Karnataka High Court
C.N. Seetharam vs State Of Karnataka on 6 July, 1988
Equivalent citations: ILR1988KAR2053, 1988(2)KARLJ310
ORDER
1. The petitioner C. N. Seetharam is accused-1 in Cr. No. 1/83 registered in Harihar Police Station for the alleged commission of the offences of forgery of a document and using it as genuine document punishable under sections 465 and 471 r/w 34 IPC. Cr.P. 989/86 has been filed under S. 482 Cr.P.C. for quashing the proceedings including the FIR and the charge sheet, on the file of the J.M.F.C., Harihar, and the writ petition No. 19555/86 has been filed for quashing the sanction accorded by the Government for prosecution (Annexure-A) on the ground that the sanction has been accorded without applying the mind.
2. Few salient facts leading to these petitions as averred and as can be gathered from the materials placed in the two petitions are as follows :
On the application in Form No. 7 made by one Ningappa for grant of occupancy right in respect of S. No. 12/A of Nandigavi village, a case bearing No. LRM.TC. 598/76-77 was registered in the Land Tribunal, Harihar. It came to be disposed of by the order dated 30-3-1979 granting occupancy rights in favour of Ningappa and another Sapperahatti Kotrappa. The landlord filed writ petition No. 21253/80 questioning the correctness of the occupancy right so granted. Among other things, it was contended that on 30-3-1979, he was not at all present, he had not given any statement and in collusion with the officials, the Tribunal had passed the order. Since the statements were not written in the hand-writing of the Chairman, the order passed by the Land Tribunal was quashed and the matter was remitted back to the Land Tribunal for enquiry afresh. The writ appeal WA. No. 1503/81 filed by the alleged tenants also came to be dismissed on 30-9-1981. Consequently, when the matter went before the Tribunal, within three days of the receipt of the records, it was disposed of by the order dated 21-10-1981 rejecting the application filed for grant of occupancy right. When the tenants filed writ petition in WP. No. 27862/81 questioning the correctness of the said order of rejection of the application, on the joint memo filed, the order passed by the Tribunal was quashed and the matter was remitted back to the Tribunal for disposal afresh. In the meanwhile, Kuchela Reddy, who claims to be an adopted son of the original landlord Akkera Thimmappa, complained to the D.I.G., C.O.D., Bangalore-1, alleging tampering of the records including the application Form No. 7 originally filed before the Tribunal in case No. LRM. TC. 598/76-77. Among other things, he alleged in the complaint made to the DIG, that Sapperhatti Kotrappa never filed declaration and his name was subsequently entered in the declaration form at the instance of one A. Govinda Reddy, the then member Tribunal, and the application was disposed of an 30-3-1979 granting occupancy right in favour of Ningappa and Sapperhatti Kotrappa, the beneficiary being A. Govinda Reddy. The complaint was referred to the Special Deputy Commissioner, Chitradurga, who after going into the records sent a report to the Revenue Commissioner and, as directed by the Revenue Commissioner, by D.O. letter dated 1-1-1983, the Special Deputy Commissioner requested the Superintendent of Police, Chitradurga, to register a case. Accordingly, when the case in Cr. No. 1/83 was registered in the police station at Harihar and FIR was sent to the court, the petitioner filed the present criminal petition No. 989/86. The petition coming before the court on 28-10-1986, pending admission, all further proceedings in Cr. No. 1/83 were stayed. On completion of the investigation, the Government also having accorded sanction for prosecution, as per Annexure-A in the writ petition No. 19555/86, the petitioner has filed the writ petition for quashing the sanction for prosecution so accorded on the ground that the sanction has been accorded without applying the mind.
3. In substance, the allegations made are : The petitioner who was selected as Class-I junior Grade Officer by the Karnataka Public Service Commission was posted as Special Assistant Commissioner, Land Reforms, to Discharge the duties as Chairman of the Land Tribunals, Devanagere, Harihar and Hosadurga, with the headquarters at Devanagere. While so working as Chairman of the Land Tribunal, it is alleged, in collusion with the Secretary N. Lingaiah, the case worker H. Veeranna and the member of the Tribunal A. Govinda Reddy, in the application Form No. 7 filed by one Sri Ningappa claiming the occupancy rights in respect of S. No. 12/1 of Nandigavi village, at the instance of A. Govinda Reddy, got inserted the name of one Sapperhatti Kotrappa along with Ningappa claiming occupancy right in respect of two more survey numbers and in order to support the claim of the said Sapperhatti Kotrappa, not only pahanis for the year 1966-67 to 1977-78 were got tampered with, but although the landlord Akkera Thimmappa was neither served with notice nor he had attended the Tribunal, he was shown as having signed on the statement and the order sheet on 30-3-1979 and an order was made granting occupancy right in their (Ningappa and Sapperhatti Kotrappa) favour.
4. The contention of Mr. Shivaraj Patil, learned counsel for the petitioner, is : Apart from the fact there is neither allegation nor slightest indication in the materials collected about the complicity of the petitioner in forging the documents or he using the same knowing them to be so forged, the allegations in the complaint as also in the report submitted to the Government for according sanction go a long way to show that documents produced in the judicial proceedings were allegedly forged and used as evidence in support of the order passed granting occupancy right, therefore, the proceedings before the Tribunal being judicial proceedings, as provided under S. 124 of the Land Reforms Act, there was not only bar against the court taking cognizance of the offence as provided under clause (b) of sub-section (1) of S. 195 Cr.P.C., except on the complaint in writing by the Tribunal or some other court to which it was subordinate, but this aspect was never present before the Government while according sanction and, therefore, it was neither proper for the police to register a case or to make any investigation nor any useful purpose would be served by proceeding with the case in the case in the court on the report of the police, except resulting in unnecessary anxiety and harassment to the petitioner. Therefore, the sanction for prosecution and the investigation as also the report filed by the police after investigation deserve to be quashed.
5. Mr. Koti, learned High Court Government Pleader appearing for the State, on the other hand, argued that the Tribunal is not a court within the meaning of the expression as defined in sub-section (3) of S. 195 Cr.P.C. inasmuch as it has not been so declared under the Land Reforms Act; as such the Tribunal being not a court, the offences punishable under sections 465 & 471 being cognizable, it was well within the statutory powers of the police to register a case and take up investigation. In support of his contention he has also relied upon several decisions.
6. In view of the above contentions, the first and foremost question that required to be considered is : Whether the Land Tribunal constituted under the Karnataka Land Reforms Act is a court ? Sub-section (3) of Section 195 of the Code of Criminal Procedure Provides : the term court, as used in clause (b) of sub-section (1) of S. 195 Cr.P.C., means a Civil, Revenue or Criminal Court, and includes tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for the purposes of this section. Mr. Koti contended that since under the provisions of the Karnataka Land Reforms Act the tribunal has not been declared to be a court for the purpose of this section, there was no bar for the police registering the case and Section 195(1)(b) is no bar for the court taking cognizance of the offences on the report made by the police after investigation. If the tribunal was so declared to be a court under the Land Reforms Act, there would have been no difficulty in deciding the question now posed. Since it is not so declared and the definition of the expression 'court' is inclusive and not a exhaustive, the tribunals having not been specifically excluded and as provided under S. 124 of the Karnataka Land Reforms Act the proceedings before the tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193, 219 & 228 IPC, it becomes difficult to straightway accept these contentions of Mr. Koti, and it appears it is necessary to consider the relevant provisions in so far as the enquiry before the tribunal is concerned, on applications made to the tribunal for grant of occupancy right under S. 48-A of the Act. As provided therein, every person entitled to be registered as an occupant under S. 45 has to make application to the tribunal in this behalf within the prescribed period; and on receipt of the application the tribunal is required to publish notice in the village in which the land is situate calling upon the landlord and all other persons having interest in the land to appear before it on the date specified in the notice. The tribunal has also to issue individual notice in the prescribed form to the persons mentioned in the application and also to such others as may appear to be interested in the land and where no objection is filed, the tribunal, on making such verification as it considers necessary, by order, either grand or reject the application. But, where objection is filed disputing the validity of the applicant's claim or setting up the rival claim, the tribunal shall after enquiry determine by the order the person entitled to be registered as occupant and pass the orders accordingly, S. 115 of the Act makes provision regarding the procedure in enquiries, As provided under sub-section (2) of S. 115 of the Act, for the purpose of an enquiry or proceedings under the Act, the tribunal, Deputy Commissioner, or other Officer of the Revenue Department, may exercise all or any of the powers under the Karnataka Land Revenue Act and shall follow such procedure as may be prescribed. Sub-section (3) of S. 115 also provides that in every enquiry, where parties are heard before orders are passed, the orders shall be pronounced in the open court after notice to the parties. Rule 17 of the Karnataka Land Reforms Rules, dealing with the procedure to be followed by the tribunal, provides -
"17(1) Procedure to be followed by the Tribunal. - The Tribunal shall in respect of applications made to it follow the same procedure as specified for a summary enquiry under section 34 of the Karnataka Land Revenue Act, 1964 subject to the condition that the records of the proceedings shall be maintained in a language understood by all its members.
(2) Order sheet shall be maintained by the Chairman in respect of each case heard by the Tribunal, nothing in the day-to-day proceedings of the Tribunal relating to the conduct of the case.
(3) When a meeting is adjourned, the date, time and place of hearing of adjourned meeting shall be made known to the parties present and their signature obtained on the order sheet.
(4) The progress in the enquiry of each case shall be noted by the Chairman immediately after hearing or the holding of spot inspection by the Tribunal.
(5) The opposite party shall be allowed to cross-examine the witness and if it does not wish to so cross-examine a note shall be made accordingly. A brief summary of the evidence given by each witness shall be recorded by the Chairman.
(6) If there are more applications than one for registration of occupancy rights by different persons in respect of the same land, those cases shall be clubbed together and a common order passed.
(7) Prayer on an interlocutory application has to be considered by the Tribunal strictly in relation to the reliefs sought for.
(8) The order shall be signed, in addition to the Chairman, by the other members of the Tribunal who heard the case.
(9) All orders shall be speaking orders, namely, the points for decision the decisions themselves and the reasons for the decisions shall be mentioned. The orders shall be pronounced in the open court.
(10) No member of the Tribunal shall participate in the deliberations or decision of a case in which he is personally interested."
It will thus be seen that not only as provided under S. 34 of the Karnataka Land Revenue Act the summary of the evidence and minutes of the proceedings containing the material averment made by the parties interested, the decision and the reasons for the same, by the officer conducting inquiry in Kannada or in English or in any other language of the taluk, etc. and as provided under clause (5) of Rule 17 of the Karnataka Land Reforms Rules, 1974, a brief summary of the evidence given by each of the witnesses has to be recorded by the Chairman and the opposite party has the right of cross-examining the witness, but the orders passed by the Tribunal are required to be speaking orders with points arising for decision, the decisions thereon with reasons and the orders are to be pronounced in the open court, therefore, there is no doubt all the attributes of the court are present. The 'court' as defined in S. 3 of the Evidence Act includes all Judges, Magistrates and all persons, except arbitrators, legally authorised to take evidence. Since as stated earlier the expression 'court' as defined in sub-section (3) of S. 195 Cr.P.C. is also inclusive of the tribunal, not exclusive, in spite of the fact that under the Land Reforms Act the tribunal has not so been declared as court, it having all the attributes of a court, is a court. The view of the law that I have taken on examination of the relevant provisions under the Karnataka Land Reforms Act also finds support from the decision in the case of Beni Prasad v. State of U.P. 1977 Cri LJ 1632 (All), where considering somewhat similar provisions under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, the Assistant Collector was required to record the evidence, it was held the Assistant Collector making a judicial determination was a court. Just as civil courts, under S. 48-C of the Karnataka Land Reforms Act, the tribunal is clothed with powers if granting equitable relief like issue of temporary injunction, appointment of receive, in the proceedings coming before the tribunal. Therefore, the Land Tribunal although not so declared as court under the Act, the Land Tribunal has all the attributes of the court like recording of evidence on oath, deciding the issues arising between the parties. That being so, the Land Tribunal constituted under the Land Reforms Act is a court. Hence, there was bar against the court taking cognizance of such offences committed during the enquiry before the Tribunal, except on the complaint of the tribunal or authority to which the tribunal was subordinate.
7. Mr. Koti, however, submitted that the provisions of S. 482 Cr.P.C. cannot be invoked to prevent the investigation by the police and in support of that contention he also relied upon various decisions. It is not necessary to refer to all those decisions. Although ordinarily the High Court will be slow in interfering with the investigation by the police, but it cannot be said that in no circumstance the High Court cannot so exercise its power under S. 482 Cr.P.C. Of course, where; within the limits of the exercise of the statutory power, the police in cognizable offence, take up investigation under S. 157 Cr.P.C., the High Court will refrain from interfering in the course of investigation. There are exceptions to this broad principle of law as laid in various decisions. For instance where the facts in the FIR themselves do not constitute any cognizable or non-cognizable offence and if the police proceed to register a case and take up investigation, the High Court will be within its powers to interfere with such investigation and quash the FIR either in exercise of the powers of writ jurisdiction or inherent powers conferred under S. 482 Cr.P.C. to prevent abuse of the process of court or otherwise to secure the ends of justice. In the case of R. P. Kapur v. State of Punjab where the Magistrate, before whom a report had been filed under S. 173 Cr.P.C., had not yet applied his mind and taken cognizance on the report submitted by the police, as in the case on hand, considering this aspect of quashing the proceedings under the old provision of Section 561-A Cr.P.C., their Lordships observed. (Para 6) -
"It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at the interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not."
Considering this aspect of the matter in the case of State of W.B. v. Swapan Kumar , their Lordships have observed as follows (Paras 20, 21 and 22) :-
"An investigation can be quashed if no cognizable offence is disclosed by the FIR. It is surely not within the province of the police to investigate into a Report (FIR) which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases .... The condition precedent to the commencement of investigation under S. 157 of the Code is that FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police had an unfettered discretion to commence investigation under S. 157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, disclose the commission of such offence. If that condition is satisfied, the investigation must go on. The court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the Court would be justified in quashing the investigation on the basis of the information as laid or received. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code."
Moreover, the question of interference with the investigation as such does not arise. Investigation having already been completed, report has been sent to the court. Here, the prayer of the petitioner is for quashing the proceedings including the First Information Report and the charge sheet, on the file of the J.M.F.C., Harihar.
8. Here in the case on hand, as noticed earlier, these two offences although ordinarily cognizable by the police having allegedly committed in relation to judicial proceedings, and in the course of judicial proceedings by forging documents and using the documents so forged as genuine to support the order passed by the tribunal, there being a bar against the court taking cognizance of such offences except on the complaint of the tribunal or the court or the authority superior to the tribunal, the police investigation was not only a futile exercise, but no useful purpose would be served by allowing to remain the FIR or the report submitted by the police after investigation before the court; because there is bar against the court taking cognizance of such offences. Therefore, in order to prevent abuse of the process of the court, it appears it is well within the powers of the High Court, in exercise of the powers under S. 482 Cr.P.C. to quash the same.
9. It is also worth mentioning here, a reading of the order according sanction as per Annexure-A in the writ petition showed that the Government while according sanction did not apply its mind for consideration of these questions which prima facie would have attracted the notice of the Government on the facts stated in the report made to the Government for according sanction. Because of this failure of the Government in applying its mind before according sanction, the sanction accorded being opposed to the principles of natural justice is also liable to be quashed.
10. In the result and for the reasons stated above, the petitions are allowed. The FIR and the investigation report and the documents submitted with the report in Crime. No. 1/83 of Harihar Police Station, on the file of the J.M.F.C., Harihar, as also the order of sanction for prosecution Annexure-A produced in the writ petition are quashed.
11. Petitions allowed.