TMI Blog2015 (2) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... d incongruous - 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. 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. - this writ appeal filed under Section 4 of the Karnataka High Court Act, 1961, is not maintainable. Appeal not maintainable. - Writ Appeal No. 2843 of 2014 (GM-RES) - - - Dated:- 9-2-2015 - Anand Byrareddy and N. Ananda, JJ. For Appellant: B.V. Acharya, Senior Advocate for P.N. Manmohan, Advocate For Respondents: A.S. Ponnanna, Additional Advocate General for B.A. Belliappa, Special Counsel JUDGMENT Anand Byrareddy, 1. This appeal seeks to challenge th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 Coordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tha 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 intact 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Cr.P.C., 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 Cr.P.C.. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Cr.P.C., 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 Lall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endence 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 subordinate courts and tribunals, but also has the power of judicial superintendence. The power o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinary power of the High Court under Article 226 of the Constitution of India or its inherent power under Section 482 Cr.P.C.. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 W.A. No. 16525/2011 dated 04.10.2011, writ appeals were allowed vacating the interim order of stay of issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh v. Nand Kishore Prasad (1968) 3 SCR 322, 324 : (AIR 1968 SC 1227 at pp. 1228-29 and Ahmedabad Mfg. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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