S VENKATARAMAN Vs. P V SINGRI

JUDGEMENT

(1.) This is an unusual contempt proceeding in which the Petitioner has alleged Criminal Contempt on the part of the learned 4th Addl. Chief Metropolitan Magistrate, Bangalore. The petitioner had instituted a private prosecution before that Court alleging a series of offences on the part of 3 accused who were basically Contractors/Builders with whom the petitioner and his co-residents had certain dealings. The petr. had inter alia alleged offences of cheating, breach of trust and a host of other charges under the Karnataka Apartment Ownership, Flats (Regulation of the Promotion of Construction, Sale, Management and Membership) Act 1972. It is unnecessary for us to set down the facts of the charges in detail except to mention that as often happens, a long period of time had elapsed between the transactions when they originally commenced and what transpired thereafter. The learned trial Magistrate came to the conclusion that the dispute was of a purely civil character and therefore summarily dismissed the complaint against which the petr. preferred a revision application where again he was unsuccessful. The matter thereafter came up to this Court by way of Crl. Ptn. 460/92 and this Court after hearing the parties by an order dated 30-3-1994 set aside the orders of both the lower Courts, allowed the petition and directed the learned Magistrate to "entertain the petition of the complainant and dispose of the same in accordance with law."

(2.) Effectively, the High Court having restored the original complaint, the learned trial Magistrate took down the verification statement of the complainant and thereafter passed a detailed speaking order in which he recorded the fact that there was sufficient ground to proceed against the accused in respect of the offences that had been alleged and therefore directed the issue of process. After the accused were served, they appeared before the Court and filed applications under S. 245(2), Cr. P.C. contending that the accused were liable to be discharged having regard to the fact that the charges against them were groundless. The petr. resisted the application and he has demonstrated that apart from the various citations, that detailed written submissions were filed before the trial Court and the petr. pointed out that he had produced a considerable amount of documentary material in support of his complaint in addition to which that he proposed to examine a series of witnesses, some of whom were responsible officers and that therefore, there was no warrant to allow the application under S. 245(2) Cr. P.C. One of the contentions raised on behalf of the accused was that some of the charges particularly in relation to the Apartment Ownership Act and Rules prescribed relatively short sentences and that consequently, these offences were time barred. Apart from this, the contention was that there was no dishonesty or criminality involved and that therefore, even assuming a civil dispute existed, that there was no ground for a criminal Court to proceed against the accused. The learned trial Magistrate upheld both these contentions and passed an order dt. 15-12-1995 discharging the accused and consequently dismissing the complaint. The petr. has preferred a revision application against that order which is pending before the Court of Session. This proceeding deals with an entirely different facet of the law.

(3.) The petr. who is aged 77 and whose grievance is that he and his conflate owners have been, according them, deceived and put to serious monetary loss and that they are entitled to prosecute the accused and get them punished according to law and the petr. contends that instead of examining the grievance, that on the previous occasion the litigation went all the way up to the High Court which Court disapproved of the summary dismissal of the complaint and he contends that despite a specific direction from the High Court that the learned trial Magistrate has in rank defiance of the High Court Order passed virtually the same order once again. The petitioner's contention is that as far as the legalities of the order are concerned that undoubtedly he is required to go to the Sessions Court but he has alleged very serious impropriety on the part of the Judicial Officer because he submits that this is a case of wanton disregard and virtually defiance of the High Court direction and he has further alleged that all is not well with this order. He has demonstrated for instance that this is a case in which the High Court had occasion to examine the material which the complainant had produced in considerable detail and that the High Court came to the conclusion that this was a case which required to be entertained. In this background, the petr. submits that it was incumbent upon the trial Court to have respected the High Court's order and to have applied its mind to the case by accepting the evidence which the complainant desired to produce and thereafter decide the matter on merits. His contention is that without going through this procedure as prescribed by law and by straight away entertaining and allowing an application under S. 245(2), Cr. P.C., the learned Magistrate has virtually sat in appeal over the order passed by the High Court in so far as there was no difference between the record that was before the High Court and the trial Court and the High Court having come to the conclusion on that very record that the case required to be entertained, that it was not only an act of impropriety but that it was downright defiance of the High Court order to take a different view on the same material. The petr. did project another aspect of the matter which in our considered view is of considerable significance. He submitted that as a litigant when he has come to the Court with a substantial grievance and when the High Court itself had come to the conclusion that the case is required to be enter-tained and. for this purpose remanded the matter to the trial Court, that it would constitute an interference with the due cause of a judicial proceeding if the learned trial Magistrate were to arbitrarily and without looking at the evidence straightway pass an order once again discharging the accused. In sum and substance, what was contended was that even though this is an unusual situation, that the interest of justice require that the High Court must take a strict view of what has happened because the petr. has been made to run from pillar to post and has been virtually denied a fair opportunity of establishing his case and that all this has happened in the face of a specific direction from the High Court is to the contrary. It is in this background that the petr. has taken the unusual step of instituting criminal contempt proceedings and that too against a Judicial Officer. As is a requirement under the Contempt of Courts Act, the petr. applied to the learned Advocate General for sanction and the learned Advocate General after examining the facts and the law has accorded the required sanction for the institution of these proceedings. An earlier Bench of this Court considering the matter, issued notice to the respondent. The respondent is represented and has filed his reply.