1 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 6TH DAY OF FEBRUARY, 2017 BEFORE THE HON'BLE MR.JUSTICE B. A. PATIL CRIMINAL PETITION No.200167/2017 Between: 1. Smt. [ENTITY] W/o [ENTITY] Salagar Age: 45 years, Occ: Household R/o Jidaga, Taluka Aland Dist. Kalaburagi 2. [ENTITY] S/o [ENTITY] Salagar Age: 24 years, Occ: Agriculture R/o Jidaga, Taluka Aland Dist. Kalaburagi 3. [ENTITY] S/o Sangappa Salagar Age: 44 years, Occ: Agriculture R/o Jidaga, Taluka Aland Dist. Kalaburagi 4. [ENTITY] S/o Anandrao Malipatil Age: 45 years, Occ: Agriculture R/o Khandal, Taluka Aland Dist. Kalaburagi 5. Smt. [ENTITY] W/o Adarsh Malipatil Age: 20 years, Occ: Agriculture R/o Sakkaragi, Taluka Aland Dist. Kalaburagi Petitioners (By Sri [ENTITY], Advocate) 2 And: The State through Aland Police Station Tq. Aland, Dist. Kalaburagi Represented by SPP High Court of Karnataka At Kalaburagi Bench Respondent (By Sri [ENTITY], HCGP) This Criminal Petition is filed under [SECTION] of [ACT], praying to quash the complaint dated 27.04.2015, FIR in [CASE NUMBER] registered by Aland Police Station, Kalaburagi and Charge Sheet of the order of taking cognizance dated 27.06.2015 in [CASE NUMBER], which is pending on the file of Civil Judge and JMFC Court, Aland. This petition is coming on for admission this day, the Court made the following:- ORDER
This petition is filed by the petitioner/accused Nos.2 to 6 under [SECTION] of [ACT], seeking to quash the complaint dated 27.04.2015 in [CASE NUMBER] ([CASE NUMBER]) of Aland Police Station, Kalaburagi, registered for the offences punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION]/[SECTION] of [ACT].
2. Brief facts leading to filing of the complaint are that, complainant is a resident of Jidaga village and used to stay in Kandal in the house of her parents. It is further alleged that about two years prior to the alleged incident, the son of the [ENTITY] had been to the said village to his maternal uncle's house, at that time he had an affair between the complainant. It is further alleged that on 12.10.2014 the marriage of the complainant was performed with [ENTITY] s/o [ENTITY] as per their custom at Laxmidevi temple at Belam village of Omerga taluk. It is further alleged that the family members of [ENTITY] may object for the said marriage, on 23.02.2015 again the Court marriage was performed at Civil Court Omerga. It is further alleged that after lapse of a month, he has not returned back, therefore, complainant, her father and elders of the village had been to Jidaga village on 01.04.2015 at about 11:00 a.m. At that time, her mother-in-law, brother-in-law [ENTITY], [ENTITY], [ENTITY], [ENTITY] and other relatives were present and they told the complainant that her marriage is not acceptable to their community since it was a Court marriage and abused her in filthy language, thereafter, assaulted her with hands and threatened her with life. Thereafter, she returned back to her parental house along with her father and relatives. It is further alleged that on 08.04.2015 when she was in her parental house in between 9:30 to10:00 p.m. she received a call from [ENTITY] who is maternal uncle of her husband threatening her to leave his nephew. Therefore, the complainant and her parents discussed with elders of their community and thereafter they lodged a complaint. After filing of the complaint, investigation was conducted and now the charge-sheet has been filed. Thereafter, accused-petitioners are before this Court under [SECTION] of [ACT]
3. I have heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for respondent-State.
4. The main grounds urged by the learned counsel for the petitioners are that there is no iota of evidence against accused-petitioners to connect the alleged crime. As such, they are entitled to be released by quashing the proceedings, which have been initiated against them. He would further contend that even though there is no material against the petitioner, the Court below has taken cognizance and has issued summons. He would further contend that a false case has been registered against accused-petitioners by concocting a false story. He has further contended that only with vengeance and to take revenge the alleged complaint has been filed. On these grounds, he prays for allowing the petition.
5. On the contrary, learned High Court Government Pleader appearing for the respondent-State vehemently contended that there is prima facie material against the accused-petitioners. The said fact has to be appreciated at the time of trial by the trial Court. He would further contend that the points raised by the learned counsel for the petitioners are the disputed questions of facts and this Court by exercising power under [SECTION] cannot verify the said facts by holding a mini trial. He would further contend that accused-petitioners have taken up the plea of alibi which has to be proved by the accused at the time of trial, now it cannot be looked into at this juncture. He would further contend that when the investigation has been completed and the charge sheet has been filed, the power of the High Court under [SECTION] has been seized and it is the Court below which has to consider the facts and take appropriate decision on the basis of material produced before it. To substantiate his contentions he has also relied upon the decision in the case of [PRECEDENT]. On these grounds, he prays for dismissal of the petition.
6. I have gone through the copy of the FIR, complaint and charge sheet material, which has been produced along with the petition. The main allegation in the complaint is that when one [ENTITY] got married the complainant, accused - petitioners objected for the same and in that context, there was exchange of words and they have also assaulted the complainant and others with hands and threatened her with life. It is admitted fact that, on the basis of the complaint, investigation was conducted and charge sheet has been filed, under what circumstances inherent power vested this Court under [SECTION] has to be exercised has been elaborately discussed in the case referred to supra at para Nos.9 and 10 which is as follows:
"9. In [PRECEDENT] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
10. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under [SECTION] of the [ACT], the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under [SECTION] of the [ACT] and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in [PRECEDENT]. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows:
"(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under [SECTION] of Code except under an order of a Magistrate within the purview of [SECTION] of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under [SECTION] of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
7. Keeping in view the above said proposition of law, the power possessed by this Court under [SECTION] of [ACT] are very wide and very plenitude of the power requires great caution in its exercise. While exercising such power Court must be careful and it must be based on sound principles. The inherent power should be exercised to stifle a legitimate prosecution. When entire material is not before the Court, normally this Court will refrain from giving a decision on an issue involved. Even though the learned counsel would raise several contentions of acts but it would be erroneous to assess the material which has been collected during investigation by the police. It is the evidence which is going to be led in the Court would decide the case. In that light, it cannot be held that there is no material or there is material against the accused. Under the above said circumstances, this Court cannot interfere with the disputed questions of facts and cannot exercise the power under [SECTION] of [ACT] Whether the said material is sufficient to take cognizance of the case or not is a matter which will be looked into by the Trial Court at the time of framing the charge. Even the petitioners have got remedy under [SECTION] or [SECTION] of [ACT] to file an application for hearing before the charge, where under the trial Court can look in to all the facts and can take an appropriate decision in accordance with law. When alternative remedy is there, then this Court cannot exercise power under [SECTION] of [ACT] The learned counsel for the petitioners would contend that if there is no material, definitely by exercising jurisdictional power vested with it the Court below can discharge. In the instant case on hand when charge sheet has already been filed and the Court below has taken cognizance, as laid down in the decision noted supra, this Court cannot exercise power under [SECTION] of [ACT] Keeping in view of the above said principles of law and facts of the case, there is no material to quash the proceedings, hence, the petition is dismissed.
However, the petitioners are at liberty to move the Court below for discharge by filing appropriate application before the Trial Court. The Court below to consider such application without prejudice to any of the observations made in this petition on merits.
JUDGE sdu Ct: MHS