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.56265/2015 (GM – RES) BETWEEN:
Sri. V. Sudhakar, S/o. R. Venkatesh, Age: 22 years, Student R/o C- Block, Vemagal, Taluk and District: Kolar – 563 101. …Petitioner (By Sri. Veeranna G. Tigadi, Advocate) AND:
1. State of Karnataka, Rep. by Inspector of Police, Kolar Town Police Station, Kolar – 563 101.
2. Sri. S. Venkataswamy, S/o. late Shankarappa, 56-S, Principal, Government Pre–University College, Kolar, R/o P.C. Extension, Kolar – 563 101. ...Respondents (By Sri. Vijayakumar Majage, Addl. SPP for R1; R2 served and unrepresented) 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 quash Annexure – L the Charge sheet dated 10.10.2013 filed by Kolar Town Police Station Crime No.182/2013 in C.C.No.753/2013 pending on the file of the learned Prl. Senior Civil Judge and Chief Judicial Magistrate, Kolar for the offences punishable under Sections 419, 420 read with Section 34 of Indian Penal Code and Section 118 of Karnataka Education Act, 1983 and etc.
This Writ petition coming on for Preliminary Hearing in 'B' Group, this day, the Court made the following:
O R D E R Petitioner before this Court is accused No.2. Charge sheet is filed against him alleging commission of offences punishable under Sections 419, 420 r/w 34 of IPC and Section 118 of the Karnataka Education Act, 1983.
2. The contention of the learned counsel for the petitioner is that the facts averred in the charge sheet constituting offences relate only to accused No.1. Insofar as accused No.2 namely the petitioner herein is concerned, according to the prosecution he was a candidate who was supposed to take examination for II PUC on 03.07.2013. It is not the case of the prosecution that he has committed the offence of impersonation. The allegations made against him under Section 420 of IPC could be substantiated provided the facts averred by the prosecution would satisfy the ingredients of Section 415 of IPC. In order to constitute the offence of cheating there has to be deception, cheating or inducement so as to deliver any property to any person, or to consent that any person shall retain any property. In the absence of these essential averments, offence under Section 415 is not made out. Consequently, charge sheet laid against petitioner/accused No.2 under Section 420 of IPC is liable to be quashed.
3. Insofar as the offence under the provisions of Section 118 of Education Act is concerned, it is argued that Section 25 of the Education Act prohibited any person to appear or write any examination for or on behalf of any other candidate. It is not the case of the prosecution that accused No.2 appeared or wrote the examination for or on behalf of other person. As such, ingredients of Section 25 of the Education Act also having not been made out, petitioner cannot be held liable for the offence under Section 118 of Education Act. Further, Section 137 of the Education Act requires that the investigation into the offences under Sections 115 to 122 of the Education Act could be done only by an officer of and above the rank of Inspector of Police. In the instant case, investigation has been conducted by the Sub-Inspector of Police. In view of these illegalities, charges under the provisions of Section 118 of the Education Act also cannot be sustained; consequently, prosecution of the petitioner being illegal and abuse of process of law, is liable to be quashed.
4. Learned Addl. SPP appearing for respondent No.1-State has argued in support of the impugned action contending that the petitioner is sought to be prosecuted with the aid of Section 34 of IPC. The averments made in the complaint as well as in the charge sheet clearly disclose that both accused shared common intention and therefore, petitioner herein cannot be absolved of the said charges at this stage. Further, with regard to the violations of Section 137 of the Education Act is concerned, the learned Addl.
SPP would submit that the said lapse is only an irregularity not an illegality, which could vitiate the proceedings and therefore, there is no justifiable reason to quash the proceedings initiated against the petitioner.
5. Considered the submissions and perused the records.
6. Whether an illegality committed in the course of investigation affect the competence and jurisdiction of the Court for trial has been considered in H.N. RISHBUD AND INDER SINGH VS THE STATE OF DELHI (AND CONNECTED) ON 14 DECEMBER, 1954 reported in AIR 1955 SC 196. The law laid down in this decision is reiterated in R.A.H.SIGURAN Vs. SHANKARE GOWDA @ SHANKARA reported in (2017) 16 SCC 126 at para 17, it has been held as under:
“17. In A.C. Sharma v. Delhi Admn [(1973 ) 1 SCC 726], provisions of Section 5-A were again considered by this Court and held as under: (SCC p.735, para 15) “15. As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In this connection it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196], it was held that an illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it considers appropriate with reference to the requirements of Section 5-A of the Prevention of Corruption Act, 1947. This decision was followed in Munnalal v. State of U.P. [AIR 1964 SC 28] where the decision in State of M.P. v. Mubarak Ali [AIR 1959 SC 707], was distinguished. The same view was taken in State of A.P. v. N. Venugopal [AIR 1964 SC 33] and more recently in Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 786]. The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr Anthony deal with different points: in any event to the extent they contain any observations against the view expressed by this Court in the decisions just cited those observations cannot be considered good law.”
In view of the law laid down in the above decision, the first contention urged by the learned counsel for the petitioner, is rejected.
7. Insofar as the offence under the provisions of the Education Act and Section 420 of IPC are concerned, as rightly submitted by the learned Addl. SPP, petitioner is sought to be prosecuted with the aid of Section 34 of IPC. The material on record clearly disclose common intention on the part of accused Nos.1 and 2 and it is alleged that in furtherance of this common intention, accused No.2 has committed the aforementioned offences. In the light of this factual position, the contention urged by the learned counsel for the petitioner that the facts of the case do not attract the offence of cheating cannot be accepted.
As a result, I do not find any merit in the contentions urged by the petitioner. Consequently, petition is dismissed.
Sd/- JUDGE SV