Karnataka High Court
S. H. Taralagatti vs Director General, All India Radio on 17 March, 1993
Equivalent citations: 1995(1)ALT(CRI)328, ILR1994KAR3478
ORDER
Sreenivasa Reddy, J
1. 1n this Petition under Section 482 Cr.P.C. the petitioner has assailed the validity and correctness of the judgment dated 7.4.1988 passed by the Principal Civil Judge, Dharwad in M.No. 48/84 confirming the order dated 21.9.84 passed by the First Additional Munsiff, Dharwad in Misc. Application 10/83.
2. The petitioner is the plaintiff in O.S.No. 198/79, on the file of the Munsiff at Dharwad and the respondents are the defendants therein. The said suit was for a declaration and permanent injunction restraining the defendants from removing the name of the plaintiff from the List of Artists, All India Radio, Dharwad. The said suit was decreed. Aggrieved by the said decree, the defendants have preferred R.A.No.51/83 before the Principal Civil Judge, Dharwad which is pending disposal.
3. The petitioner herein and Sri T.V. Chavan, another Staff Artist filed Mis. Application Nos. 10/83 and 11/83 respectively under Section 195(i)(b) of the Criminal Procedure Code before the trial Court, requesting the Court, to file a complaint against the opponents for having deliberately given false evidence before it; and for creating false and forged documents and using the same in Court Proceedings in O.S. 198/79 and O.S.No.6/79 respectively. The opponents resisted the said application as frivolous and not maintainable.
4. The learned Munsiff rejected the said applications by a common order dated 21.9.84 mainly on the ground that a party to the Court proceedings is not entitled to move the Court to file a complaint against persons committing offences affecting public Justice and that it was the prerogative of the Court. The lower Appellate Court in M.A.48/84 has confirmed the above said order of the learned Munsiff. Hence, this Criminal Petition.
5. Smt. Latha Prasad, learned Counsel appearing for the petitioner, firstly contended that in view of Section 340 Cr.P.C. the Courts below ought not to have held that a private party or a party to the Court proceedings has no right to move the Court, to file a complaint against offences affecting public Justice and as such the impugned order is fiable to be set aside. In my view, the contention of Smt. Latha Prasad is not without force.
6. No doubt, a private party or a party to the Court proceedings cannot straightaway lodge a complaint for offences relating to documents given in evidence during trial. Section 195 Cr.P.C. empowers the Court before which such offences are committed or of some other Court to which that Court is subordinate to lodge the complaint in writing. But, this does not mean that a person who is a party to a proceeding or a private party for that matter cannot make an application requesting the Court before which the alleged offence is committed to lodge complaint against persons alleged to have committed an offence against public Justice or offences relating to documents given in evidence.
7. Section 340(1) Cr.P.C. lays down procedure in cases mentioned in Section 195 Cr.P.C. and it reads thus :
"340. Procedure in cases mentioned in Section 195-(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that is it expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court such Court may, after such preliminary inquiry, if any, as it thinks necessary.-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate."
Therefore, it is clear from the language of Section 340(1) Cr.P.C. that filing of an application before the Court by a party requesting that Court to lodge a complaint in respect of offence related to in clause (b) of Sub-section (1) of Section 195 Cr.P.C. is not absolutely barred.
8. Smt. Latha Prasad, next|y contended that the Court ought to have held a preliminary inquiry on the application filed by the applicant under Section 195(1)(a) Cr.P.C. and recorded a finding to that effect before dismissing the same.
9. Section 195 Cr.P.C. deals with prosecution for contempt of lawful authority of public servants, for offences against public Justice or for offence relating to documents given in evidence. In such cases a written complaint of the public servant or the Court as the case may be is required for taking cognizance. It would be illegal and without jurisdiction if the cognizance is taken contrary to the provisions of this Section. The objects of the law in requiring a complaint from the Court or authority concerned are (i) to protect persons from criminal prosecutions by persons actuated by malice, hatred or illwill; (ii) to insist on there being prosecutions only when the interests of public Justice render it necessary and to prevent prosecutions when public interest cannot be served; (iii) to protect persons from prosecutions on insufficient grounds and to ensure prosecution only when the Court after due consideration is satisfied that there is proper case to put a party on his trial. The Apex Court in PATEL LALJI BHAI SOMABHAI 1971 Crl. L.J. 1437 has pointed out that Section 195 has created the bar against cognizance of private complaints in regard to the offence mentioned in the Section.
10. As the Code now stands Sections 195 and 340 Cr.P.C. are supplementary to each other and they must be read together. Section 195 describes the offences in respect of which a complaint is necessary and Section 340(1) prescribes the procedure under which a complaint is to be made. It is noteworthy that the words in Section 340 that "when upon an application made to it in this behalf or otherwise" have been introduced in this Section. The Section, therefore, contemplates an application being made by a party for institution of proceedings. But it is for the Court to decide whether to take action and initiate the proceedings. In fact, it is open to the Court under this Section to entertain an application at the instance of a stranger to the proceedings from which the application arises. The Section provides that the complaint may be made by a Court either on an application or suo-motu. Therefore, it must be held that the Courts below have committed a serious error in holding that the application filed by the petitioner under Section 195(1)(b) for initiation of action against the parties concerned was not maintainable.
11. But, the above finding as to the maintainability of an application being made by a person who is a party to the Court proceedings or even by a stranger for initiation of proceedings under Section 195 does not help the petitioner in the instant case. I have carefully perused the averments in Misc. Application No. 10/83 filed under Section 195(1)(b) Cr.P.C. by the petitioner herein. The allegations contained therein, in my view, are vague unclear and omnibus. Except stating that opponents 1, 2, 3, 5 and 6 therein are guilty of creating false records and forged documents, nothing else has been stated to persuade the Court to initiate action against them for the alleged offences. During trial also, the alleged acts of fabrication of records and forgery were not brought on record. The opponents in their counter have stoutly denied the alleged fabrication of records, forgery and perjury etc. The trial Court while answering issue No. 1 in O.S. 190/81 has held that the plaintiff/petitioner has failed to prove that any of the opponents had any grudge or ill-will against the plaintiff. Though the trial Court has decreed O.S. 198/79, nowhere it has been stated that the defendants have either forged, fabricated the documents or that they have given false evidence in the case. In the absence of any finding to that effect by the trial Court in the said suit, the Court below thought fit that there was no material to proceed against the respondents under Section 195(1)(b) of Cr.P.C. Further more, as held in HARNAM SINGH AND ANR. v. MT. ATRI AND ORS. AIR 1925 Lahore 323, when the question as to whether the document in question is a forgery, has finally to be decided by the Court in which the appeal from the proceeding is pending, it is not proper to take proceedings under Section 476 Cr.P.C. (old Code). As already stated above, the trial Court has not even recorded a finding in the said original suit to the effect that the defendants have forged the documents or that they have given false evidence during the trial. The appeal is also pending.
12. The trial Court has not merely rejected the petitioner's application on the ground of maintainability but also on merits. In my view, the impugned order does not call for any interference.
13. In the result, for the foregoing reasons, the Petition fails and is dismissed.