Sri. Om Prakash vs Sri. Prashanth D''costa

K.N. Keshavanarayana, J.—Though the matter is listed for orders today, having regard to the short point involved, the matter was heard on merits. In this petition filed under Articles 226 & 227 of the Constitution of India r/w Section 482 of Code of Criminal Procedure, petitioner arrayed as accused No. 1 in C.C. No. 1861/03 on the file of Additional JMFC, Puttur, Dakshina Kannada, has sought for quashing the prosecution launched against him in the said case for the offences punishable under Sections 341, 347, 504, 506 & 324 r/w Section 34 of Indian Penal Code.

The respondent filed a private complaint alleging the aforesaid offences against these petitioners and two others, based on which the learned Magistrate took cognizance of the offences and after recording the sworn statement of the complainant and his witnesses, directed registration of the case and also ordered issue of summons. It is an undisputed fact that on an earlier occasion, this petitioner had filed criminal petitions before this Court in Crl.P. Nos. 449/2004 and 870/2004, to quash the private complaint lodged by the respondent on the ground that a prior sanction u/s 197 of Cr.P.C. was necessary and in the absence of such sanction, the Magistrate has no power to take cognizance of the offence. After hearing both the sides, the said petitions came to be dismissed by the order dated 04.01.2008. Thereafter, during the pendency of the proceedings, respondent-complainant filed an application u/s 320(2) r/w Section 257 of Code of Criminal Procedure before the Trial Court seeking permission of the Court to compound the offences alleged against accused Nos. 2 and 3. The learned Magistrate allowed the said application and closed the prosecution as against accused Nos. 2 and 3 as compounded. It is thereafter, the petitioner has presented this petition on the ground that since the main allegations made in the complaint are against accused Nos. 2 and 3 and it was at the instance of accused Nos. 2 and 3, the alleged incident said to have occurred, the case against this petitioner also ought to have been closed as compounded; that there has been inordinate delay in completion of the trial of the case, since the matter is pending from the year 2003 from last over 10 years. When the matter was listed before this Court on 26.04.2013, this Court while ordering issue of notice, granted stay as prayed for. On appearance, the respondents have filed application for vacating stay.

Having heard the learned counsel appearing on both the sides and on perusal of the materials on record, I am of the considered opinion that there are no justifiable grounds to entertain this petition.

As noticed supra, the case against accused Nos. 2 & 3 was closed as compounded at the instance of respondent-complainant. Reading of the allegations made in the complaint, a copy of which is produced along with this petition, prima facie indicates that serious allegations have been made against this petitioner to the effect that this petitioner, while working as PSI of Uppinangadi Police Station, abused the complainant and his friend in filthy language and unparliamentary words and also threatened them with dire consequence of their lives. Of course several serious allegations have been made against accused 2 and 3 also. Merely because the complainant decided to compound the offences against accused 2 and 3, petitioner cannot insist that the case against him also must be compounded. The complainant, at his choice could continue the prosecution against only some of the accused and compound the offence against others. Therefore, the petitioner as a matter of right cannot seek a direction to the complainant to compound the offence against him also. Therefore, there is no substance in the said contention urged.

With regard to the delay, it is necessary to note that earlier criminal petitions were filed in the year 2004 and disposed of on 4.01.2008. It is undisputed fact that during the pendency of those criminal petitions, there was an interim order staying the proceedings. Tims, for more than three years, the proceedings in the case had been stayed by this Court. Therefore, it is not open to the complainant to contend that there has been delay in disposal of the matter. However, delay in conclusion of the trial cannot by itself be a ground to quash the prosecution. It is contended by the learned counsel for the petitioner that on the same set of facts, another complaint was filed by one Ravindra Prabhu in respect of which, case in C.C. No. 1860/2013 is pending before the very same court and therefore, in the light of the said prosecution, continuation of the prosecution in the present case in C.C. No. 1861/2013 would amount to double jeopardy, barred u/s 300 of Cr.P.C., as such, the prosecution is liable to be quashed against him. As could be seen from the above, no such ground in this regard has been raised in the petition. However, learned counsel for the petitioner submits that, to the statement of objections filed by the respondent, the petitioner has filed a rejoinder, wherein he has raised this ground. Having regard to the fact that, no such ground is urged in the petition, contention urged in that regard in the rejoinder cannot be considered. However, it is open to the petitioner to raise this aspect of the matter before the trial court and seek appropriate relief at the hands of the trial court. If such application is filed, the trial court shall consider the same and pass appropriate orders. Under these circumstances, there is no need to refer to the decisions cited with regard to the application of Section 300 of Cr.P.C. In this view of the matter, I see no substance in this petition. Accordingly the petition is dismissed. However, the trial court is directed to dispose of the case as expeditiously as possible.