The said
order is not challenged by the accused and, therefore, the contentions
raised by the accused that they were not heard and that the
impugned order was passed mechanically, must be rejected.
In
support of his submissions, counsel relied on the judgment of this
Court in State of Maharashtra v. Ramdas Shrinivas Nayak &
Anr.1, wherein this Court has held that “the principle is well settled
that statements of fact as to what transpired at the hearing recorded
in the judgment of the court are conclusive of the facts so stated and
no one can contradict such statements by affidavit or other evidence”.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.5844 OF 2014
Siva Vallabhaneni
Vs.
State of Karnataka & Anr.
Dated;SEPTEMBER 03, 2014.
One Nithya Dharmananda @ Lenin filed F.I.R. No.112 of 2010 on
2
4/3/2010 at P.S. Central Crime Branch, Tamil Nadu for the offences
punishable under Sections 295-A, 376, 377, 420, 506(1) r/w. Section
120-B of the Indian Penal Code (“the IPC”) against Nithyananda
Swamy @ Tiru Rajashekaran (“A1”), Gopal Reddy Sheelum @ Nithya
Bhaktananda (“A2”), Siva Vallabhaneni @ Nithya Sachitananda
(“A3”), Dhanashekaran @ Nithya Sadananda (“A4”), Ragini @ Ma
Nithya Sachitananda w/o. Siva Sachidananda (“A5”) and others. As
the incident had occurred in Karnataka, the case was transferred to
Karnataka for investigation.
On 26/11/2010, Final Report in C.C.
No.204 of 2010 was filed by Bidai Police under Sections 376, 377,
420, 417, 201, 114, r/w. Sections 415, 506(1) and 120-B of the IPC.
On 4/12/2010, the Chief Judicial Magistrate, Ramanagara District
took cognizance of the offences against the petitioners.
2.
Four criminal petitions came to be filed in the High Court of
Karnataka by the petitioners. Criminal Petition No.957 of 2011 was
filed by A3 praying that order dated 4/12/2010 passed in C.C.
No.204 of 2010 taking cognizance of offences under Sections 376,
377, 420, 114, 201, 417 r/w. Sections 415, 506(1) and 120-B of the
IPC be set aside and further proceedings pursuant thereto be
quashed.
Criminal Petition No.4582 of 2012 was filed by A1 for
3
setting aside order dated 18/6/2012 passed in C.C. No.204 of 2010
on the application filed by the prosecution under Section 53-A r/w.
Section 173(8) of the Code of Criminal Procedure (“Cr.P.C.”) directing
A1 to give his blood for test, his voice sample for analysis and subject
himself to medical examination. Criminal Petition No.4090 of 2011
was filed by A4 and A5 and Criminal Petition No.234 of 2011 was filed
by A2 praying for quashing the charge-sheet filed in C.C. No.204 of
2010 and for setting aside order dated 4/12/2010 taking cognizance
of offences under Sections 376, 377, 420, 201, 417 r/w. Sections 419,
506(1) and 120-B of the IPC.
3.
All the above petitions were disposed of by the Karnataka High
Court by the impugned order. Being aggrieved by the said order, the
accused have filed the present special leave petitions.
As these
special leave petitions challenge the same order and arise out of the
same case, we are disposing them of by this common order.
4.
Dealing with the aforesaid criminal petitions filed by the
petitioners, the High Court opined that if at all the statements of the
charge-sheet witnesses and other documents are not supporting the
charges framed against the accused-petitioners, they are at liberty to
4
take advantage of the same for seeking their discharge in the pending
criminal proceedings.
5.
While dismissing the criminal petitions, the High Court directed
A1 to cooperate with the investigating officer to get his blood samples
drawn from qualified doctors and also to take his voice samples for
the purpose of investigation. He was further directed to voluntarily
appear before the qualified doctors identified by the investigating
officer to subject himself to medical test on the day and date fixed by
the said qualified doctors to conduct such test on him as the doctors
deem fit pursuant to the order dated 18/6/2012 passed by the trial
judge in C.C. No.204 of 2010. The High Court made it clear that if A1
fails to comply with the said order, the investigating officer shall be at
liberty to take A1 into custody for the limited purpose of taking his
blood samples, voice test and subjecting him to medical test and shall
release him after completion of the tests.
6.
The High Court also dismissed the application filed by one Smt.
Arathi Rao, a complainant for impleading her in each of the four
criminal
petitions,
observing
that
the
presence
of impleading
applicant is not necessary at this stage and granted her liberty to
5
make an application before the learned Magistrate in C.C. No.204 of
2010. Finally, the High Court observed:
“While dismissing the aforesaid criminal petitions and
impleading application filed by the alleged complainant
seeking permission to come on record, this Court observe that
the proceeding in C.C. No.204/2010 is sufficiently old.
Though the charge sheet is filed in the year 2010 even after
four years, there is no progress and it is still at the stage of
prosecution seeking further investigation in to this June,
2012 matter. Hence, this Court direct the Court of CJM,
Ramanagara to proceed with the matter without further
delay. This Court would fix the next date of hearing in C.C.
No. 204/2010 on 28.7.2014 in the presence of counsel
appearing for accused 1 to 5 therein. The Registry shall
communicate a copy of this order to learned CJM, Ramnagar
to take up C.C. No. 204/2010 for hearing on 28.7.2014.”
7.
We have heard learned counsel for the petitioners and learned
counsel for the respondents.
We have been taken through the
relevant documents by the learned counsel.
8.
The first and perhaps the main submission of learned counsel
for the petitioners is that the High Court did not give the petitioners a
fair opportunity of hearing which has resulted in miscarriage of
justice. Mr. Mohan Parasaran, learned senior counsel submitted that
the matter was listed by the High Court on a motion made by the
6
respondents without serving a copy or notice on the petitioners; that
the High Court rejected the prayer for adjournment made by the
petitioners’ advocate on record; that the High Court did not even pass
over the matter and the impugned order came to be passed
mechanically behind the back of the petitioners and their counsel
and, therefore, it is necessary to remand the matter to the High Court
for fresh hearing.
This submission was adopted by all the learned
counsel appearing for the petitioners.
9.
This submission was strenuously opposed by Mr. M.N. Rao,
learned senior counsel appearing for the State. He submitted that the
petitions deserve to be dismissed. Affidavit in reply is filed by Deputy
Superintendent of Police, Special Enquiries Squad, CID, to which our
attention is drawn by Mr. Rao. In the affidavit, it is stated that the
above allegations are totally malicious; that the High Court had time
and again given full audience to the senior advocates and advocates
on record of the petitioners and informed the petitioners that the
matter is stuck at admission stage for last so many years and,
therefore, it intends to decide the petitions.
In the affidavit, the
deponent has set out the manner in which according to him the
petitioners have delayed the disposal of the matters. It is pointed out
7
that even appointment of public prosecutor was challenged and stay
order was obtained which was operating for a considerable time.
10. It is pointed out that the accused filed Criminal Petition
Nos.4547 of 2014 and 4560 of 2014 before the High Court and
voluntarily gave an undertaking that they would appear before the
Chief Judicial Magistrate, Ramanagara.
On the basis of this
voluntary undertaking, the High Court by its order dated 1/8/2014
set aside the order issuing non-bailable warrants against the accused
and A1 was directed to appear before the Superintendent, Victoria
Hospital, Bangalore on 6/8/2014. All the accused were directed to
appear before the Chief Judicial Magistrate on 18/8/2014. The said
order is not challenged by the accused and, therefore, the contentions
raised by the accused that they were not heard and that the
impugned order was passed mechanically, must be rejected.
In
support of his submissions, counsel relied on the judgment of this
Court in State of Maharashtra v. Ramdas Shrinivas Nayak &
Anr.1, wherein this Court has held that “the principle is well settled
that statements of fact as to what transpired at the hearing recorded
in the judgment of the court are conclusive of the facts so stated and
no one can contradict such statements by affidavit or other evidence”.
1
(1982) 2 SCC 463
8
11. After hearing the rival contentions, we informed the learned
counsel that we are not inclined to remit the matter to the High
Court. What is staring at us is the atrocious delay in disposal of the
criminal petitions. The complaint is dated 4/3/2010. Cognizance of
the offences has been taken on 4/12/2010. Petitions came to be filed
by the petitioners in 2011/2012. We are in 2014. It is distressing to
note that the petitions were kept pending at admission stage for
almost over three years and could be disposed of only on 16/7/2014.
In the circumstances, we called upon learned counsel to address us
on all points so that their grievance that they were not heard is
redressed.
entire day.
prosecution
We accordingly heard learned counsel at length for the
It is urged by counsel for the petitioners that the
has
not
collected
any
evidence
to
establish
the
involvement of the petitioners. This is a case of no evidence. The
petitioners have been implicated with ulterior motive.
12. It is urged by learned counsel for A1 that application dated
18/6/2012 filed by the prosecution under Section 53-A read with
Section 173(8) of the Cr.P.C. was not tenable inasmuch as the
accused was earlier medically examined. It is submitted that Section
9
53-A of the Cr.P.C. speaks of examination of person accused of rape,
by medical practitioner. It must be done immediately after the arrest.
Direction issued to A1 to submit himself to medical examination is
illegal.
We feel that this submission is raised to avoid medical
examination. It is the prime duty of the accused to cooperate with the
investigating agency.
It is pointed out by the State counsel that
Section 53-A does not put fetters on the investigating agency to get
the accused examined at a later stage. It is submitted that earlier
examination was conducted to find out whether there are any marks
of violence on the accused. We do not want to comment on this. If the
accused are entitled to get any benefit because of the delayed medical
examination, they can surely urge that point in the trial. But they
must submit themselves to medical examination. This submission is,
therefore, rejected.
13. It is pointed out by learned counsel for A2 that on 14/1/2011,
the prosecution made an application before the Chief Judicial
Magistrate,
Ramanagara
District
stating
that
on
27/11/2010,
charge-sheet was submitted against the accused under Sections 376,
377, 420, 114, 212, 201, 417 r/w. Sections 415, 506(1) and 120-B of
the IPC and cognizance was taken under Section 190 of the Cr.P.C. It
10
was further stated in the application that cognizance of offence
punishable under Section 212 of the IPC was not taken against A2
due to oversight. It was further stated in the application that after
going through the order-sheet, A2 has filed criminal petition before
the High Court to quash the charge-sheet filed against him and,
therefore, cognizance of offence punishable under Section 212 of the
IPC be taken against A2. Counsel pointed out that it was improper
for the investigating agency to file such application during the
pendency of the criminal petition. Moreover, on this application, on
17/1/2011, learned Magistrate passed order of taking cognizance
without giving any reasons. Counsel submitted that it is well settled
that at the time of taking cognizance, learned Magistrate must apply
his mind to the facts before him. Learned Magistrate’s order taking
cognizance shows non-application of mind. Counsel urged that there
is absolutely no material on record to show that A2 harboured any
offender. In this connection, he drew our attention to Section 52-A of
the IPC which defines the term ‘harbour’ as “supplying a person with
shelter, food, drink, money, clothes, arms, ammunition or means or
conveyance or the assisting a person by any means, whether of the
same kind as those enumerated in Section 52-A or not, to evade
apprehension”. Counsel submitted that there is nothing on record to
11
establish that A2 has indulged in any of the above activities. In reply,
Mr. Rao, learned senior counsel for the State submitted that in view of
the fact that the charge-sheet is already filed, if A2 is aggrieved by the
charge under Section 212 of the IPC levelled against him, he can file a
discharge application before the concerned court and on this count,
the charge-sheet cannot be quashed.
14. To ascertain the correctness of this submission, we have
carefully perused the material made available to us by both sides.
According to the prosecution, on 27/11/2010, the investigating
agency had included in its charge-sheet offences punishable under
Sections 376, 377, 420, 114, 212, 201, 417 r/w. Section 415, 506(1)
and 120-B of the IPC.
On 4/12/2010, cognizance was taken by
learned Chief Judicial Magistrate, Ramanagara of the said offences
under Section 190 of the Cr.P.C.
However, against A2, cognizance
was not taken of offence under Section 212 of the IPC.
A2 filed
Criminal Petition No.234 of 2011 in the High Court on 10/1/2011 for
quashing order dated 4/12/2010 passed by the Chief Judicial
Magistrate, Ramanagara directing registration of the offences against
A2 inter alia on the above ground. On 14/1/2011, the prosecuting
agency submitted an application in the Court of Chief Judicial
12
Magistrate,
Ramanagara
praying
that
cognizance
of
offence
punishable under Section 212 of the IPC be taken against A2 as A2
has filed a petition in the High Court.
We must reproduce the
relevant portion of the application.
“With reference to the above, it is submitted that on
27-11-2010 charge sheet was submitted before Hon’ble court
against A1- Nithyananda Swamy and 4 others for the
offence punishable U/S 376, 377, 420, 114, 212, 201, 417
r/w 415, 506(1), 120(B) IPC.
The same was taken
cognizance under Section 190 Cr.P.C. by the Hon’ble Court
except Section 212 alleged against A2. It appears that time
of taking cognizance the Section 212 IPC was leftover by
oversight, as it is apparent that no special reasons or
grounds are assigned by the Hon’ble Court in this regard.
After going through the ordersheet the accused person A2-
Nithya Bhakthananda has filed criminal petition before the
Hon’ble High Court to quash the charge sheet filed against
him.
Under above circumstances, it is submitted to take
cognizance of Section 212 IPC against A2- Nithy
Bhakthananda under Section 190(2) Cr.P.C. in the interest of
justice.”
Thus it is the investigating agency, who approached learned
Chief Judicial Magistrate taking a stand for the learned Chief Judicial
Magistrate that Section 212 of the IPC was not included due to
oversight by him.
The matter does not rest here.
On 17/1/2011,
learned Chief Judicial Magistrate passed a cryptic order and took
cognizance against A2 of offence punishable under Section 212 of the
13
IPC. The order reads thus:
“Superintendent of Police, Special Enquiries, CID, Bangalore
has submitted an application to take cognizance of Section
212 of the IPC against A2-Nithya Bhaktananda. Perused the
records. Cognizance taken for Section 212 IPC against
Accused No.2. Called on 27/1/2011.”
15. Thus, cognizance of offence punishable under Section 212 of the
IPC was taken against A2 during the pendency of A2’s criminal
petition in the High Court in which he had raised the point that
despite investigator’s report, cognizance of offence under Section 212
of the IPC was not taken against A2. It was highly improper for the
investigating agency to submit such application when criminal
petition of A2 was pending. Non-inclusion of Section 212 of the IPC
was termed as oversight and this was accepted by learned Chief
Judicial Magistrate, without even elaborating on it in his order.
Elaboration was necessary because earlier, he had not included
Section 212 of the IPC. We are distressed at this.
16. Though we are unhappy about the manner in which application
was made during the pendency of the criminal petition, to satisfy our
conscience we repeatedly asked counsel for the State to show us the
material against A2. We wanted to find out whether Section 212 of
14
the IPC was really not included due to oversight. However, learned
counsel for the State was unable to do so. He took us only to the
summary of charge-sheet dated 27/11/2010.
sentences were read by learned counsel.
Following four
It is not clear whether
reference is to A2, so far as Section 212 of the IPC is concerned.
“The accused No.1 escaped and went out to Solam District in
Himachal Pradesh after he came to know about the case
registered on accused No.2. He hides himself to cover the
actions under the law I.P.C. col. 212, 120(B).”
17. Counsel for the State made a categorical statement that he was
unable to show any other material against A2 to support charges
under Section 212 of the IPC. In the circumstances, we are satisfied
that cognizance of offence punishable under Section 212 of the IPC
was not taken by learned Chief Judicial Magistrate against A2
because there was no material to substantiate it and the theory of
oversight brought in by the investigating agency is an afterthought
and was evolved after A2 filed criminal petition raising the issue.
Subsequently, cognizance of offence under Section 212 of the IPC was
taken to meet the challenge raised in the petition which was
improper. In the circumstances, we will have to quash only charge
under Section 212 of the IPC as against A2. We, however, make it
15
clear that in view of the abovementioned peculiar facts, A2’s case
stands on a different footing from that of the other accused and none
of the other accused can draw any advantage from the observations
made by us hereinabove and from the quashing of charge under
Section 212 of the IPC against A2.
18. Learned counsel for A3 strenuously contended that baseless
charges have been leveled against A3, who is only a volunteer of the
Ashram. There is no cogent evidence supporting the charges framed
against him.
Section
201
Particularly, the charge framed against A3 under
of
the
IPC
that
he
caused
the
‘Non-disclosure
Agreements’ to be destroyed or he gave false information to screen the
offender is baseless as the three charge-sheet witnesses CW-8, CW-9
and CW-10 who deposed against A3, have not stated that A3 had
destroyed the documents. Moreover, no other charge-sheet witnesses
have said anything against A3.
It is urged that in any case,
destruction or otherwise of the said documents has no nexus with the
main offence with which the accused are charged.
19. It is submitted by the counsel for A4 and A5 that A4 and A5 are
merely employed as Personal Secretaries of A1 and they were
16
unnecessarily dragged into the case.
incriminating material against them.
There is absolutely no
The proceedings initiated
against these petitioners must, therefore, be quashed.
20. We have considered the above submissions advanced by the
counsel for the accused that no offence is made out against them, in
its proper perspective. Having given our anxious consideration to this
submission and having perused the material on record, we feel that
this is not a case where the proceedings could be quashed against the
accused except charge under Section 212 of the IPC against A2 which
is done for reasons which we have noted hereinabove.
It is not
possible for us to accept the submission that there is no evidence
against the accused.
21. We notice that impleadment applications are filed by one
Ranjitha Menon, stating that she is being wrongly projected as a
victim. We are not inclined to expand the scope of these petitions.
We, therefore, reject the applications. On her grievance, we are not
expressing any opinion. If law permits, she may take such steps as
she is advised, in the trial court.
17
22. Before parting, we must express our extreme displeasure about
the manner in which the instant proceedings are dealt with by the
accused as well as the prosecution. The complaint was registered in
2010. Charge-sheet is filed in the year 2010. However, there is no
progress in the case.
The prosecution is still required to conduct
further investigation. The accused are obviously not cooperating with
the investigating agency.
A1 must subject himself to medical
examination. Objections were raised to the appointment of the public
prosecutor.
For a considerable period, the appointment of the
prosecutor was stayed. We are informed that now a new prosecutor is
appointed.
We find the approach of the prosecution also to be
lackadaisical. The prosecution must gear up its efforts so that trial
begins.
This case brooks no further delay.
The accused are also
expected to cooperate with the court or else adverse inference may
have to be drawn against them.
We hope and trust that the
prosecution and the accused cooperate with the court so that the trial
is concluded in near future. We make it clear that if any observations
made by us touch the merits of the case, they are not our final
observations as they are made while dealing with the prayer made for
quashing of the proceedings.
If any applications for discharge are
made, the trial court shall deal with them independently and in
18
accordance with law.
23. With these observations, we dismiss Special Leave Petition
No.5844 of 2014 filed by A3, Special Leave Petition No.5897 of 2014
filed by A1 and Special Leave Petition No.5900 of 2014 filed by A4 and
A5. So far as Special Leave Petition No.6001 of 2014 filed by A2 is
concerned, we dispose of the same by quashing only the charge
framed against him for offence punishable under Section 212 of the
IPC.
.........................................J.
(RANJANA PRAKASH DESAI)
.........................................J.
(N.V. RAMANA)
NEW DELHI,
SEPTEMBER 03, 2014.
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