(Arun Mishra and Vineet Saran, JJ.)
V. Krishna Jetty __________________________________ Appellant
v.
H.V. Suresh & Ors. ____________________________ Respondent(s)
Criminal Appeal No. 2002 of 2010, decided on November 1, 2018
The Order of the court was delivered by
Order
1. Heard learned counsel for the parties.
2. The appeal had been preferred by the deceased complainant. Since he has died, his legal representatives have been substituted.
3. It was alleged that with respect to the land bearing Survey No. 27 ad-measuring three acres and Survey No. 28 ad-measuring one acre, owned by D. Venkatappa who died on 14.10.1984, the Will had been fabricated by the eldest sister of the complainant by forging the signatures and it was purportedly executed on 10.10.1982.
4. The appellant approached the police by filing a complaint on 31.5.2000 against the illegal activities of the accused persons for commission of offence under Sections 467, 468, 471, 420, 120-B and 109 read with Section 34 of the Indian Penal Code, 1860. The inquiry was not made by the police on the ground that the matter was of civil nature.
5. In the circumstances, the complainant filed a private complaint on 8.7.2000 in the Court of Chief Judicial Magistrate, Bangalore, was registered as PCR No. 88/2000 against Smt. Jayamma, respondent Nos. 1-6 herein and one Mangamma, for taking appropriate actions. The C.J.M. on the same date referred the complaint to the police under the provisions of Section 156(3) of the Code of Criminal Procedure, 1973, for investigation and submitting a report.
6. The police had registered the case under the aforesaid sections. Respondent Nos. 1 to 6 filed Criminal Petition No. 2768/2000 in the High Court for quashing the proceedings initiated by the C.J.M. The said criminal petition was dismissed by the High Court on 8.8.2001, on the ground that the case has been referred to the jurisdiction police, it would not be proper to quash the proceedings. It was also observed that merely because a civil claim was maintainable, that did not mean that the criminal complaint could not be entertained. The police was directed by the High Court to investigate the matter and submit the final report as early as possible. However, inspite of clear direction by the High Court, the Inspector of Police did not submit a report for the reasons best known to him on the ground that investigation could not go on in view of the civil litigation pending and the order passed by the High Court was violated. The Investigating Officer filed “B” report in Criminal Petition No. 2768/2000 before the C.J.M. In the circumstances, the appellant filed a criminal contempt petition before the High Court.
7. On 1.12.2001, objection was filed to the “B” report. The trial court without hearing the complainant, accepted the “B” report, observing that complainant had not filed any objection. Immediately, at 11.30 a.m. on the same day, the complainant filed an application for recall of the order and to provide him an opportunity of hearing. The Magistrate recalled the order of accepting the report.
8. In the contempt petition, i.e., CCC No. 50/2001 filed by the appellant, the High Court observed that order was not complied with, as the High Court directed that regardless of civil litigation, allegations were required to be investigated and the report to be filed before the criminal Court. It was observed in the order passed by the High Court that corrective steps had been taken, the police officer had collected the documents and necessary corresponding evidence and that they were sent to the handwriting expert and report had been obtained. It was observed in the order passed by the High Court that after completion of the investigation, report would be filed before the criminal Court.
9. On 10.7.2002, accused No. 1 again questioned the process of investigation made by the Inspector of Police and Writ Petition No. 26747/2002 was filed in the High Court. The same was dismissed on 7.10.2003. Ultimately, a charge-sheet was filed on 11.5.2004 by the Sub-Inspector of Police against the accused persons for commission of aforesaid offence. The Court of 1st Additional Chief Metropolitan Magistrate, Bangalore, took cognizance and issued the summons in CC. No. 9016/2004.
10. Again a criminal petition was filed in the High Court at Bangalore, which was registered as Criminal Petition No. 3450/2004, challenging the summons issued by the Magistrate. The High Court without considering the judgment and order dated 24.6.2002 passed by the Division Bench of the High Court in CCC No. 50/2001 and the order dated 8.2.2001 passed by it in Criminal Petition No. 2768/2000, quashed the charge-sheet vide impugned order dated 29.11.2007. Aggrieved thereby, the present appeal has been preferred.
11. We have heard learned counsel for the parties.
12. It was submitted by learned counsel appearing on behalf of the respondent that in view of the law laid down by this Court in Surender Singh v. State of Bihar, reported in (2005) 12 SCC 361, though, the Magistrate having accepted the “B” closure report was not competent to recall the order and direct the investigation, thus, the entire procedure was bad in law. Apart from that, learned counsel has submitted that there is subsequent development that accused No. 1, against whom the main allegation was made for forging the Will, has died, thus, no case is made out to proceed against other accused persons, as such this Court should not interfere. It was also submitted that equities had been applied, as such this Court should not interfere in the matter.
13. After hearing learned counsel for the parties, we are of the considered opinion that the High Court ought to have considered the previous binding orders passed by it in CCC No. 50/2001 and Criminal Petition No. 2768/2000. In these cases, there was a clear direction issued by the High Court to make the investigation and to submit the report notwithstanding the pendency of civil case. The orders of the High Court were clearly binding on the Magistrate. The illegality was committed by the Magistrate in accepting the “B” report which was filed by the Inspector without making any investigation.
14. The High Court while passing the impugned order has also ignored and overlooked that it was under the order of the High Court that investigation has taken place and charge-sheet came to be filed before the concerned Court. Earlier accused No. 1 had failed in getting the proceedings quashed in the High Court and there was direction issued in the contempt petition to make further investigation and to submit the report in the aforesaid manner. Thus, it was wholly impermissible for the Magistrate to pass the order accepting the “B” report and the High Court ought to have considered the subsequent development that has taken place in the case.
15. This Court, in the case of Surender Singh (supra), relied upon by learned counsel appearing on behalf of the respondent, no doubt has held that Magistrate has no power to review its order, but in that case, only the maintainability of review was involved. In the instant case the order passed by the High Court comes in the way in entertaining the aforesaid submission. The orders are binding equally upon the accused persons. In the circumstances, we find that the High Court ought not to have interfered in the matter and quash the order of summoning passed by the C.J.M.
16. Thus, we have no hesitation in allowing the appeal. The objections raised with respect to effect of the death of accused No. 1 and whether any case has been made out against the other accused persons is left open since at present only charge-sheet has been filed and summoning has been made. At the stage of framing of charges, all such submissions can be raised by the accused persons, they have to be examined unfettered by any observation made in this order.
17. Coming to the tenuous objections raised by learned counsel appearing on behalf of the respondent about the belated substitution of legal representatives, has to be rejected and delay in filing substitution application of approximately one year is not such so as to disentitle them to prosecute the appeal, particularly, when appeal is pending in this Court for more than a decade. Thus, delay in filing substitution application for bringing on record the legal representatives of the deceased appellant is condoned and substitution allowed.
18. The impugned order passed by the High Court is set aside and appeal is accordingly allowed.
Criminal Appeal No(s). 2002/2010
V. Krishna Jetty __________________________________ Appellant
v.
H.V. Suresh & Ors ______________________________ Respondent(s)
Date : 01-11-2018 This appeal was called on for hearing today.
(Before Arun Mishra and Vineet Saran, JJ.)
For Appellant(s) Mr. V.N. Raghupathy, AOR
Mr. Somiran Sharma, AOR
For Respondent(s) Mr. S.N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. D.P. Chaturvedi, Adv.
Mr. Joseph Aristotle S., Adv.
Ms. Priya Aristotle, Adv.
Mr. Shiva P., Adv.
Ms. Aruna Hannah Dutta, Adv.
UPON hearing the counsel the Court made the following
ORDER
For Petitioner(s) Mr. C.U. Singh, Sr. Adv.
Mr. Lalit Kataria, Adv.
Mr. R.N. Karanjawala, Adv.
Ms. Ruby Singh Ahuja, Adv.
Ms. Deepti Sarin, Adv.
Mr. Shravan Sahny, Adv.
Mr. Sanjeet Ranjan, Adv.
Mr. Utkarsh Mishra, Adv.
For M/s. Karanjawala & Co., AOR
Mr. Huzefa Ahmadi, Sr. Adv.
Mr. Ranbir Singh, Adv.
Ms. Garima Prashad, AOR
For Respondent(s) Mr. Atmaram N.S. Nadkarni, ASG
Mr. R.P. Bhatt, Sr. Adv.
Ms. Preeti Purandare, Adv.
Mr. S. Sukumaran, Adv.
Mr. Anand Sukumar, Adv.
Mr. Bhupesh Kumar Pathak, Adv.
Mr. S. Santosh Rebello, Adv.
Ms. Ankhi Ghosh, Adv.
Mr. Raghav Sharma, Avd.
Mr. M. Jai Singh, Adv.
For Ms. Meera Mathur, AOR
Ms. Deepa M. Kulkarni, Adv.
For Mr. Nishant Ramakantrao Katneshwarkar, AOR
Official Liquidator Mr. Rajat Sehgal, Adv.
Mr. Vikas Mehta, Adv.
Ms. Sarushree, Adv.
Mr. Sushil Antal, Adv.
For Mr. Devashish Bharuka, AOR
Applicant(s) Ms. Anuradha Dutt, Adv.
Ms. Fereshte D. Sethna, Adv.
Ms. Ekta Kapil, Adv.
Mr. Anirudh Bakhru, Adv.
Mr. Kunal Dutt, Adv.
For Ms. Vijayalakshmi Menon, AOR
UPON hearing the counsel the Court made the following
ORDER
19. The appeal is allowed in terms of the signed order. Pending application, if any, shall stand disposed of.
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