ORDER
M.S. Rajendra Prasad, J.
1. All these cases involve common questions of law and facts. Common arguments have been advanced by both sides. Hence, common order.
2. All these petitions arise out of the order dated 17-4-2003 passed in C.C. No. 131 of 2003 on the file of the Judicial Magistrate First Class, Challakere, taking cognizance of a case against the accused for various offences punishable under Sections 167, 417, 420, 464, 465, 468, 470, 504, 506 and 463 read with 34 of the IPC and for the offence punishable under Section 3(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, challenging the legality and propriety of the said order.
3. The Court has heard the arguments of Sri G. Krishna Murthy, learned Counsel on behalf of the petitioners-accused and Sri A. Nagarajappa, learned Counsel on behalf of the respondent-complainant.
4. The learned Counsel for the petitioners-accused strenuously contended that the material on record clearly shows that the order impugned is illegal and improper. There is absolutely no prima facie case made out against the accused for the said offences. There has been inordinate delay in lodging the complaint. There is no mention of the acts and omissions on the part of the accused for the offence under the provisions of the SC and ST Act either in the civil suit or in the complaint made before the police, which document had come into existence at the earliest point of time. The allegations in this regard had been made for the first time, in the private complaint filed after a long delay. The learned Counsel also contends that there is no sanction for prosecuting the accused for the said offences under the provisions of the Criminal Procedure Code as, admittedly, all of them have been public servants. The learned Counsel also contends that as per the sworn statement of the complainant, the incident is said to have taken place on 18-3-2003 and the complaint had been given to the police on 18-3-2003, whereas in the complaint filed before the Court, a reference is made that the incident had taken place on 31-3-2003 and the complaint was made to that effect on that day. The learned Counsel also contends that as per the complaint allegations, the alleged incident had taken place on 18-3-2003 and as per the sworn statement of the witnesses examined on behalf of the complainant, the incident had taken place on 31 -3-2003. He also contends that as per the police endorsement, the complaint had been given at 3.00 p.m., whereas the alleged incident is said to have taken place at 4.00 p.m. He further contended that the instant complaint had been filed with a mala fide intention of harassing the accused. It is also his contention that continuation of the proceedings before the Criminal Court amounts to abuse of process of law and this is a fit case for this Court to exercise powers under Section 482 of the Cr. P.C. The learned Counsel relied upon the following decisions in support of his contentions:
1. Pepsi Foods Limited and Anr. v. Special Judicial Magistrate and Ors. ;
2. State of Karnataka v. L. Muniswamy and Ors. ;
3. State of West Bengal and Ors. v. Swapan Kumar Guha and
Ors. ;
4. State of Haryana and Ors. v. Ch. Bhajan Lal and Ors..
Placing reliance on the ratio laid down in the said decisions, he prayed for allowing the petitions.
5. On the contrary, the learned Counsel for respondent-complainant strenuously contended that the material on record clearly shows that the order impugned is legal and proper. There has been a prima facie case made out against the accused for the said offences. The learned Magistrate was totally justified in passing the order impugned. He also contends that extraneous matters need not be taken into consideration by this Court at this stage. He also contends that in the petitions filed before this Court, there is no specific dental with regard to the complaint averments and this Court cannot hold a mini trial at this stage while exercising the powers under Section 482 of the Cr. P.C. He also contended that there is no nexus between the offences committed by the accused and the office they hold. Such being the case, the question of sanction does not arise. He also contends that this would not be the proper stage for this Court to interfere with the proceedings before the lower Court. The learned Counsel has also taken me through the object in enacting the provisions of the SC and ST Act. He relied upon the following decisions in support of his contentions:
(1) K.S. Jayanth Kumar and Ors. v. BNP Paribas, Bangalore ;
(2) P.K. Pradhan v. State of Sikkim ;
(3) Jagdish v. State of Rajasthan 1994(3) Crimes 846 (Raj.);
(4) Kaliya Perumal v. State 1998(1) Crimes 165 (Mad.)
Placing reliance on the ratio laid down in the said decisions, he prayed for dismissal of the petitions.
6. The Court has carefully perused the material on record and has given its anxious thoughts over the rival contentions raised at the Bar.
7. Before proceeding further, it is necessary to mention a few factual aspects that would be necessary for arriving at a just conclusion. The petitioners herein are the accused in C.C. No. 131 of 2003 and admittedly A-1 is the Chief Officer, A-2 is the Revenue Officer and A-3 is the President of the Town Municipal Council, Challakere. It is seen from the record that the Municipal Council had issued a notification on 11-3-2003 for holding auction for collection of toll fee in respect the Bus Stand, Santhe Maidana and Vegetable Market. The auction was scheduled to be held on 18-3-2003. On that day, a public auction was said to have been held and it is the definite case of the complainant that he had not been intimated about the auction though he had paid the earnest amount as required and fraud had been committed by the accused. In this regard, it is necessary to mention that on 19-3-2003, a civil suit had been filed in respect of holding of public auction by the Municipal Council alleging illegalities committed by the officers concerned. From the material on record, it is also seen that on 31-3-2003 at 3.00 p.m., a complaint had been submitted by the complainant before the police alleging illegalities committed by the officers of the Municipal Council with regard to holding of auction. It is interesting to mention that both in the civil suit and in the complaint filed before the police, there is absolutely no whisper with regard to the accused uttering the abusive words against the complainant by using the name of his caste. The allegations in this regard had come into existence for the first time in the private complaint lodged by the complainant on 4-4-2003, before the learned Magistrate. The learned Magistrate, on 5-4-2003, had recorded the sworn statements of the complainant and his witnesses and on 17-4-2003, the learned Magistrate had passed the impugned order, taking cognizance of the case against the accused for the said offences. It is pertinent to mention that the alleged incident is said to have taken place on 18-3-2003 and there has been inordinate delay in filing the complaint. Moreover, there is no mention of acts and omissions on the part of the accused for attracting the provisions of the SC and ST Act either in the civil suit or in the complaint filed before the police. It is also interesting to mention that as per the sworn statements of the witnesses examined on behalf of the complainant, the alleged incident is said to have taken place on 31-3-2003, whereas the definite case of the complainant is that the alleged incident had taken place on 18-3-2003. If really the incident had taken place on 18-3-2003 and there had been acts and omissions on the part of the accused so as to attract the provisions of the SC and ST Act, when the complainant had rightly tapped the doors of the Civil Court complaining about the illegalities committed by the accused while holding public auction, he would not have forgotten to file a complaint before the police. The inaction on the part of the complainant in this regard and the delay in filing the complaint before the Magistrate making specific allegations against the accused so as to attract the provisions of the SC and ST Act clearly shows that the case put forth by the complainant will have to be appreciated with a pinch of salt. No doubt, by settled principle of law, this Court has to exercise inherent powers with care, caution and circumspection and in rarest of rare cases. In view of the statutory provisions, this Court will also have to take into consideration as to whether continuation of the proceedings against the accused will amount of abuse of process of law.
8. At this stage, it is necessary to mention that in a decision of the Apex Court in M/s. Pepsi Foods Limited’s case, supra, the Apex Court has held that summoning of an accused in a criminal case is a serious matter. The criminal law cannot be set into motion as a matter of course. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto.
9. From the material on record, it is also seen that the petitioners have also placed on record a list of persons who had deposited the amounts for participating in the auction and their signatures for taking back the amounts. From the material on record, it is seen that the main grouse of the complainant is that the accused had held the auction in his absence, though he had also deposited the amount for participating in the auction and the said amount had not been refunded and the accused had committed the said offences punishable both under the provisions of the IPC and SC and ST Act.
10. No doubt, this Court, while exercising the powers under Section 482 of the Cr.P.C., is not expected to hold a mini trial, which exercise has to be done before the Trial Court at the full dressed trial. But, at the same time, it should not also be forgotten that when strong grounds are made out for this Court to exercise powers under Section 482 of the Cr.P.C., this Court would be totally justified in making such exercise. It is also necessary to mention that the offence under the provisions of the SC and ST Act is a serious offence and one cannot afford to close his eyes for such a heinous crime. But, at the same time, one cannot take recourse to misuse the said provisions.
11. Taking into consideration the facts and circumstances of the case and the settled principle of law in this regard, in the opinion of this Court, continuation of proceedings before the lower Court amounts to abuse of process of law and this is one of the classic cases where this Court will have to exercise inherent powers to prevent the abuse of process of Court.
12. For the foregoing reasons, the petitions are allowed. The order impugned is hereby set aside. Consequently, the proceedings in C.C. No. 131 of 2003 on the file of the Trial Court stand quashed.
