TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1324
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....ree 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 be....
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..... 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 ....
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....n 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 tha....
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....ed. 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 parti....
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....nce 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....
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....'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 o....
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....fair 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 v. 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 res....
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....er:-- "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 j....
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....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 Cr.P.C., 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 Cr.P.C. 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 c....
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....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 1951 Cal. 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 Raicha....
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.... 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 ....
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....l 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 1....
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....ent 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....
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....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 & 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 ....
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....wers 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 v. 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. & 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 ....