MUZAFFAR DOWLA S/O MM DOWLA v. STATE OF KARNATAKA AND ANR

This petition is filed under Section 482 of Cr.P.C., by petitioner herein seeking to quash the FRI and complaint in Cr.No.113/2021 of Ashok Nagar Police Station for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000 and Sections. 34, 418, 420, 465, 471, 415, 463, 464 of IPC and KPSC Examination Malpractice Act.

2. Heard the learned counsel appearing for the petitioner, the learned High Court Government Pleader appearing for the State and the learned counsel for the respondent No2.

3. The factual matrix of the case is that this petitioner along with other 12 accused were indulged in malpractice in the selection conducted by the KPSC for the post of First Grade Revenue Inspector and the specific allegation is that this petitioners along with other accused persons answer sheets are similar and OMR sheets also disclose the same. Based on the complaint, FIR has been registered in a Cr.No.113/2021 of Ashoknagar police station against this petitioner along with the other accused for the offences punishable under Sections 66 and 67 of Information Technology Act, 2000 and Sections. 34, 418, 420, 465, 471, 415, 463, 464 of IPC and KPSC Examination Malpractice Act. Hence, the petitioner is before this Court seeking for quashing of FIR.

4. The main contention of the learned counsel appearing for the petitioner before this Court is that in connection with this malpractice, a case has been registered, investigation has been completed and charge sheet also filed arraying 20 accused persons. The counsel also brought to notice of this Court that during the course of the investigation, no materials are found against this petitioner and the same has been narrated in the complaint and inspite of the same, an enquiry was ordered and in the said enquiry, there was a material that the OMR sheets of 13 accused persons including this petitioner are similar except minute difference. The learned counsel would submit that this petitioner had already approached this Court in W.P.No.201236/2021 wherein this Court granted stay in respect of the enquiry report and directed the respondent No.2-KPSC to produce the OMR sheets before the Court and the same has not been produced. The counsel also would submit that when the charge sheet has already been filed if any materials are found, ought to have invoked Section 173(8) of Cr.P.C. for filing additional charge sheet and the same is not been invoked and instead of that a separate FIR has been registered against this petitioner along with the other accused persons. Hence, it requires interference of this Court or otherwise it amounts to an abuse of process which leads to miscarriage of justice.

5. Per contra, the learned High Court Government Pleader appearing for the State would submit that it is not in dispute that during the course of the investigation prima facie not found any material against this petitioner and the same has been stated in the complaint dated 06.02.2021 and also in the very same complaint it is mentioned that in order to find out the truth, an enquiry was conducted in terms of the order passed by the Commission vide order dated 03.07.2020 and in the enquiry, found similarity in OMR sheets of this petitioner as well as other 12 accused persons and report also submitted. Based on the said report, case was registered and investigated the matter.

6. The learned counsel for the respondent No.2 also submit that as directed by this Court, he is going to place the OMR sheet of this petitioner and when the complaint discloses prima facie case of manipulation of the documents and malpractice, KPSC also withheld the appointment of this petitioner and other accused persons who indulged in the malpractice. If it is investigated and probed into the matter, this petitioner is not going to loose anything. Whether additional charge sheet has to be filed invoking Section 173(8) of Cr.P.C, the same is left to the IO to investigate the matter and file a separate charge sheet in this case. Hence, it is not a fit case to exercise the discretion.

7. Having heard the respective counsel and also on perusal of the material on record it discloses that while exercising the powers under Section 482 of Cr.P.C for quashing of FIR, Court has to exercise its powers sparingly that too when the complaint does not discloses any committing of the cognizable offences. Under such circumstances, the Court can only exercise the discretion or otherwise not to exercise the said powers. This Court has to look into the contents of the complaint wherein no doubt, specifically mentioned that in the letter dated 05.06.2020, they found the material in respect of 20 persons and against 13 persons, there is no materials found. However, in order to find out the truth whether this petitioner along with other accused persons have indulged in malpractice, an enquiry was conducted and during the course of the enquiry, they found similarity in the OMR sheets and only minute differences are found. In this regard, respondent No.2 also brought to the notice of this Court to the questionnaire put to the present petitioner wherein also he accepts the similarity but claims that there is some differences. When such being the factual aspects and when the serious allegations of malpractice indulged against the petitioner and the same has to be find out by the IO and IO has to probe the same when the cognizable offence invoked against the petitioner herein.

8. The Apex Court in the case of DINESHBHAI CHANDUBHAI PATEL vs STATE OF GUJARAT AND OTHERS reported in (2018)3 SCC 104 has categorically held that when the complaint prima facie discloses committing of cognizable offence, it is the duty of the IO to probe into the matter and the High Court should not venture to interfere in probing unearth the crime. When such principle is laid down by the Apex Court and mere registration of the case will not take away the case of the petitioner and this Court cannot exercise its powers under Section 482 of Cr.P.C curbing the unearth the crime as held by the Apex Court and it is the domain of the IO to investigate the matter and file a final report.

9. The other contention is that when already the charge sheet has filed and there is no material found, the prosecution can invoke Section 173(8) of Cr.P.C., and it is left to the IO whether he can invoke Section 173(8) to investigate the matter and file a final report considering the allegations made in the complaint and also the material on record. Hence, it is not a fit case to exercise the powers under Section 482 of Cr.P.C. to quash the FIR and the same has to be exercised sparingly and hence, I do not find any force in the contention of the learned counsel for the petitioner to quash the FIR.

10. In view of the discussions made above, I pass the following: ORDER The petition is dismissed. Sd/- JUDGE