Karnataka High Court
Sri P O Shivakumar vs The State Of Karnataka on 7 August, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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Reserved on : 29.05.2024
Pronounced on : 07.08.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.13575 OF 2023
BETWEEN:
1 . SRI. P.O.SHIVAKUMAR
S/O P.OMKARA MURTHY
AGED ABOUT 64 YEARS
R/AT C-57, OMKAR B.,
2ND PARALLEL ROAD, 'B' BLOCK
GANDHINAGARA
SHIVAMOGGA - 577 202.
2 . SHAMANTH P. S.,
S/O SRI. P.O.SHIVAKUMAR
AGED ABOUT 24 YEARS
R/AT C-57, OMKARA
2ND PARALLEL ROAD 'B' BLOCK
GANDHINAGARA
SHIVAMOGGA - 577 202.
3 . SHRUTHASENA D. Y.,
S/O SRI. YADAVA D. S.,
AGED ABOUT 23 YEARS
R/O DURGADAHALLI, SUNKASALA
CHIKKAMAGALURU - 577 121.
2
4 . SRI. ASHOK KUMAR D. S.,
S/O D.N.SIDDAPPA
AGED ABOUT 65 YEARS
R/AT NO.181/A, NTI LAYOUT
RAJEEV GANDHI NAGAR
KODIGE HALLI POST
SAHAKAR NAGARA, BENGALURU.
... PETITIONERS
(BY SRI. K.N.PHANINDRA, SENIOR ADVOCATE FOR
SRI. SRIKANTH PATIL K., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY PUTTENAHALLI POLICE STATION
BENGALURU, NOW REPRESENTED BY
STATE PP, HIGH COURT OF KARNATAKA
BUILDING, BENGALURU - 560 001.
2. SRI. C.N.DHARANISH
S/O C.S.NARASIMHAIAH
AGED ABOUT 49 YEARS
R/AT. NO.70, C-1, 2ND MAIN
DOLLARS COLONY, MAHARAJA
ENCLAVE, J.P.NAGARA, IV PHASE
BENGALURU - 560 078.
... RESPONDENTS
(BY SRI. THEJESH P., HCGP FOR R1;
SRI. C.N.DHARANISH, PARTY-IN-PERSON R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO QUASH THE PRIVATE COMPLAINT DATED
03.10.2023 AND ENTIRE PROCEEDINGS IN PCR.NO.11401/2023
PENDING ON THE FILE OF XXX A.C.M.M BENGALURU (ANNEXURE-
A-1 AND A2) FIR IN CR.NO.349/2023 FILED BY THE 1ST
RESPONDENT POLICE PUTTENAHHALLI P.S. FOR THE OFFENCE
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P/U/S 120B, 182, 191, 192, 193, 211 R/W 34 OF IPC (ANNEXURE-
A).
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.05.2024 COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioners are before this Court calling in question
registration of a crime in Crime No.349 of 2023 for offences
punishable under Sections 120B, 182, 191, 192, 193, 211 and 34 of
the IPC arising out of P.C.R.No.11401 of 2023 pending before the
XXX Additional Chief Metropolitan Magistrate, Bengaluru.
2. Heard Sri K.N. Phanindra, learned senior counsel appearing
for the petitioners, Sri P. Thejesh, learned High Court Government
appearing for respondent No.1 and Sri C.N. Dharanish, respondent
No.2/party-in-person.
3. The facts in brief, germane, are as follows:-
The 2nd respondent is the complainant, a practicing Advocate.
The petitioners are arrayed as accused. The genesis of the problem
is not with the act of the petitioners. One Abhay H files a complaint
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against the 2nd respondent which becomes a crime in Crime No.282
of 2021 on 20-12-2021 for offences punishable under Sections 504,
506 and 34 of the IPC and Section 3(1)(r) and 3(1)(s) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Amendment Act, 2015 ('the Act' for short). The Police after
investigation file a 'B' report. The 'B' report comes to be accepted
and the proceedings closed against the complainant.
4. On 03-10-2023 the complainant registers a private
complaint against the petitioners in P.C.R. No.11401 of 2023. On
04-11-2023 the learned Magistrate exercising power under Section
156(3) of the CrPC refers the matter for investigation to the
jurisdictional police. The Police then register a crime in Crime
No.349 of 2023 for the aforementioned offences. The moment a
crime is registered, the petitioners have knocked at the doors of
this Court in the subject petition. This Court, in terms of its order
dated 21-12-2023, has stayed further investigation qua the
petitioners. With the consent of parties, the matter is taken up for
its final disposal.
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5. The learned senior counsel Sri K.N.Phanindra takes this
Court through the documents appended to the petition to
demonstrate that the petitioners have never registered any
complaint against the 2nd respondent. They have no transaction
with the 2nd respondent. It is one Abhay, accused No.1 has
registered the crime which ends up in a 'B' report. It is his
submission that the offences mentioned hereinabove would not
even attract any offence qua the petitioners. Therefore, there is no
question of these petitioners giving false evidence before the Court.
He would further contend that if it is the offence under Section 193
of the IPC, the crime must be registered by person authorized by
the Court. The 'B' report so filed in favour of the petitioners was on
verification of CCTV footage and there is no indication in the entire
report that there was any involvement of these petitioners in
furnishing any false information to the Police. It is his further
submission that the role played by these petitioners is not even
indicated to be an offence under Section 120B of the IPC at the
time when they tendered their evidence in the case against the
complainant. Seemingly a civil dispute is converted into a criminal
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case. Therefore, his submission is that further investigation should
not be permitted, for it to become an abuse of the process of law.
6. Per contra, the 2nd respondent appearing in person would
vehemently contend that 'B' report was filed after thorough
investigation in Crime No.282 of 2021. During the investigation it
was found that the 1st petitioner, a Police Officer was caught red
handed in the CCTV footage trying to fabricate a false atrocities
case against the complainant which formed part of 'B' report.
Therefore, the tampering of evidence, as could be gathered from
the CCTV footage, would clearly attract the offences alleged against
these petitioners. It is not today, but the 1st petitioner has an axe
to grind against the complainant, as both of them reside in the
same apartment complex and the 1st petitioner being a Police
Officer has repeatedly harassed the complainant and his family. He
would submit that it is a matter of trial for the petitioners to come
out clean, in the teeth of ingredients of Section 195 of the CrPC
being clearly met in the case at hand which would lead to the
offences so alleged. He would seek dismissal of the petition.
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7. I have given my anxious consideration to the submissions
made by the learned senior counsel, learned High Court
Government Pleader and the 2nd respondent in-person and have
perused the material on record.
8. The 2nd respondent, a practicing Advocate is a de-facto
complainant. He has appeared in person in these proceedings. A
little walk in the history would be necessary to draw certain
inference on the complaint filed by Sri H. Abhay and the Police filing
a 'B' report. The complainant is a resident of flat No.C-1 in
Maharaja Enclave Apartment at Dollars Colony, J.P.Nagar IV Phase,
Bangalore. It is the case of the 1st petitioner that his father
Sri P. Omkara Murthy had been allotted a site in Site No.70 formed
in Sy.No.19 of Dollars Colony by the Bangalore Development
Authority '(BDA' for short) in terms of a lease cum sale agreement.
On the death of his father, the 1st petitioner becomes owner of the
said site. The BDA had executed a registered sale deed in favour of
the 1st petitioner thereto. On 12-08-2005 the 1st petitioner enters
into a Joint Development Agreement with M/s Maharaja Developers
who sought to construct an apartment complex. In terms of the
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agreement, the 1st petitioner got 3 flats and a pent house. It is the
case of the complainant that he owns only two flats as per the
approved plan and a small room of 200 sq. ft. in a terrace which
was accordingly constructed by the builder and handed over to the
1st petitioner. The 1st petitioner has illegally constructed two more
flats above the flat of the complainant during which time heavy
damage was caused to the flat of the 2nd respondent. This
happened in the year 2008. It is from that point the dispute began
to brew between the 1st petitioner and the complainant.
9. It is the case of the petitioners that the complainant had
purchased Flat No.70/4 from the developer and since then the
complainant has been troubling the tenants and other flat mates by
filing several complaints alleging that the building was constructed
in violation of the sanctioned plan. Disputes galore between the
two, which would reach the Karnataka Appellate Tribunal and this
Court, in several writ petitions challenging the action of the Bruhat
Bengaluru Mahanagara Palike ('BBMP' for short) or the action of the
complainant seeking to initiate proceedings against the petitioners.
The issue leads up to orders being passed for demolition under
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Section 462 of the Karnataka Municipal Corporation Act, 1976 for
the illegally constructed flats which according to the complainant
was suppressed from the Court when he secures an order. The
disputes then would become the foundation of a complaint
registered by H.Abhay against the complainant for offences
punishable under the Act. The private complaint so filed was
referred to investigation and on reference, the Police register crime
in Crime No.282 of 2021 for offences punishable under Sections
504, 506 and 34 of the IPC and Section 3(1)(r) and 3(1)(s) of the
Act. The Police after investigation for 10 months file a 'B' report.
After filing of 'B' report by the Police in the complaint preferred by
H.Abhay, the complainant/2nd respondent files a private complaint
on 03.10.2023 invoking Section 200 of the CrPC before the learned
Magistrate against these petitioners. Since the entire issue is now
springs from the complaint, it is germane to notice certain
paragraphs of the private complaint. They read as follows:
"16) The accused No.4 D.S.Ahok Kumar who scripted the entire
fabricated story (in a filmy/movie style) of the crime incident
never turned up to the I/O for investigation even after repeated
notices issued by the I/O.
17) The main kingpin accused No.5 P.O. Shivakumar has been
clearly caught red handed along with the other accused in the
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CCTV Footage monitoring the entire saga of the false, fabricated
and vexatious story of the crime incident of the false and
fabricated heinous atrocity case near the complainant's
apartment.
18) Had the complainant not acted swiftly and secured the CTTV
FOOTAGE of his apartment and the street junction and sent it to
the I/O, the accused herein would have ruined the complainant's
entire family and their life, eternally.
19) The accused by this have together with common intention
with criminal conspiracy and malicious intention to wreak
vengeance have committed the following offences:
I. Together knowingly and intentionally misused and abused
the process of law with common intention, with criminal
conspiracy and malicious intention to wreak vengeance
against the complainant and his wife.
II. Together orchestrated BIG STORY of vexatious, false and
fabricated crime story of the false atrocity crime incident.
III. Together filed heinous false, fabricated and vexatious
atrocity complaint/case in crime #282/2021 of
Puttenahalli-Police against the complainant and his wife
on 20th DEC 2021.
IV. Together given fabricated false evidence to the I/O
(video-graphed and submitted to Hon'ble CCH-71 with "B
REPORT").
V. And also together intentionally injured the complainant
and his wife in body, reputation and mind and also
lowered them in front of the society.
This is one of the rarest of the rare criminal case where in each
and every accused are caught red handed having committed the
above mentioned criminal offences and also with clinching
documentary and CCTV footage evidence already available on
the file of Crime No.282 of 2021 of Puttenahalli-PS before the
Hon'ble Sessions Court CCH-71.
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Unless the necessary deterrent legal action is taken against the
culprits like these and punished in accordance with the larger
interest of society, who misuse and abuse the process of law
and also misuse and abuse the law meant to protect the SC/ST
community, the SOCIETY and INNOCENT PEOPLE WHO ARE
VICTIMS OF THESE CULPRITS WILL SUFFER FOR EVER.
20) Regarding the offence of the criminal conspiracy committed
by the accused u/sec.120B of IPC the criminal conspiracy of the
accused was to fix the complainant and his wife with the
following offences in the crime No.282 of 2021 of Puttenahalli
Police:
* Section 3(1)(r) and Section 3(1)(s) of the SC & ST
(Prevention of Atrocities) Amendment Act, 2015.
* Section 504 and Section 506 r/w Section 34 of IPC.
21) The offences under Section 3(1)(r) and Section 3(1)(s) of
the SC & ST (Prevention of Atrocities) Amendment Act, 2015 is
COGNIZABLE and also NON-BAILABLE OFFENCE and triable by
the Hon'ble COURT OF SESSIONS;
Regarding the offences under Section 504 and Section 506 r/w
Section 34 of IPC, punishment is 2 years and hence the offence
of criminal conspiracy under Section 120(B) of IPC is clearly
attracted against these accused and becomes cognizable and
non-bailable in nature.
22) The complainant has exhausted the remedies available to
register the cognizable criminal case against the accused
persons before approaching this Hon'ble Court.
23) The complainant has complied the requirements as
prescribed in the law or in the precedents of the Hon'ble Apex
Court of India and also filed necessary affidavit on oath
complying in accordance with law/procedures. Hence, the
complainant is before this Hon'ble Court with this complaint.
24) After perusing the complete CCTV FOOTAGE and other
documents, the detailed 'B-Report' and evidence available on
record before the Hon'ble CCH-71 in crime number 282 of 2021,
the offences committed by the accused persons are punishable
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under Section 120-B, 182, 191, 192, 193, 211, 499, 500 read
with Section 34 of the Indian Penal Code.
a) OF FALSE EVIDENCE AND OFENCES AGAINST PUBLIC JUSTICE
IPC Section 182 - False information, with intent to cause public
servant to use his lawful power to the injury of another person.
The accused have given false information to the Police to
use his lawful power to injury of the complainant and his
wife.
b) IPC Section 191 - Giving false evidence - A false statement as
to the belief of the person attesting is within the meaning of
this section, and a person may be guilty of giving false evidence
by stating that he believes a thing which he does not believe,
as well as by stating that he knows a thing which he does not
know.
The accused have knowingly and intentionally given false
evidence, even though they knew that it was false.
c) IPC Section 192 - Fabricating false evidence:- Whoever causes
any circumstance to exist or makes any false entry in any book
or record, or makes any document containing a false
statement, intending that such circumstance, false entry or
false statement may appear in evidence in a judicial
proceeding, or in a proceeding taken by law before a public
servant as such, or before an arbitrator, and that such
circumstance, false entry or false statement, so appearing in
evidence, may cause any person who in such proceeding is to
form an opinion upon the evidence, to entertain an erroneous
opinion touching any point material to the result of such
proceeding, is said "to fabricate false evidence".
The accused have together with criminal conspiracy and
common intention have created the circumstance of the
crime of the alleged offences of the false and fabricated
atrocity case.
d) IPC Section 193 - Punishment for false evidence:--Whoever
intentionally gives false evidence at any stage of a judicial
proceeding, or fabricates false evidence for the purpose of
being used in any stage of a judicial proceeding, shall be
punished with imprisonment of either description for a term
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which may extend to seven years, and shall also be liable to
fine;
and whoever intentionally gives or fabricates false evidence in
any other case, shall be punished with imprisonment of either
description for a term which may extend to three years, and
shall also be liable to fine.
The accused have together with criminal common
intention have given false evidence in the crime of the
false and fabricated atrocity case.
e) IPC Section 211 - False charge of offence made with intent to
injure: Whoever, with intent to cause injury to any person,
institutes or causes to be instituted any criminal proceeding
against that person, or falsely charges any person with having
committed an offence, knowing that there is no just or lawful
ground for such proceeding or charge against that person, shall
be punished with imprisonment of either description for a term
which may extend to two years, or with fine, or with both;
The accused have together with criminal conspiracy and
common intention to injure, have made false charge of
offence against the complainant and his wife in the crime
of the false and fabricated atrocity case.
f) IPC Section 499 - Defamation:--Whoever, by words either
spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning
any person intending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter expected, to
defame that person.
The accused have together with criminal conspiracy and
common intention to harm the complainant and his wife
have caused the said heinous false and fabricated atrocity
case without any probable cause have defamed and
lowered them in front of the society.
g) IPC Section 500 - Punishment for defamation:--Whoever
defames another shall be punished with simple imprisonment
for a term which may extend to two years, or with fine, or with
both.
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The accused have together with criminal conspiracy and
common intention have injured and defamed the
complainant and his wife and lowered them in front of the
society by instituting the heinous false and fabricated
atrocity case against them, without any probable cause.
h) IPC Section 34 - Acts done by several persons in furtherance of
common intention:-- When a criminal act is done by several
persons, in furtherance of the common intention of all, each of
such person is liable for that act in the same manner as if it
were done by him alone.
The accused have together with criminal conspiracy have
committed the above mentioned offences in furtherance
of common intention to wreak vengeance against the
complainant and his wife.
25) The complainant submits that he has not filed any other
complaint before any other court of law except this complaint
before this Hon'ble Court, regarding this cause of action.
26) The offences committed by the accused is within the
jurisdiction of Puttenahalli-Police, Bangalore and is within the
jurisdiction of this Hon'ble Court.
27) The complainant has approached the jurisdictional
Puttenahalli Police and jurisdictional DCP (South) and other
higher police authorities before approaching this Hon'ble Court."
28) The complainant has approached the jurisdictional
Puttenahalli police at the first instance, secondly the
jurisdictional DCP(south) and thirdly the other higher police
authorities, but none of them have initiated legal action against
the accused in accordance with law.
PRAYER
Wherefore, the complainant humbly and most respectfully
prays that this Hon'ble Court be pleased to;
(a) Refer this complaint to jurisdictional Puttenahalli Police
under section 156(3) of Cr.P.C to register the criminal case/FIR
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against the accused under section 120-B, 182, 191, 192, 193,
211, 499, 500 read with section 34 of the Indian Penal Code.
(b) Direct the Inspector of Police- Puttenahalli Police station,
to investigate the complaint and submit the final report to this
hon'ble court,
(c) Pass such other order/s in favour of the complaint
deemed fit by this hon'ble court in the facts and circumstances
of this case/complaint."
The said private complaint becomes a crime in Crime No.349 of
2023. The offences alleged are under Sections 120B, 182, 191,
192, 193, 211 and 34 of the IPC. The broad contents of the
complaint as noticed hereinabove, are that the 1st petitioner/
accused No.5 is a retired Police Officer and having influence in the
Police Department has repeatedly harassed the complainant and his
family by filing false cases to wreak vengeance for the act of the
complainant in initiating legal proceedings against illegal
construction of two flats by the 1st petitioner. The sheet anchor of
the submission of the respondent in-person is that accused No.1
H. Abhay belonging to Scheduled Caste or Scheduled Tribe
conspired with other accused to file complaint against the
complainant and his wife.
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10. The Investigating Officer investigates into the matter,
collects all the evidence and CCTV footage of the apartment
building and the BBMP CCTV footage on the street and then files a
'B' report on the score that no incident of hurling any abuse did
ever happen as alleged by accused No.1. The Court accepts the 'B'
report, after affording opportunity to the complainant therein closes
the same. Therefore, it was proved that the allegations levelled
against the complainant in Crime No.282 of 2021 were false. These
submissions would merit acceptance in the light of CCTV footage
rendering corroborative material to ward off the allegations of
hurling abuses taking the name of the caste by the complainant.
Based upon the said fact emerges the subject complaint. The
learned Magistrate, after considering the complaint so filed by the
complainant, refers the matter for investigation which becomes a
crime in Crime No.349 of 2023 for the afore-quoted offences,
subject crime. It is the registration of the crime that is challenged
in the case at hand.
11. It becomes germane to notice another analogous
proceeding instituted by the complainant against petitioners 1 and
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2, the father and son which had become the subject matter of
Criminal Petition No.6247 of 2019 before this Court. A coordinate
Bench of this Court, in the said criminal petition, observing that
there was evidence with regard to CCTV footage of the alleged
incident, dismisses the criminal petition. The order in the said
criminal petition reads as follows:
"2. The complaint goes on to state that despite his
request, the Police Inspector did not respond to his call and the
ACP received his call and informed him that he had instructed
the Sub-Inspector of Police to take necessary legal action. It
was stated that when the complainant tried to contact the Sub-
Inspector of Police, he got a recorded message that he was not
reachable after which he followed up on the issue with the
control room, who, in turn, sent the Hoysala Police and on their
arrival, he and his family members indicated the presence of the
1st petitioner and requested them to take legal action in the
light of the proclamation pending against him.
3. It was alleged that the Hoysala Police, instead of taking
action against the 1st petitioner, saluted him and let him go and
informed the complainant that they could not arrest him. It was
alleged that the 1st petitioner thereafter came out of his car and
started abusing and yelling at the complainant and his family
members using unparliamentary language and also threatened
to kill the entire family.
4. It was alleged that the complainant had requested his
wife to record the incident on her mobile phone , but
immediately thereafter the 1st petitioner went back to his car
and ran away from the spot.
5. It was alleged that the complainant had checked the
CCTV footage and it was found that the 1st petitioner's on i.e.,
the 2nd petitioner had damaged the CCTV camera by pulling out
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the wires. The complainant therefore requested an FIR be
registered and action be taken against the petitioners.
6. The Police registered the complaint as a non-
cognizable report and thereafter sought permission of the
Magistrate to investigate, as contemplated under Section 155(2)
of Cr.P.C. The Magistrate accorded permission to the police to
investigate, following which the police investigated the matter
and laid a chargesheet against the petitioners.
7. Being aggrieved by the initiation of criminal
proceedings which has culminated in the charge sheet, the
present petition has been filed.
8. Learned counsel for the petitioners contended that the
entire proceedings is a result of vendetta of the complainant and
the complainant, taking advantage of the fact that he was a
lawyer, had initiated umpteen proceedings against the
petitioners and, therefore, it was a clear case of the complainant
abusing the process of law which was required to be nipped at
the bud.
9. The complainant, who appears as a party-in-person,
however, contended that the allegation that he had lodged a
false complaint is absolutely in correct and he contended that
during the course of investigation, he had furnished the CCTV
footage and the Police, on examining the CCTV footage, had
concluded that there were adequate grounds available to
prosecute the petitioners and there was therefore no
justification for entertaining this petition that has been filed
under Section 482 of Cr.P.C. to quash the proceedings.
10. A perusal of the chargesheet indicates that the Police
have produced the DVD which contained the CCTV footage of
the alleged incident. In my view, having regard to the fact that
there is independent material to substantial the allegations of
the complainant, the Police were justified in laying the
chargesheet. Having regard to the materials on record, in my
view, it would not be an appropriate case to invoke the
extended jurisdiction under Section 482 of the Cr.P.C. to quash
the proceedings. The petition is therefore dismissed."
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In the light of the aforesaid circumstance of dismissal of criminal
petition inter alia, finding that the issue in the case at hand projects
a maze of facts, interference at the stage of investigation that too
on the specious plea that the petitioners had nothing to do with the
case against the complainant in Crime No.282 of 2021 cannot be
accepted and interfered at this stage.
12. It is also germane to notice that the complainant has
submitted 3 DVD with CCTV footage along with an affidavit under
Section 65B of the Evidence Act for the purpose of investigation by
the Investigating Officer and has also supplied all incriminating
materials. These materials were already taken note of by the
coordinate Bench when rejecting the criminal petition. Therefore,
the issue in the lis forms a maze of facts. It is a dispute which is not
purely civil as is projected by the learned senior counsel for the
petitioners, but would require investigation in the least. The
contention that there is a bar under Section 195 of the CrPC to
allege the subject offences that are alleged against the petitioners
would also be unacceptable as Section 195 of the CrPC comes into
operation at the stage when the Court intends to take cognizance of
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the offence under the CrPC. It does not deal with statutory power of
the Police to investigate into a FIR once it is referred for such
investigation.
13. Now it becomes apposite to refer to the judgment of the
High Court of Allahabad in the case of VISHWANATH v. STATE OF
U.P.1 wherein it is held as follows:
".... .... ....
10. Section 195 (I) (b) bars the Court taking cognizance
of an offence, in which, forgery has been committed in a
documents filed in case pending in any Civil, Criminal or
Revenue Court, if such forgery has been made in any Court
proceedings, then the concerned Court should file a complaint
as provided under Section 340 Cr. P.C.
11. From the perusal of averments made in the
application under Section 156(3) Cr. P.C., it transpires that
alleged forgery in affidavit and will deed was not done while
they were already been filed in the case pending in different
Courts. The alleged false affidavit or forged document were
prepared out side the Court and same has been filed in the
judicial proceedings in a case pending in a Court. Thus, the bar
against taking cognizance of a criminal case is not applicable in
the facts and circumstances given in the application under
Section 156(3) Cr. P.C.
12. The Hon'ble Apex Court has held in paragraph nos. 7,
8, 9 and 13 of the judgment in Sachida Nand Singh v. State of
Bihar, (1998) 2 SCC 493, condition necessary for application of
the bar under Section 195(1) (B) Cr. P.C., which is as follows:--
1
2024 SCC OnLine All 775
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7. Even if the clause is capable of two interpretations we
are inclined to choose the narrower interpretation for obvious
reasons. Section 190 of the Code empowers "any magistrate of
the first class" to take cognizance of "any offence" upon
receiving a complaint, or police report or information or upon
his own knowledge. Section 195 restricts such general powers
of the magistrate, and the general right of a person to move
the court with a complaint is to that extent curtailed. It is a
well-recognised canon of interpretation that provision curbing
the general jurisdiction of the court must normally receive strict
interpretation unless the statute or the context requires
otherwise (Abdul Waheed Khan v. Bhawani [AIR 1966 SC
1718 : (1966) 3 SCR 617]).
8. That apart it is difficult to interpret Section
195(1)(b)(ii) as containing a bar against initiation of
prosecution proceedings merely because the document
concerned was produced in a court albeit the act of forgery was
perpetrated prior to its production in the Court. Any such
construction is likely to ensue unsavoury consequences. For
instance, if rank forgery of a valuable document is detected and
the forgerer is sure that he would imminently be embroiled in
prosecution proceedings he can simply get that document
produced in any long-drawn litigation which was either
instituted by himself or somebody else who can be influenced
by him and thereby pre-empt the prosecution for the entire
long period of pendency of that litigation. It is a settled
proposition that if the language of a legislation is capable of
more than one interpretation, the one which is capable of
causing mischievous consequences should be averted. Quoting
from Gill v. Donald Humberstone & Co. Ltd. [[1963] 1 WLR
929 : [1963] 3 All ER 1803] Maxwell has stated in his treatise
(Interpretation of Statutes, 12th Edn., p. 105) that "if the
language is capable of more than one interpretation we ought
to discard the more natural meaning if it leads to unreasonable
result and adopt that interpretation which leads to a reasonably
practicable result". The clause which we are now considering
contains enough indication to show that the more natural
meaning is that which leans in favour of a strict construction,
and hence the aforesaid observation is eminently applicable
here.
9. As Section 340(1) of the Code has an interlink with
Section 195(1)(b) it is necessary to refer to that sub-section in
the present context. The said sub-section reads as follows:
22
"340. When upon an application made to it in this behalf or
otherwise, any Court is of opinion that it is expedient in the interest of
justice that an inquiry should be made into any offence referred to in
clause (b) of subsection (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 first 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."
13. The three-Judge Bench of this Court in Patel
Laljibhai Somabhai case [(1971) 2 SCC 376 : 1971 SCC (Cri)
548 : AIR 1971 SC 1935] has interpreted the corresponding
section in the old Code, [Section 195(1)(c)] in almost the same
manner as indicated above. It is advantageous in this context
to extract clause (c) of Section 195(1) of the old Code:
"195. (1)(c) No Court shall take cognizance.--
of any offence described in Section 463 or punishable under Section
471, Section 475 or Section 476 of the same Code, when such offence
is alleged to have been committed by a party to any proceeding in any
Court in respect of a document produced or given in evidence in such
proceeding, except on the complaint in writing of such Court, or of
some other Court to which such Court is subordinate."
(emphasis supplied)
The issue involved in Patel Laljibhai Somabhai case
[(1971) 2 SCC 376 : 1971 SCC (Cri) 548 : AIR 1971 SC 1935]
related to the applicability of that sub-section to a case where
forged document was produced in a suit by a party thereto, and
subsequently a prosecution was launched against him for
offences under Sections 467 and 471 of IPC through a private
complaint. The ratio of the decision therein is the following:
(SCC Headnote)
"The offences about which the court alone is clothed with the
right to complain may, therefore, be appropriately considered to be
only those offences committed by a party to a proceeding in that
court, the commission of which has a reasonably close nexus with the
proceedings in that court so that it can without embarking upon a
23
completely independent and fresh inquiry, satisfactorily consider by
reference principally to its records the expediency of prosecuting the
delinquent party. It, therefore, appears to be more appropriate to
adopt the strict construction of confirming the prohibition contained in
Section 195(1)(c) only to those cases in which the offences specified
therein were committed by a party to the proceeding in the character
as such party."
13. Considering the law laid down by the Hon'ble Apex
Court in Sachida Nand Singh (supra), it is obvious that
Magistrate has wrongly held that Section 195(1)(b) Cr. P.C. bars
registration of FIR even in a case where alleged forgery has
been committed in the document out side the Court and
thereafter, it has been filed in a judicial proceedings in a case
pending in a Court.
14. Apart from this Section 195(1)(b) Cr. P.C., imposes
no bar on registration of a criminal case relating to such forge
documents, it merely bars that the Magistrate shall not take
cognizance of an offence regarding such forged document unless
the Court, in which, forgery has been committed, filed a
complaint case in accordance with the provision of
Section 340 Cr. P.C. The Magistrate has not discussed or given
any other reason for rejecting the application filed under
Section 156(3) Cr. P.C. and also has not considered the other
point raised in the application for registering a criminal case
regarding alleged forged affidavit and false will."
The learned Judge of the Allahabad High Court holds that Section
195(1)(b) bars the Court to take cognizance of the offence in which
forgery has been committed in the documents filed in any case
pending in any civil, criminal or revenue Court. It is thus, at the
stage of cognizance the bar would become applicable. I am in
respectful agreement with what the High Court of Allahabad has
held. The Apex Court in the case of WAZIR KHAN v. STATE OF
24
UTTARAKHAND2 following the judgment of the Apex Court in the
case of TRIMUKH MAROTI KIRKAN v. STATE OF
MAHARASHTRA3 has held as follows:
"28. If an offence takes place inside the four walls of a
house and in such circumstances where the assailants have all
the opportunity to plan and commit the offence at the time and
in the circumstances of their choice, it will be extremely difficult
for the prosecution to lead evidence to establish the guilt of the
accused, if the strict principle of circumstantial evidence, is
insisted upon by the courts. Reference could be made to a
decision of this Court in Trimukh Maroti Kirkan v. State of
Maharashtra [Trimukh Maroti Kirkan v. State of Maharashtra,
(2006) 10 SCC 681 : (2007) 1 SCC (Cri) 80] , in which this
Court observed that a Judge does not preside over a criminal
trial merely to see that no innocent man is punished. This Court
proceeded to observe that a Judge also presides to see that a
guilty man does not escape. Both are public duties. The law
does not enjoin a duty on the prosecution to lead evidence of
such character, which is almost impossible to be led, or at any
rate, extremely difficult to be led. The duty on the prosecution is
to lead such evidence, which it is capable of leading, having
regard to the facts and circumstances of the case."
The Apex Court observes that the judge does not preside over a
criminal trial merely to see that no innocent man is punished but to
judge that a guilty man does not escape. Both these are public
duties. If the observation of the Apex Court is paraphrased to the
facts obtaining in the case at hand, in the considered view of the
Court, there can be no interference at this stage to quash the
2
(2023) 8 SCC 597
3
(2006) 10 SCC 681
25
registration of the crime against the petitioners. If interference at
the hands of this Court would happen, it would run foul of the
judgment of the Apex Court in the case of KAPTAN SINGH v.
STATE OF UTTAR PRADESH4 wherein it is held as follows:
"9.1. At the outset, it is required to be noted that
in the present case the High Court in exercise of powers
under Section 482 CrPC has quashed the criminal
proceedings for the offences under Sections 147, 148,
149, 406, 329 and 386 IPC. It is required to be noted
that when the High Court in exercise of powers under
Section 482 CrPC quashed the criminal proceedings, by
the time the investigating officer after recording the
statement of the witnesses, statement of the
complainant and collecting the evidence from the
incident place and after taking statement of the
independent witnesses and even statement of the
accused persons, has filed the charge-sheet before the
learned Magistrate for the offences under Sections 147,
148, 149, 406, 329 and 386 IPC and even the learned
Magistrate also took the cognizance. From the impugned
judgment and order [Radhey Shyam Gupta v. State of U.P.,
2020 SCC OnLine All 914] passed by the High Court, it does
not appear that the High Court took into consideration the
material collected during the investigation/inquiry and even
the statements recorded. If the petition under Section 482
CrPC was at the stage of FIR in that case the allegations
in the FIR/complaint only are required to be considered
and whether a cognizable offence is disclosed or not is
required to be considered. However, thereafter when
the statements are recorded, evidence is collected and
the charge-sheet is filed after conclusion of the
investigation/inquiry the matter stands on different
footing and the Court is required to consider the
material/evidence collected during the investigation.
Even at this stage also, as observed and held by this Court in
a catena of decisions, the High Court is not required to go into
4
(2021) 9 SCC 35
26
the merits of the allegations and/or enter into the merits of
the case as if the High Court is exercising the appellate
jurisdiction and/or conducting the trial. As held by this Court
in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai
Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC
(Cri) 683] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High Court
cannot act like the investigating agency nor can exercise the
powers like an appellate court. It is further observed and held
that that question is required to be examined keeping in view,
the contents of FIR and prima facie material, if any, requiring
no proof. At such stage, the High Court cannot appreciate
evidence nor can it draw its own inferences from
contents of FIR and material relied on. It is further
observed it is more so, when the material relied on is
disputed. It is further observed that in such a situation,
it becomes the job of the investigating authority at such
stage to probe and then of the court to examine
questions once the charge-sheet is filed along with such
material as to how far and to what extent reliance can
be placed on such material.
9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram
Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :
(2020) 3 SCC (Cri) 672] after considering the decisions of this
Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992
Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this
Court that exercise of powers under Section 482 CrPC to
quash the proceedings is an exception and not a rule. It is
further observed that inherent jurisdiction under
Section 482 CrPC though wide is to be exercised
sparingly, carefully and with caution, only when such
exercise is justified by tests specifically laid down in the
section itself. It is further observed that appreciation of
evidence is not permissible at the stage of quashing of
proceedings in exercise of powers under Section 482
CrPC. Similar view has been expressed by this Court in Arvind
Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1
SCC (Cri) 94] , Managipet [State of Telangana v. Managipet,
(2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and
in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1
SCC (Cri) 173] , referred to hereinabove.
27
9.3. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are of
the opinion that the High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers under
Section 482 CrPC.
10. The High Court has failed to appreciate and consider
the fact that there are very serious triable issues/allegations
which are required to be gone into and considered at the time
of trial. The High Court has lost sight of crucial aspects which
have emerged during the course of the investigation. The High
Court has failed to appreciate and consider the fact that the
document i.e. a joint notarised affidavit of Mamta Gupta
Accused 2 and Munni Devi under which according to Accused 2
Ms Mamta Gupta, Rs 25 lakhs was paid and the possession
was transferred to her itself is seriously disputed. It is required
to be noted that in the registered agreement to sell dated 27-
10-2010, the sale consideration is stated to be Rs 25 lakhs
and with no reference to payment of Rs 25 lakhs to Ms Munni
Devi and no reference to handing over the possession.
However, in the joint notarised affidavit of the same date i.e.
27-10-2010 sale consideration is stated to be Rs 35 lakhs out
of which Rs 25 lakhs is alleged to have been paid and there is
a reference to transfer of possession to Accused 2. Whether Rs
25 lakhs has been paid or not the accused have to establish
during the trial, because the accused are relying upon the said
document and payment of Rs 25 lakhs as mentioned in the
joint notarised affidavit dated 27-10-2010. It is also required
to be considered that the first agreement to sell in which Rs 25
lakhs is stated to be sale consideration and there is reference
to the payment of Rs 10 lakhs by cheques. It is a registered
document. The aforesaid are all triable issues/allegations
which are required to be considered at the time of trial. The
High Court has failed to notice and/or consider the material
collected during the investigation.
11. Now so far as the finding recorded by the High Court
that no case is made out for the offence under Section 406 IPC
is concerned, it is to be noted that the High Court itself has
noted that the joint notarised affidavit dated 27-10-2010 is
seriously disputed, however as per the High Court the same is
required to be considered in the civil proceedings. There the
28
High Court has committed an error. Even the High Court has
failed to notice that another FIR has been lodged against the
accused for the offences under Sections 467, 468, 471 IPC
with respect to the said alleged joint notarised affidavit. Even
according to the accused the possession was handed over to
them. However, when the payment of Rs 25 lakhs as
mentioned in the joint notarised affidavit is seriously disputed
and even one of the cheques out of 5 cheques each of Rs 2
lakhs was dishonoured and according to the accused they were
handed over the possession (which is seriously disputed) it can
be said to be entrustment of property. Therefore, at this stage
to opine that no case is made out for the offence under
Section 406 IPC is premature and the aforesaid aspect is to be
considered during trial. It is also required to be noted that the
first suit was filed by Munni Devi and thereafter subsequent
suit came to be filed by the accused and that too for
permanent injunction only. Nothing is on record that any suit
for specific performance has been filed. Be that as it may, all
the aforesaid aspects are required to be considered at the time
of trial only.
12. Therefore, the High Court has grossly erred in
quashing the criminal proceedings by entering into the
merits of the allegations as if the High Court was
exercising the appellate jurisdiction and/or conducting
the trial. The High Court has exceeded its jurisdiction in
quashing the criminal proceedings in exercise of powers
under Section 482 CrPC.
13. Even the High Court has erred in observing that
original complaint has no locus. The aforesaid observation is
made on the premise that the complainant has not placed on
record the power of attorney along with the counter filed
before the High Court. However, when it is specifically stated
in the FIR that Munni Devi has executed the power of attorney
and thereafter the investigating officer has conducted the
investigation and has recorded the statement of the
complainant, accused and the independent witnesses,
thereafter whether the complainant is having the power of
attorney or not is to be considered during trial.
29
14. In view of the above and for the reasons stated
above, the impugned judgment and order [Radhey Shyam
Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by
the High Court quashing the criminal proceedings in exercise
of powers under Section 482 CrPC is unsustainable and the
same deserves to be quashed and set aside and is accordingly
quashed and set aside. Now, the trial is to be conducted and
proceeded further in accordance with law and on its own
merits. It is made clear that the observations made by this
Court in the present proceedings are to be treated to be
confined to the proceedings under Section 482 CrPC only and
the trial court to decide the case in accordance with law and
on its own merits and on the basis of the evidence to be laid
and without being influenced by any of the observations made
by us hereinabove. The present appeal is accordingly allowed."
(Emphasis supplied)
14. In the light of the aforesaid reasons, I do not find any
warrant to interfere with the impugned proceedings. Hence, the
following:
ORDER
(i) The criminal petition lacking in merit stands rejected. Interim order of any kind operating, shall stand dissolved.
(ii) It is made clear that the observations made in the course of the order are only for the purpose of consideration of the case of petitioners under Section 30 482 of Cr.P.C. and the same shall not bind or influence the proceedings against them in the pending proceedings or other proceedings pending before any other fora.
Consequently, pending applications if any, also stand disposed.
Sd/-
(M. NAGAPRASANNA) JUDGE bkp CT:SS