(Prayer: This Writ Appeal is filed under Section 4 of the Karnataka High Court Act, praying to set aside the order passed in the Writ Petition No.43825/2014 dated 9.10.2014.)
1. This appeal seeks to challenge the order of the learned single judge dismissing the writ petition filed by the appellant, under Article 226 and Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973.
2. The case of the appellant is as follows:-
The appellant, a 39 year old man, is said to be the Pontiff of the Shree Samsthana Gokarna - Shree Ramachandrapura Mutta, Hosanagara, Shimoga. The Mutta is said to have been established by the revered Shree Aadi Shankaracharya, about a thousand and three hundred years ago, at Gokarna, Kumta Taluk, Uttara Kannada District. He is said to have ordained a disciple, Shree Vidhyanandacharya, as the first Pontiff to manage the Mutta, the appellant is said to be the 36th Pontiff in the unbroken line of the Guruparampara of Shree Aadi Shankaracharya.
Shri Gokarna Mahabaleshwara temple at Gokarna was managed by the Mutta. With the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, having been enacted, the temple is said to have been notified under Section 23 of the Act in the year 2003. However, it is said that on the representation on behalf of the Mutta, to the effect that it was a temple that was inextricably a part of the Mutta, the State Government is said to have removed the temple from the list of notified temples. The management of the temple was said to have been reverted to the Mutta. This, it was claimed by the appellant, as being the root cause for the events that have followed, as several individuals with vested interests were affected by the new dispensation and as a consequence, a concerted and virulent 'smear' campaign, or a vilification campaign, was said to have been set in motion, particularly against the appellant, by recourse to various devises - one of which was the initiation of proceedings before this court by way of writ petitions, many espousing a purported public interest. Some of those petitions are pending even as on date.
The criminal proceedings which are the subject matter of the present proceedings are said to have arisen in the following background.
It is claimed that during the Chaturmasya Vratha, a prestigious and popular programme conducted by the Mutta, apart from various religious activities, is said to be the 'Ramakatha', or the glorious story of Lord Rama, depicted through a kaleidoscopic programme combining religious discourses, music, dance and drama. It is said to be an elaborate programme spread over a period of over two months, during July and September, every year. In the year of 2014, many artistes and personnel were involved in the programme requiring elaborate arrangements.
It is claimed that the key personnel managing the event, namely, one of the Directors, Dr.Gajanana Sharma, the Camp Manager, R.V. Madhyasta, a singer, Deepika, are all said to have received similar anonymous phone calls warning them of serious consequences that would befall the Mutta and particularly, the appellant, if they did not stop the Ramakatha programme and they were said to have been offered illegal gratification if they co-operated. All three of them are said to have immediately lodged independent complaints before the police, on 16.7.2014, 6.8.2014 and 21.7.2014, respectively, which are said to have been registered by the jurisdictional police in separate criminal cases.
It is claimed that on 13.8.2014, one Divakar Shastry had called B.R.Chandrashekara, said to be the Secretary, Internal Security Department of the Mutta and also functioning as the Co- ordinator of the Ramakatha Programme, making a demand to speak to the appellant directly and when he was refused permission, Chandrashekara is said to have been informed that Shastry's wife, Premalatha, who was a singer in the Ramakatha Programme, had been sexually abused by the appellant and that if Rs.3 crore was not delivered to a designated place at Bangalore, she would bring criminal charges of sexual abuse and exploitation by the appellant. Chandrashekara is said to have lodged a complaint as regards the above demand and threat with the jurisdictional police. Pursuant to which, Premalatha and Shastry, respondents 4 and 5, respectively, had been arrested by the police.
It is claimed that the police had recovered incriminating material from the possession of the said respondents 4 and 5 and one C.M.Narayan Shastry, who is said to be the brother of respondent no.5, which did indicate that they were preparing an elaborate plot to malign the image of the appellant in the eyes of the general public and more particularly to ensure that he stepped down from his position as the pontiff, on account of such a scandal.
It is stated that when respondents 4 and 5 were in custody, their daughter - Amushumathi, respondent no.2 herein, is said to have lodged a complaint dated 26.8.2014, before the Banashankari Police, in which, it was alleged that respondent no.4 had complained that she was sexually abused by the appellant and that she was about to lodge a formal complaint in respect of the same, as well as against other persons of the Mutta - it is on coming to know of her intention to do so, a false complaint was alleged to have been made against her parents and that the appellant and his associates had succeeded in forestalling the intended complaint by her mother. It was also alleged that the complainant and her sister were facing threats to their life from the inmates of the Mutta. The said complaint was registered as a case in Crime no.219/204, for offences punishable under Sections 354(A) and 506 of the Indian Penal Code,1860 (Hereinafter referred to as the 'IPC', for brevity). The same is said to have been transferred to the Girinagar Police, who in turn, had registered the case as Crime no.164/2014. The investigation was then taken up by the Criminal Investigation Department (CID), and the appellant had been interrogated by the Investigation Officer on eight different days between 14th and 30th October 2014, for over 40 hours. It is contended that as the appellant was certain that the Police were determined to arrest him on the basis of false allegations, he had approached this court by way of a writ petition.
Incidentally, pursuant to the complaint by the second respondent, and as the victim named in her complaint was respondent no.4, her mother, who was in custody, her statement was recorded, when she was in such custody - as part of the record in Crime no. 164/2014, as on 5.9.2014.
The gist of the statement is as follows :
Premalatha Divakar, is 48 and a resident of Bangalore. She lives with her husband-- respondent no.5 and her two daughters - the elder is said to be a BBM graduate in search of a job and the younger is said to be studying in PUC. Premalatha has a B.A. Degree in Music and is said to be a professional singer. Her husband is a consultant for a company called M/s Counter Export.
The family belongs to the Havyaka Brahmin community. Premalatha and her husband and their family are said to be devotees of the Mutta and temple for a long time and are said to be involved in rendering their services to the Mutta. Respondent no.5 was said to have held several top managerial positions in the management of the Mutta, over the years - on a honorary basis. He was said to have been closely associated with the appellant.
Premalatha is said to have commenced participating in the Ramakatha programme from the year 2010 on wards. She was one of the main singers. A troupe consisting of about 5 artistes are said to have regularly toured several places in India performing the Ramakatha, for which the Mutta would make arrangements. It is said that the appellant would also travel with them, on occasion.
During the year 2011, Ramakatha was performed during June to September. When they had performed at Ashoke, Gokarna on the last day, the appellant is said to have sent for Premalatha through his attendants and having received her in his quarters, is said to have praised her performance and expressed that the last few days were especially blessed and is said to have looked at her with, what appeared to be a lustful eye, before going into an inner chamber.
Again in the last week of September 2011, when the appellant was at the Girinagar Mutta, the appellant is said to have sent for her, in order to discuss the next programme. There were said to be other artistes at the meeting. After the meeting was over, the appellant is said to have requested her to stay a while as he wanted to talk her. When they were alone, the appellant is said to have again praised her performances and stated that Lord Rama had blessed her and that the Lord and he wanted her completely and is said to have again cast an amorous look at her. At which, she had withdrawn from the chamber with a Namaste. Again after four days, she was sent for, to attend a meeting and after the meeting, she was detained, similarly as on the previous occasion and the appellant is said to have expressed that she had not responded to the wish expressed earlier. Premalatha was said to have been confused and is said to have remained silent. The appellant is then said to have taken her to the ground floor, where there was an idol of Lord Rama and is said to have stated that there was a direct communication between the Lord and the appellant and that it was the Lord's wish that she must surrender completely to the "Guru - peeta ". And that His wish shall be done. And that she shall see the Lord in the appellant. While saying so, he is said to have warned her that this should be kept confidential as it was the Lord's doing. And immediately started caressing her shoulder and is said to have patted it. Premlatha is said to have been dumbfounded and again withdrew with a Namaste. However, she had not revealed this to anyone, not even her husband.
Then in the second week of October 2011, the petitioner was with a troupe that was to perform Ramakatha at Delhi. The appellant is said to have joined them. They had stopped at Mansar. From there, the appellant is said to have taken Premalatha and her younger daughter to Jodhpur, in his car. Again at Jodhpur, she was called alone to his chamber and asked to pray to Lord Rama and is said to have offered her prasada. After some discussion, with her - he is said to have risen to close and bolt the door to the room and returned to his seat and is said to have forced her on to his lap and started to kiss her passionately. After a while, he is said to have laid her on the floor and copulated with her. She is said to have silently endured it. She is said to remained in his company for atleast an hour and a half. She had not revealed the incident to anybody as she was suffused with the fear of divine wrath and felt bound by the vow forced on her by the appellant. It is said that she was said to have been sexually abused in the same fashion by the appellant, on all the four days that the troupe stayed at Jodhpur.
Further, it is said that during the period October 27 to November 5, 2011, the appellant is said to have sent for her at the Girinagar Mutta and followed the same pattern of asking her to pray to Lord Rama and offer her prasada and proceed to have sexual intercourse with her, on four occasions, during the above period. She is said to have undergone the treatment without any protest, except saying that it was unwanted.
Again it is said that she was sent for on November 8, 2011 at the Peraje Mane Mutta, Puttur and the appellant is said to have had sexual intercourse with her. On November 11, 2011, she is said to have been sent for at the Annapurneshwari Temple, Horanadu, for the purpose of recording a CD and the appellant is said to have taken her to a room by the temple, at about 8-30 PM and had engaged her in sex. Again on 18th November, she is said to have been taken to the home of one Kekkaru Ramachandra in R.T.Nagar, Bangalore, for performing a puja and is said to have had sex with her, when they were by themselves.
It is stated that in this fashion, she was routinely and repeatedly sent for and sexually abused by the appellant during their tours performing Ramakatha or other religious functions and activities or on the appellant sending for her to meet at places where he would be camping, in various places in Karnataka State and other places elsewhere in India. The statement of Premalatha details the dates, places and the number of times that she was so abused by the appellant, in a fascinating chronology. The modus operandi being identical as in the above instances - the bare particulars are indicated in tabular form below. This is only to acknowledge that she has furnished information in respect of such sexual activity spread over a three year period. And to avoid a monotonous repetition of the details.
The dates and places and the number of occasions Premalatha is said to have been ravished by the appellant, as per her statement October and 18.11.2011 stated above) 2 20.11.2011 (6days) Hrishikesh Twice every day: 12 8 21.03.2012 to 02.04.2012 Hosanagara, Shimoga 10 Temple, Siddapura 10 25.04.2012 to 28.04.2012 Bhankali Mutta near 3 Sidapura st near Mangalore 13 03.06.2012 to 08.06.2012 Kalamandira, Mysore 4 of September 2012 Malleshwaram, J.P.Nagar, Bangalore 16 16.10.2012 to 24.10.2012 Ambagiri near Sirsi 10 17 09.11.2012 to 17.11.2012 Mururu near Kumta 7 18 05.01.2013 to 09.01.2013 Kairangala Mudipu 4 19 19.01.2013 to 25.01.2013 Sri.Bharathi College, 5 Nanthoor, Mangalore 20 01.02.2013 to 07.02.2013 Jodhpur, Rajasthan 7 22 25.04.2013 to 28.04.2013 Sigandhur Temple, 4 Shimoga 23 1st week of May 2013 Mumbai Morning - Evening 04.06.2013 Giridhar Kaje, Sanjayanagar, Bangalore (Gap of nine months) week of June Bangalore 29 12.06.2014 to 18.06.2014 Agarwal Residency, 7 Kolkota 30 26.06.2014 to 27.06.2014 Girinagar Mutta, 2 Bangalore TOTAL 168* *(The total figure is supplied by the counsel for the appellant at the hearing) It is noticed that Premalatha had abruptly snapped all connection with the appellant from 4.6.2013 to 10.3.2014. And in the belief that the appellant would not any longer bother her - She had however come back come to the mutta again, to resume her religious and professional services as a singer. But to her dismay it is stated that she is said to have been put through the same routine by the appellant till 27.6.2014, when she completely stopped all contact with the appellant. She has stated that the goings on had been constantly observed by the appellant's personal attendants who were ever present.
On the last occasion that rape was committed on her - she has claimed that she had ensured that the semen stains of the ejaculate of the appellant, on her undergarments and clothes, was in tact and she had carefully preserved the same. It is thereafter that she had ultimately revealed the relationship and her travails to her sister-in-law, Sarita, on 29.4.2014, who in turn, had advised her to immediately confide in respondent no.5. However, it is on 30.6.2014, that Premlatha had informed her husband about the same. However, before they could take any action, it is stated that they had been arrested in the background as already stated.
3. Notwithstanding the filing of the writ petition and the pendency of these proceedings - the CID has proceeded with the investigation in the case initiated against the appellant and this court is informed that the CID is likely to file a Final report before the court below, soon. Be that as it may, the learned Senior Advocate, Shri B.V.Acharya, appearing for the counsel for the appellant, seeks to canvass the following aspects :
The First Information Report (FIR) registered in the case (under Section 354A and 506 of the IPC) is on the basis of the complaint dated 26.8.2014 given by the second respondent. The allegations in the complaint are not only hearsay, but also too vague and general and therefore the same could not have been the subject matter of the FIR and hence the same is liable to be quashed.
However, it is the case of the prosecution that subsequently, the statement of the mother of the second respondent Smt.Premalatha (Prosecutrix) was recorded on 5.9.2014 and on the basis of the said statement, the investigating agency intended to include Section 376 of the IPC in the case and permission of the Magistrate was sought in this behalf by producing the statement. The Magistrate has not permitted inclusion of this section essentially on the ground that he has no jurisdiction in the matter, as the case was by then transferred to CID. According to the prosecution, the foundation for inclusion of Section 376 IPC is the statement of prosecutrix dated 5.9.2014.
It is the case of the appellant that the case of rape put forward by the prosecutrix in the statement is absurd and so inherently improbable that no prudent man would act on the basis of the said statement and therefore, the proceeding in relation to Section 376 IPC is liable to be quashed.
In Bhajanlal's case, the Supreme Court has referred to few categories of cases where FIR could be quashed. One of them is -
"5. Where the allegations are 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".
The claim of rape is inherently incredible and it is settled law that even at the initial stage the court is entitled to sift the material on record to find out if there is a basis to proceed and even at that stage the court is not expected to accept everything stated by the prosecutrix as gospel truth, even if the same is opposed to common sense and broad probabilities of the case (1990 SCC 1962). In fact, the claim of the prosecutrix is totally false and defies logic.
A reading of the statement and the chronological events given therein with particulars would show that the same is highly improbable and it is impossible for any ordinary human being to believe the same. The conduct of the prosecutrix as gathered from the statement renders her version unbelievable and unacceptable.
More particularly, Shri Acharya would highlight the following circumstances, to emphasize that the allegations are incredulous and divorced from the normal response of an alleged victim of 'serial rape'.
The statement alleges that 168 instances of rape in the course of nearly three years. In all these instances, it is the case of the prosecutrix that at the instance of the appellant, she had gone to him when he committed acts of rape. In no instance, had the appellant gone to her and committed rape. It is most unnatural to accept that a person who is the victim of rape again responding to a call and voluntarily going to the place of the perpetrator, totally negatives a theory of rape. In particular, it is impossible to believe that a victim will go 168 times to her tormentor if really the prosecutrix was the victim of rape. The claim of the prosecutrix that these acts of rape have been committed in more than 40 places all over India again renders the version not only improbable, but also totally false.
On the admitted facts, the prosecutrix has travelled to all these places as a singer in 'Ramakatha' and she was accompanied by so-many others who were staying together. It is impossible to believe in such a situation the prosecutrix alone could be in the company of the appellant to enable him to commit rape. It is significant to note that the places where the entire troupe relating to 'Ramakatha' and the appellant were staying are either at temples or at the houses of devotees and in some cases, even in the residences of Archaks. It is impossible to believe that in such places it is possible for the appellant and the prosecutrix to be alone so as to enable commission of the alleged offences.
It is most improbable that these acts have been committed even in places where the prosecutrix was accompanied by her husband or daughter or both.
It is contended that the appellant having regard to the nature of his function as a Pontiff and in accordance with the tradition, has always been accompanied by many attendants and devotees. According to him, at no time of the day or night, he is all alone. Hence, there is no occasion for her to be alone with the pontiff.
Yet another important aspect which renders the theory of rape absolutely false is the admitted fact that since the beginning of June 2013, the prosecutrix voluntarily had stopped going to the Mutta or taking part in any programmes of the Mutta or meeting the appellant. It is her own unequivocal admission that during this period of six months between June 2013 till January 2014, none from the Mutta or on behalf of the appellant contacted her or made any request to her. She says that she has completely disassociated herself from the Mutta and the appellant during this six months. Thereafter, according to her, she voluntarily went and met the appellant and offered to continue to serve in the programmes of the Mutta. It is significant to note that according to her, by the time she made this offer, she was the victim of rape by the appellant 157 times. If this is true, it is impossible to believe that being away from the Mutta and the appellant for six months, the prosecutrix would voluntarily come back to the appellant and request him to permit her to continue to participate in the programme. This admitted case of the prosecutrix totally destroys her case of rape of 168 times and renders the same absolutely false. Thus, her conduct totally rules out the possibility of any rape.
According to the prosecutrix, the last two instances of rape were on 26.6.2014 and 27.6.2014 at Bengaluru. She claims that on 26.6.2014 she received a phone call from some one stating that the appellant wanted her to meet him. She claims that she voluntarily went to the Mutta in her car and at the Mutta, the appellant raped her. The conduct of the prosecutrix voluntarily going to the Mutta even though on 157 previous occasions, she was the victim of rape, renders her version totally false and unacceptable. Further on 27.6.2014, the next day, similar instance happens. She gets a phone call from the Mutta stating that the appellant wanted to meet her. If really, on 26.6.2014, she has been raped as alleged, would she on the next day voluntarily go again to the Mutta driving her own car and meeting the appellant, is a question that stares one in the face. But she claims that she was again raped on that day. It is hence contended that this version again is absurd.
Another significant point to be noted is about her failure to inform any one about these acts of rape all these three years, not even to her close relatives, including her husband and the daughters. According to the Evidence Act, immediately after an act of rape, the statement of victim to anyone is relevant evidence. Here the fact that for years on end, these acts are kept secret by the prosecutrix renders her whole version totally false and improbable. The explanation that she had been compelled to vow, not divulge the affair to anybody, on the threat of divine displeasure, is a lame excuse. It is impossible to believe that if she really gave so much importance to the threat of divine displeasure, or harm in case of disobedience of the oath, it was inexplicable that after three years, she could violate the oath and reveal all, without any fear of divine displeasure.
The concerted and unscrupulous plot and effort on the part of respondents 4 and 5 and their accomplices to tarnish the image of the appellant as being evident from the circumstance of the long period of delay in bringing a complaint of the alleged acts of the appellant, is sought to be urged with reference to the following circumstances.
The law requires that in case of serious crime, the same should be reported to the police immediately. This is more so in the case of a sexual offence. The failure of the prosecutrix to report the matter for more than three years is fatal to her case. The following observations of the Supreme Court in the case of Thuly Kali vs. State of Tamil Nadu, 1972(2) SCC 393, is very significant in the context of the present case.
"The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained."
In the present case, it is admitted that the prosecutrix herself has been making preparation for filing of the complaint of a rape case against the appellant at least for a couple of months prior to her statement on 5.9.2013. The evidence on record clearly shows not only legal advise was sought with regard to preparation of the complaint, but also the advise of an astrologer, with regard to the most suitable time to file a complaint against the appellant, particularly having regard to his horoscope and the time when his astrological signs would be weak and vulnerable. The admitted facts and in particular the material seized from the prosecutrix and her husband immediately after their arrest, including an iphone and an ipad, containing correspondence through e-mails, including a draft affidavit and a draft complaint apparently readied to be filed etc., clearly established the conspiracy to file a false case of rape against the appellant, so as to achieve the object of making him step down as the Pontiff. It is pointed out that in an televised interview, the husband of the prosecutrix is said to have admitted that they would not have filed the complaint if the complaint had not been filed one against them, alleging blackmail. The prosecutrix is also said to have stated that she had not decided to file a complaint, but was only toying with the idea of writing a true story of a wronged woman. She had admitted taking legal opinion as also having had the horoscope of the appellant being cast.
It is contended that the criminal proceedings are brought mala fide.
It is contended that in Bhajanlal's case, Illustration : 7 reads as under:-
"7. Where a criminal proceeding is manifestly attended with malafide 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."
It is contended that the fact that the complaint as per Annexure-K given on 17.8.2013, furnishing all the details of the threats by the prosecutrix and her husband including the demand of Rs.3.00 Crore as ransom clinches the issue in showing that this is a false case instituted after much deliberation and meticulous preparation. The circumstances clearly show that the complaint is manifestly attended with mala fides and it is instituted maliciously with ulterior motives. It is clear that a concocted version has been put forward with a view to tarnish the image of the appellant and this attempt has violated the fundamental right of the appellant. It is settled law that the right to reputation, is a facet of one's fundamental right and that the courts have always come to the rescue of the citizens whose reputation is sought to be tarnished with an ulterior purpose. It is hence contended that it is a fit case to exercise jurisdiction under Article 226 of the Constitution of India, which the learned Single Judge had failed to exercise.
Hence, it is emphasized that it is clear that all the proceedings in the present case are not only an abuse of process of law, but also opposed to the fundamental right of reputation enjoyed by the appellant at much personal sacrifice. And the respect and reverence he has amongst his followers, as the Pontiff, is jeopardized. It is therefore contended that the proceedings deserve to be quashed, to meet the ends of justice.
4. The learned counsel appearing for the respondents, namely, Shri A.S.Ponnanna, Additional Advocate General, for Respondents 1 and 3 and Shri T.S.Amar Kumar, appearing on behalf of respondents 4 and 5, vehemently oppose the appeal and have raised a preliminary objection to the very maintainability of the appeal. It is urged that the learned single judge has consciously exercised jurisdiction under Section 482 of the CrPC, though the writ petition was styled as one filed under Articles 226 and 227 of the Constitution of India, read with Section 482 of the CrPC. And hence a writ appeal filed under Section 4 of the Karnataka High Court Act, 1961, was not maintainable.
5. In the light of the above contentions, and on a consideration of the material available and the large number of authorities cited at the Bar, we proceed to address the preliminary objection as regards maintainability.
It is seen that the learned single judge has held thus:
"13. The petition is filed by way of writ proceedings, though the nomenclature of the proceedings is by way of writ, but in fact it is a petition seeking quashing of the entire proceedings, which subject is covered under Section 482 of Cr.P.C"
And further the learned single judge has expressed thus:
"36. In view of the above said submissions and rulings cited by the learned counsel and on facts, this court while dealing with the matter under Section 482 cannot give any finding whether the explanation given for the delay is properly explained or whether such delay has resulted in embellishment or concoction of a story against the petitioner or whether such explanation is improbable. It is to be noted that at the time of exercising powers under Section 482 Cr.P.C., the court cannot go in detail with regard to the factual aspects of the case to find out the truth or falsity of the explanation given and comparing the same with other parts of the First Information Report and the statement of the victim."
There is hence no doubt that the learned single judge was firm in his view that having regard to the circumstances of the case and the nature of relief sought, namely, the quashing of the first information registered in Crime no.164/2014 for offences punishable under Sections 354A, 506 and 376(2)(f) IPC, which relief could only be granted under Section 482 CrPC, and that the invocation of Articles 226 and 227 of the Constitution of India was immaterial.
In this context, it is seen that in the case of Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998)5 SCC 749, wherein the order of issuance of process under Section 204 CrPC was called in question, while examining whether the nomenclature under which the petition was filed was relevant, the apex court has held thus :
"26. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
And further while examining the powers of the High Court under Articles 226 and 227 of the Constitution of India and Section 482 of the CrPC, the apex court has expressed thus:
"22. It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal1 this court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guideline is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for exercise of powers by the High Court under Articles 226 and 227 may be referred to.
23. In Waryam Singh v. Amarnath, AIR 1954 SC 215, this Court considered the scope of Article 227. It was held that the High Court has not only administrative superintendence over the subordinate courts and tribunals but it has also the power of judicial superintendence. The court approved the decision of the Calcutta High Court in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951CAL.193, where the High Court said that the power of superintendence conferred by Article 227 was to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. The Court said that it was, therefore, a case which called for an interference by the Court of the Judicial Commissioner and it acted quite properly in doing so.
24. In Babhutmal Raichand Oswal v. Laxmibai R. Tarta, AIR 1975 SC 1297, this Court again reaffirmed that the power of superintendence of High Court under Article 227 being extraordinary was to be exercised most sparingly and only in appropriate cases. It said that the High Court could not, while exercising jurisdiction under Article 227, interfere with the findings of fact recorded by the subordinate court or tribunal and that its function was limited to seeing that the subordinate court or tribunal functioned within the limits of its authority and that it could not correct mere errors of fact by examining the evidence or reappreciating it. The Court further said that the jurisdiction under Article 227 could not be exercised, "as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issues raised in the proceedings". The Court referred with approval the dictum of Morris, L.J. in Rex v. Northumberland Compensation Appeal Tribunal, (1952)-1 ALL. ER 122.".
From the above observations, it is clear that the High Court while exercising jurisdiction under Article 227 of the Constitution of India has not only administrative superintendence over the sub- ordinate courts and tribunals, but also has the power of judicial superintendence. The power of superintendence conferred by Article 227 has to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting their mere errors. Having regard to the nature of relief sought for by the appellant it cannot be said that Article 227 of the Constitution of India is attracted. And that notwithstanding the nomenclature of the petition, the learned single judge has dealt with and decided the petition under Section 482 CrPC.
6. Further, from a plain reading of the writ petition and the statement of objections and the circumstances of the case as sought to be presented, it is evident that there are seriously disputed facts and that by itself would render the proceedings under Article 226 of the Constitution of India, as being wholly inappropriate and incongruous.
In the case of S.N.Sharma v. Bipen Kumar Tiwari, (1970)1 SCC 653, the apex court has indicated a situation where Article 226 could be successfully invoked :
"57. It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer malafide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers. The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in section 156 of the Code."
In the case on hand, the petitioner has no grievance that the power of the investigation officer has been exercised mala fide or that the police officer has been misusing his powers. Therefore, the appellant is hardly in a position to invoke the jurisdiction of this court under Article 226 of the Constitution of India.
7. Much reliance was placed on State of Haryana v. Bhajan lal, 1992 SCC (Cri) 426, and the line of cases following the same, to contend that the guidelines laid down in Bhajan lal are with reference to the extra- ordinary power of the High Court under Article 226 of the Constitution of India or its inherent power under Section 482 CrPC. In order to appreciate this contention, it is necessary to refer to the following passage from the said judgment :
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) 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 F.I.R. 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 155(2) 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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide 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."
8. In Bhajanlal's case, the Supreme Court has considered and rejected the contentions and arguments advanced on behalf of the accused (Bhajanlal) that the criminal proceeding therein was manifestly attended with mala fides and was instituted with an ulterior motive of wreaking vengeance against the accused with a view to spite him on account of a private and a personal grudge.
The Supreme Court noticing that the Inspector of Police (appellant no.3 therein) was not a designated officer to investigate the case registered under Section 5(2) of the Prevention of Corruption Act and also under Sections 164 and 165 IPC, has held that Section 5-A of the Prevention of Corruption Act, 1947, is mandatory and not discretionary and the investigation conducted in violation thereof bears the stamp of illegality. The Supreme Court passed the following order:
"140. We set aside the judgment of the High Court quashing the First Information Report as not being legally and factually sustainable in law for the reasons aforementioned; but, however, we quash the commencement as well as the entire investigation, if any, so far done for the reasons given by us in the instant judgment on the ground that appellant 3 (SHO) is not clothed with valid legal authority to take up the investigation and proceed with the same within the meaning of Section 5-A(1) of the Prevention of Corruption Act as indicated in this judgment. Further we set aside the order of the High Court awarding costs with a direction that the said costs is payable to the respondent 1 (Shri Bhajan Lal) by respondent 2 (Dharam Pal).
141. In the result, the appeal is disposed of accordingly but at the same time giving liberty to the State Government to direct an investigation afresh, if it so desires, through a competent police officer empowered with valid legal authority in strict compliance with Section 5-A (1) of the Act as indicated supra. No order as to costs."
Thus, we find that in Bhajanlal's case, the Supreme Court has quashed the criminal proceedings on the ground that there was an express legal bar under Section 5-A of the Prevention of Corruption Act, 1947, for the inspector of police to investigate the case registered under Section 5 of the Prevention of Corruption Act, 1947 and Sections 164 and 165 IPC.
In the case on hand, the learned Single Judge has held that petitioner has invoked Illustrations 1, 5 and 7 laid down in the case of Bhajan Lal.
Illustration (1) reads thus:
"(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."
We find that the allegations made in the first information accepted on their face value do constitute cognizable offences.
Illustration (5) can be invoked when the allegations made in the complaint or the first information 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.
The petitioner has also invoked Illustration (7) reading as hereunder:
"(7) Where a criminal proceeding is manifestly attended with malafide 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."
In the case on hand, to record findings on the allegation of first information with reference to illustrations 5 and 7, we need to appreciate evidence and also consider certain documents relied upon by petitioner which have been disputed by the respondents.
The respondents have also disputed the averments of the petition. In our considered opinion, this exercise of resolving disputed facts and acceptance of disputed documents cannot be undertaken in a petition filed under Article 226 of the Constitution of India. On the other hand, such power may, to a certain extent, be exercised under section 482 Cr.P.C., only to prevent the abuse of process of law.
The contention of Shri Acharya that the right to protection of the reputation of the appellant is a fundamental right and in the face of his reputation being tarnished, he would be entitled t o invoke the jurisdiction of this court under Article 226 of the Constitution of India, while seeking to draw inspiration from the decision of the case in State of Bihar v. Lal Krishna Advani, (2003)8 SCC 361, is also not tenable. In the said decision, the apex court has held that certain remarks touching upon the reputation of Mr.L.K.Advani recorded by the Commission of Enquiry without affording an opportunity to Mr.L.K.Advani would violate fundamental rights of Mr.L.K.Advani. The Supreme Court has confirmed the order of the High Court that the objectionable points of the report shall be inoperative.
In the case on hand, allegations made against the petitioner in the first information are yet to be investigated. At this stage, it is not possible to hold that allegations made in the first information report would affect the reputation of the appellant. Or that the appellant could invoke the jurisdiction of this court under Article 226 of the Constitution of India.
At this stage, we deem it proper to refer to one more facet of the case, while drawing attention to the following passage from Bhajan lal's case :
"104. It may be true, as repeatedly pointed out by Mr.Parasaran, that in a given situation, false and vexatious charges of corruption and venality may be maliciously attributed against any person holding a high office and enjoying a respectable status thereby sullying his character, injuring his reputation and exposing him to social ridicule with a view to spite him on account of some personal rancour, predilections and past prejudices of the complainant. In such a piquant situation, the question is what would be the remedy that would redress the grievance of the verily affected party? The answer would be that the person who dishonestly makes such false allegations is liable to be proceeded against under the relevant provisions of the Indian Penal Code - namely under Section 182 or 211 or 500 besides becoming liable to be sued for damages."
The learned single Judge has held that if the Investigation Officer finds that the allegations are falsified during the course of investigation, he should not only exonerate the accused by filing an appropriate report to the court, but also, as a sincere and honest public servant, take necessary stringent action against the person who instituted such a false case against the accused and to bring the said person to book. The law is wide enough and strong enough for such actions.
In our considered opinion, the contention of appellant that the first information was lodged to injure his reputation and expose him to social ridicule, with a view to spite him on account of some personal rancour, predilections and past prejudices of the complainant cannot be considered under article 226 of the Constitution of India. For the appellant after completion of investigation, has a remedy to redress his grievance by taking recourse to law, as laid down in the case of Bhajan Lal.
9. Shri Acharya has also relied on the following decisions of this court:-
(1) W.A.No.4052/2013 c/w W.A.No.4053/2013 (GM-RES) dated 29.11.2013 and (2) W.A.Nos.16522-24/2011 and W.A.No.16525/2011 dated 04.10.2011.
We have gone through these judgments.
In W.A.No.4052/2013 c/w W.A.No.4053/2013 (GM-RES) dated 29.11.2013, the point that arose for consideration before the learned single Judge was:-
"Whether it would not be competent for a private complaint to be filed under section 200 of the Cr.P.C., against a public servant for offences punishable under the provisions of the P.C.Act?"
It is obvious that the aforestated question was determined by the learned single Judge having regard to the provisions of the Code of Criminal Procedure Code, 1973 and the provisions of the Prevention of Corruption Act, 1988. In the circumstances, this court had held that the writ appeal was maintainable against the order of the learned Single Judge.
We notice from the judgment in W.A.No.4052/2013 connected with W.A.No.4053/2013 (GM-RES) dated 29.11.2013, a Division Bench of this court, has followed the judgment of a seven judge Bench of this court, reported in Thammanna D Battal vs. Renuka R Reddy, AIR 2009 KAR 119. The writ petition in the aforestated writ appeals was not filed to quash the first information registered under section 154 Cr.P.C.
In W.A.Nos.16522-24/2011 and W.A.No.16525/2011 dated 04.10.2011, writ appeals were allowed vacating the interim order of stay of issuance of summons to the accused in proceedings initiated under the provisions of the Prevention of Corruption Act, 1988. The Division Bench has held:-
"32. ........When such a power is exercised in the teeth of the aforesaid statutory provision and the judgment of the Apex Court which is brought to the notice of the learned Single Judge and also the fact that the Division bench of this Court in the proceedings initiated by the very same petitioner, declined to grant stay on the aforesaid grounds, the learned Single Judge could not have exercised his power under Article 226 and 227 of the Constitution to grant stay on the grounds which are set out above. Thus, as an Appellate Court, this Court cannot be silent spectator. When the law declared by the Apex Court is not obeyed, when the express statutory provision inserted by the Parliament with the object of combating rampant corruption in public life is ignored, then it becomes the duty of this court to step in and set right the abrasion in the administration of justice, as otherwise the confidence of common man in this institution would be impaired."
Therefore, what has been held by this court in the aforestated appeals is not applicable to the instant case.
10. Reference was also made by Shri Acharya to a judgment of the Andhra Pradesh High Court - Gangaram Kandaram v. Sunder Chikha Amin, ALD(Cri)2000-1-625, to contend that the exercise of powers under Article 226 of the Constitution of India by issuing a writ in quashing the first information report is not in exercise of criminal jurisdiction.
We are not persuaded to accept the submission of the learned senior counsel, in view of the decision of the Supreme Court, reported in Umaji Keshao Meshram and others Vs. Smt.Radhikabai and another, AIR 1986 SC 1272, wherein the Supreme Court has held:
"100. .... A series of decisions of this Court has firmly established that a proceeding under Article 226 is an original proceeding and when it concerns civil rights, it is an original civil proceeding (see, for instance, State of Uttar Pradesh v. Dr. Vijay Anand Maharaj (1963) 1 SCR 1, 16, (AIR 1963 SC 946 at p.951), Commr. of Income-tax, Bombay v. Ishwarlal Bhagwandas (1966) 1 SCR 190, 197-8 : (AIR 1965 SC 1818 at p.1822), Ramesh v. Gendalal Motilal Patni (1966) 3 SCR 198, 203 : (AIR 1966 SC 1445 at p.1447), Arbind Kumar Singh v. Nand Kishore Prasad (1968) 3 SCR 322, 324 : (AIR 1968 SC 1227 at pp.1228-29 and Ahmedabad Mfg. and Calico Ptg. Co. Ltd. v. Ramtahel Ramnand (AIR 1972 SC 1598)."
11. In view of the above discussion, we hold that the petition filed before the learned single Judge, notwithstanding its nomenclature, as one filed under Articles 226 and 227 of the Constitution of India read with section 482 Cr.P.C., was actually one filed under section 482 Cr.P.C. The learned single Judge was justified in treating and deciding the petition under Section 482 Cr.P.C.
Therefore, this writ appeal filed under Section 4 of the Karnataka High Court Act, 1961, is not maintainable.
12. Before parting with this case - it is pertinent to observe that we have come across several instances where writ petitions are filed before this court seeking the quashing of first information reports, the investigation and final reports in nascent criminal cases; while ambiguously invoking the writ jurisdiction of this court as well as its inherent power, without there being specific averments to disclose the circumstances that would warrant the exercise of the appropriate jurisdiction. Therefore, we are of the opinion that in petitions of such nature, it is imperative for the petitioners to make specific averments of the jurisdiction invoked by them to avoid anomalous situations, which would arise, while determining the appellate jurisdiction.
The present case is an apt example of such ambiguous petitions. It has consumed much of this court's time, at the cost of the exchequer and to the detriment of other litigants - with graver concerns.
It would certainly warrant the appellant being mulcted with costs. However, he is said to be a man of the Holy Order and hence would not be expected to possess any personal wealth, the costs, if imposed, would come from the coffers of an institution which may indeed be involved with religious activity for the benefit of its followers and humanity in general. Hence, we stop short of imposing costs.