Karnataka High Court
Basappa S/O Muttappa Mugalkhod vs The State Of Karnataka on 20 July, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH.
DATED THIS THE 20TH DAY OF JULY 2017.
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION NO.101549 OF 2017.
BETWEEN:
BASAPPA S/O MUTTAPPA MUGALKHOD,
AGE: 70 YEARS, OCC: COOLIE,
R/O: GOLABHAVI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
...PETITIONER
(BY SRI.PRASHANT S. KADADEVAR, ADVCOATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA DHARWAD BENCH
THROUGH SHERISTEDAR CIVIL JUDGE AND J.M.F.C.
BANAHATTI, TQ: JAMAKHANDI,
DIST: BAGALKOT.
...RESPONDENT
(BY SRI.RAJA RAGHAVENDRA NAIK-HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., SEEKING TO QUASH THE ENTIRE PROCEEDINGS IN
C.C.NO.871 OF 2016 ON THE FILE OF THE CIVIL JUDGE AND
JMFC, BANAHATTI FOR THE OFFENCE PUNISHABLE UNDER
SECTION 193 OF IPC AND READ WITH 9 OF KARNATAKA (CASE
FLOW MANAGEMENT IN SUBORDINATE COURTS) RULES 2005.
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THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER
Though the matter is listed for admission, but with the consent of both the sides, it is taken up for final disposal.
2. This petition is filed by the petitioner-accused under Section 482 of the Criminal Procedure Code, praying the Court to quash the entire proceedings in C.C.No.871/2016 on the file of the Civil Judge and JMFC, Banahati, for the offence punishable under Section 193 of the Indian Penal Code read with Rule 9 of the Karnataka (Case Flow Management in Sub-Ordinate Courts) Rules, 2005.
3. Brief facts of the case as pleaded by the petitioner in this petition, that one Siddappa s/o Balappa Hadkar (plaintiff) had filed the suit bearing O.S.No.65/2008 against one Appasab and others seeking the relief of specific performance of the agreement of sale. :3: On 24.10.2016 the Trial Court after hearing the matter was pleased to hold that D.W.-3 falsely deposed before the Court, with regard to Ex.P-2 saying that it does not belongs to him and thereby the said witness intentionally deposed falsely before the Court. The D.W.3 is none other than the petitioner herein. As such the Hon'ble Court was pleased to direct the office to register the criminal case as against petitioner/D.W.3 for the offence punishable under Section 193 of IPC and accordingly the criminal proceedings are initiated against the present petitioner. The petitioner, challenging the legality and correctness of the same on the grounds as mentioned in the petition at ground No.1 to 7, is before this Court.
4. Heard the arguments of the learned counsel appearing for petitioner-accused and so also the learned High Court Government Pleader for the respondent-State.
5. Learned counsel made the submission, that the petitioner has not at all committed any such offence, even :4: if it is assumed that he has given a false evidence before the said Court, then the procedure to be followed for initiation of the criminal proceedings is as per the Section 195 of the Cr.P.C. The learned counsel submitted that said procedure was not at all followed in this case and he draw the attention of this Court to the document certified copy of the order sheet produced on page No.36 of the file as per the Annexure-B and he referring to relief column he read the order and below that it is signed by C.A.O./C.M.O. Therefore, learned counsel made the submission, that it is not the Court that has taken cognizance of the offence, but it is the C.A.O./C.M.O. of the said Court has taken the cognizance of the case, then it was placed before the Court of JMFC, Banahatti. Hence, it is his submission that looking to this document itself it clearly goes to show the initiation of the criminal proceedings against the petitioner herein in violation of the mandatory provisions of law. Hence, he submitted that petition be allowed and the criminal proceedings initiated are to be quashed. Hence, he lastly submitted to allow the petition. In support of his :5: contention learned counsel for the petitioner relied upon two decisions which are as under:-
1. The decision of the Hon'ble Apex Court dated 25th January 1962 rendered in the case of Daulat Ram v/s State of Punjab.
2. AIR (KAR) 1955 01 in the case of B.N.Subba Rao v/s State of Mysore.
6. Per contra the learned HCGP made the submission that this order and the observation as against the present petitioner is made by the learned Trial Judge, while disposing of the main suit. Hence, the learned HCGP submitted that in such situation Section 344 of the Cr.P.C.
is made applicable. Hence, he submitted that whatever the action taken as against the present petitioner is in accordance with law. No illegality has been committed by the Trial Court and hence there is no merit in the petition, same is to be rejected.
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7. I have perused the grounds urged in the petition, the judgment of the Trial Court passed in O.S.No.65/2008. So also the document Annexure-B for taking cognizance in the matter and also perused the 02 decisions relied upon by learned counsel for the petitioner herein, which are referred above and I have also considered the submission made by learned counsels on both the sides at the bar.
8. Looking to the document Annexure-B the certified copy of the order sheet, wherein it is mentioned below the word Relief as under:-
Relief :
"As per the order dtd. 24.10.2016 in O.S.No.65/2008 on the file of this Court and the order dtd.29.05.2008.
Cognizance is taken against the accused for the offence U/Sec. 193 of IPC and R/w Rule 9 of Karnataka (Case Flow Management in subordinate Courts) Rules, 2005 for deposing false evidence on oath before the Court in the case", below that it is signed by C.A.O./C.M.O., below that :7: it is mentioned "Registered and Putup/made over this case to the Civil Judge and JMFC Banahatti court for disposal according to law, which is singed by Civil Judge and JMFC, Banahatti, Bagalkot dated 22.12"
9. So, this document clearly goes to show that it is the C.A.O./C.M.O. of the said Court, who has taken the cognizance but not the JMFC, Banahatti, which is unknown to law. Not only that as submitted by the learned counsel for the petitioner, that to proceed in the matter to take action under such circumstances written complaint is must to be filed by the Court or through its officer. But in the case on hand, it is not the case of the prosecution, that any such written complaint is filed in the case and only basing on the observation made by the learned JMFC in the said suit, the C.A.O. proceeded to pass to such order. Therefore, the order is not at all sustainable in law, as it is not in accordance with the mandatory provisions of Section 195 and 340 of the Cr.P.C. Apart from that so far as the contention of learned HCGP referring to Section 344 of the :8: Cr.P.C., he made the submission that the observation made by the Court, while disposing of the suit and hence the whatever action initiated is correct, is concerned I perused the Section 344 of the Cr.P.C. this Section reads as under:-
"344. Summary procedure for trial for giving false evidence.-
(1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which :9: may extend to three months, or to fine which may extend to five hundred rupees, or with both. (2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
(3) Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section.
(4) Where, after any action is initiated under sub-section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub- section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision".
10. Even if it is taken for consideration as submitted by the learned HCGP, that Section also requires issuing show cause notice to the person who gave false : 10 : evidence before the Court. Even that is also not done in this case, no as such show cause notice is issued, no material is produced by the prosecution, either that they have file the written complaint in the case or they have issued the show cause notice to the petitioner herein, before the initiation of such criminal proceedings against him.
11. I have also perused the decision relied upon by learned counsel appearing for the petitioner, which are referred considering all these aspects of the matter. I am of the clear opinion that initiation of criminal proceedings are patiently illegal, not in accordance with the mandatory provisions of law. Hence, petitioner has made out a case, petition is allowed, and criminal proceedings initiated are hereby quashed.
Sd/-
JUDGE RHR/-