Wednesday, 12 October 2016

When prosecution for offence under protection of human rights Act is liable to be quashed?

Admittedly, the petition filed on 10.10.2012 is a complaint for all purpose under Section 200 of Cr.P.C. r/w Section 30 of Protection of Human Rights Act, 1993 before the Sessions Judge. The Sessions Judge issued notice to the petitioner/accused on 10.10.2012, the date of presentation of the complaint and summoned him to appear before him. The very fact that the Sessions Judge issued notice to the petitioner goes to show that he took cognizance of the offences against them. The accused/petitioner appeared in response to the summons. The case came to be adjourned from time to time for years together and on 17.11.2014, after two years the Sessions Judge directed the office to register the case as PCR under Section 200 of Cr.P.C. r/w Section 30 of the Protection of Human Rights Act, 1993. After registration of the complaint under Section 200 of Cr.P.C. r/w Section 30 of the Protection of Human Rights Act, 1993, by order dated 28.03.2015 the learned Sessions Judge referred the complaint to S.P. Kodagu under Rule 6(2) of Karnataka States Human Rights Courts Rules for investigation and report. Thus, the learned Sessions Judge having taken cognizance on his own, at the first instance is not empowered subsequently to refer the complaint for investigation to Superintendent of Police, Kodagu. It is impermissible in law. As such, the proceedings are liable to be quashed for the said reason. Further, the complaint has been referred to the Superintendent of Police, Kodagu, for investigation who is arrayed as accused No. 2. Needless to say that an accused cannot be an Investigating Officer. On this count also the complaint is liable to be quashed.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Criminal Petition No. 2684/2015
Decided On: 05.04.2016
 Srikanth 
Vs.
The State of Karnataka and Ors.
Hon'ble Judges/Coram:P.D. Waingankar, J.
Citation: 2016 CRLJ(NOC) 271 Kar

1. In this petition under Section 482 of Cr.P.C. the petitioner/accused No. 4 has sought for quashing of the proceedings initiated against him by the respondent No. 2 in PCR No. 13/2014 (PHR No. 8/2012) on the file of the Prl. Sessions Judge, Kodagu, Madiken.
2. Respondent No. 2 presented complaint under Section 30 of the Protection of Human Rights Act, 1993 before the Sessions Judge at Madiken against the petitioner and others who are all Police personnel working as Police Constable, Sub-Inspector. The averments made out in the complaint in a nutshell are that the respondent No. 2 is in possession, enjoyment and cultivation of the immovable properties bearing Sy. No. 56/1 measuring 2.00 acres of lands situated at Makkanduru village, Madiken Taluk, Kodagu District. The petitioner and others who are police personnel of Somwarpet police station were not in good terms with the respondent No. 2. They were harassing respondent No. 2 in one way or the other. Therefore, respondent No. 2 filed complaint before the Sessions Judge to punish all of them for the offences punishable under Sections 166, 447, 504, 506 and 379 of IPC.
3. The order sheet of the Sessions Judge in PHR No. 8/2012 dated 10.10.2012 reads as under:--
"Issue notice to respondents by 29/12"
4. On 29.12.2012, one Sri. KSK, Advocate filed Vakalath for respondent Nos. 2, 3 and 4 and Sri. MYB filed Vakalath for respondent Nos. 5 and 6. The case was posted on 31.01.2013 awaiting notice of respondent No. 1. Thereafter, the case came to be adjourned to 02.03.2013, 30.03.2013, 22.04.2013, 29.05.2013, 09.07.2013, 10.09.2013, 22.10.2013, 25.11.2013, 23.12.2013, 22.01.2014, 17.03.2014, 29.04.2014, 30.06.2014, 29.09.2014, 20.10.2014, 27.10.2014, 17.11.2014. On 17.11.2014, the order sheet discloses that office was directed to register this case as PCR Under Section 200 of Cr.P.C. r/w Section 30 of Protection of Human Rights Act, 1993. The case was posted on 28.11.2014, 11.12.2014, 03.01.2015, 30.01.2015, 06.02.2015, 07.03.2015, 28.03.2015 on which day amended PCR was filed and same was referred to S.P. Kodagu District under Rule 6(2) of Karnataka State Human Rights Courts Rules, 2006 with the direction to investigate and submit report by 18.04.2015.
5. At this stage, the petitioner who is arrayed as accused has filed this petition to quash the proceedings on the ground that the Sessions Judge having taken cognizance on the complaint by his order dated 10.10.2012 and summoned the accused who attended the Court about 20 times as directed by the Sessions Judge, it is not open for the Sessions Judge to amend the complaint and refer it for investigation under Section 156(3) of Cr.P.C. It is further contended that the complaint has been referred under Section 156(3) for investigation and report to none other than the Superintendent of Police, Kodagu who is arrayed as accused No. 2 in the complaint. The accused cannot be an Investigating Officer. It is also contended that no prior sanction as required under Section 197 of Cr.P.C. has been obtained to take cognizance of the offences as against the petitioner who is public servant. For all these reasons, the learned counsel for the petitioner sought to quash the complaint and all further proceedings arising out of it.
6. On the other hand, the learned counsel appearing for the respondent No. 2/complamant relying upon the decision of the Supreme Court reported in MANU/SC/0703/2015 : (2015) 9 Supreme Court Cases 609 in the case of S.R. Sukumar v. S. Sunaad Raghuram, would submit that the amendment of the complaint is permissible, the amendment of the complaint is in noway changed the nature of the complaint or the relief claimed therein. The learned counsel further submitted that though accused No. 2 is a Superintendent of Police, Kodagu to whom the complaint has been referred for investigation, the allegations made out are against the Superintendent of Police who was working at Kodagu as on the date of the incident and therefore there is nothing wrong in referring the complaint to the present Superintendent of Police, Kodagu for investigation. Further, so far as sanction is concerned, it is submitted that the rules themselves speak that after investigation the records of the investigation will have to be submitted to the sanctioning authorities and therefore, the question of obtaining sanction will come into play at the time of taking cognizance of the offence by the Court and not at the time of referring the complaint for investigation. For all these reasons, the learned counsel for respondent No. 2/complamant has sought for dismissal of the petition filed by the petitioner.
7. Admittedly, the petition filed on 10.10.2012 is a complaint for all purpose under Section 200 of Cr.P.C. r/w Section 30 of Protection of Human Rights Act, 1993 before the Sessions Judge. The Sessions Judge issued notice to the petitioner/accused on 10.10.2012, the date of presentation of the complaint and summoned him to appear before him. The very fact that the Sessions Judge issued notice to the petitioner goes to show that he took cognizance of the offences against them. The accused/petitioner appeared in response to the summons. The case came to be adjourned from time to time for years together and on 17.11.2014, after two years the Sessions Judge directed the office to register the case as PCR under Section 200 of Cr.P.C. r/w Section 30 of the Protection of Human Rights Act, 1993. After registration of the complaint under Section 200 of Cr.P.C. r/w Section 30 of the Protection of Human Rights Act, 1993, by order dated 28.03.2015 the learned Sessions Judge referred the complaint to S.P. Kodagu under Rule 6(2) of Karnataka States Human Rights Courts Rules for investigation and report. Thus, the learned Sessions Judge having taken cognizance on his own, at the first instance is not empowered subsequently to refer the complaint for investigation to Superintendent of Police, Kodagu. It is impermissible in law. As such, the proceedings are liable to be quashed for the said reason. Further, the complaint has been referred to the Superintendent of Police, Kodagu, for investigation who is arrayed as accused No. 2. Needless to say that an accused cannot be an Investigating Officer. On this count also the complaint is liable to be quashed.
8. For the reasons stated above, the petition is allowed. The proceedings initiated in PCR No. 13/2014 (PHR No. 8/2012) on the file of the Sessions Judge, Kodagu, Madiken are hereby quashed.

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