and after hearing, accepted the ‘B’ summary report and consequently dismissed the complaint filed by respondent No.2 by its order dated 17.03.2015.
4. Second respondent carried the matter in revision in Crl.R.P.No.223/2015 before the LVIII Addl. City Civil and Sessions Judge (CCH-59), Bengaluru and by order dated 25.4.2015, learned Sessions Judge allowed the revision petition and set-aside the order passed by learned Magistrate and once again remitted the matter to the trial court for fresh disposal in accordance with law. On remand, by order dated 24.07.2015, learned Magistrate took cognizance for the offences punishable under sections 468, 471, 420 of IPC against accused Nos.1 to 3. Feeling aggrieved, petitioner/accused No.3 is before this court seeking to quash the charge sheet in C.C.No.19552/2015.
5. Placing reliance on the decision of the Hon’ble Supreme Court in MANHARIBHAI MULJIBHAI KAKADIA & Another vs. SHAILESHBHAI MOHANBHAI PATEL & Others, (2012) 10 SCC 517, learned counsel for petitioner would submit that the order passed by the revisional court without affording an opportunity of hearing to the accused is illegal and cannot be sustained. It is useful to refer to paragraph No.53 of the aforesaid judgment which reads as under:-
53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401(2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no right to participate in proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly.
The judgments of the High Courts to the contrary are overruled.
In view of the proposition of law laid down in the above decision, impugned order passed by the revisional court is required to be set-aside.
Accordingly, petition is allowed. The impugned order dated 25.04.2015 passed by the LVIII Addl. City Civil and Sessions Judge (CCH-59), Bengaluru in Crl.R.P.No.223/2015 is quashed. The matter is remitted to the Sessions Court to hear the parties and dispose of the revision petition in accordance with law. All the legal and factual contentions urged by the parties are left open for consideration by learned Sessions Judge in the revision.
Since the matter is of the year 2015, both the parties are directed to appear the revisional court on 20.8.2019 without any further notice.
Sd/- JUDGE Bss.