Karnataka High Court
K Gajendran vs State Of Karnataka on 24 September, 2018
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY
WRIT PETITION Nos.38777-38796 OF 2016 (GM-RES)
BETWEEN:
1. K. GAJENDRAN
S/O K. VENKATAPATHI NAIDU,
AGED ABOUT 67 YEARS,
R/AT NO.255, SRINILAYAM,
7TH MAIN ROAD, 4TH CROSS,
DOLLARS LAYOUT, J.P.NAGAR,
4TH PHASE, BENGALURU-560078.
2. D.R. NAGABHUSHAN
S/O RAMACHANDRA RAO,
AGED ABOUT 62 YEARS,
R/AT NO.112, 1ST C CROSS,
5TH BLOCK, 3RD PHASE, 3RD STAGE,
BANASHANKARI,
BENGALURU-560 085.
3. T.V. NARASIMHULU
S/O LATE T.VENKATASWAMY NAIDU,
AGED ABOUT 49 YEARS,
R/AT NO.1250, 2ND CROSS,
20TH MAIN, J.P.NAGAR II PHASE,
BENGALURU-560078.
4. K.G. PURUSHOTHAM
S/O K. GOVINDASWAMY NAIDU,
AGED ABOUT 60 YEARS,
NO.47, APMC YARD,
WP Nos.38777-38796/2016
2
BINNYPET, BENGALURU-560023.
5. S. RAMASWAMY
S/O SADASHIVAM,
AGED ABOUT 54 YEARS,
R/AT NO.116, M.R.LANE,
MANAVARTHPET,
BENGALURU-560 053.
6. N. MANIVASAKAM
S/O NAGAPPA PILLAI,
AGED ABOUT 61 YEARS,
R/AT NO.809, 5TH MAIN ROAD,
5TH CROSS, VIJAYANAGAR,
BENGALURU-560040.
7. K. SELVAM
S/O M.A.KALLIAPPAN,
AGED ABOUT 61 YEARS,
R/AT NO.30
CHIKKALLASANDRA MAIN ROAD,
BEHIND MUNESHWARA TEMPLE,
HANUMAGIRI NAGAR,
BENGALURU-560061.
8. KRISHNA M
S/O LATE A. MARIMUTHU PILLAI,
AGED ABOUT 54 YEARS,
R/AT NO.44, SAJJAN RAO CIRCLE,
V.V.PURAM, BENGALURU-560 004.
9. ZAINULABDIN
S/O SULTAN SALAUDIN,
AGED ABOUT 65 YEARS,
R/AT NO.2145, EAST END C MAIN,
9TH BLOCK, JAYANAGAR,
BENGALURU-560 002.
WP Nos.38777-38796/2016
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10. K. RAJAMALAI
S/O KUPPASWAMY GOUNDER,
AGED ABOUT 48 YEARS,
R/AT NO.16, VASANT NILAYA,
B.D.G.LANE, RANASINGHPET,
BENGALURU-560 053.
11. D. GANESH
S/O DURAI PANDIAN,
AGED ABOUT 53 YEARS,
R/AT NO.150, II CROSS,
CANARA BANK COLONY,
CHIKKALLASANDRA,
BENGALURU-560 061.
12. B KAYAL VIZHI
W/O B. BHASKAR,
AGED ABOUT 56 YEARS,
R/AT NO.301, 3RD FLOOR,
EAST WEST RESIDENCY,
24TH MAIN, J.P.NAGAR, 7TH PHASE,,
BENGALURU-560 078.
13. N. SHANMUGHA SUNDARAM
S/O S. NAGAPPA PILLAI,
AGED ABOUT 59 YEARS,
NO.365, 9TH CROSS,
6TH BLOCK, 2ND STAGE,
NAGARBHAVI,
BENGALURU-560 072.
14. NOOR ASHIYAN
W/O T.A.YOUSUF ALI,
AGED ABOUT 52 YEARS,
R/AT NO.12/2
RIZWAN MASJID ROAD,
22ND MAIN, 15TH CROSS,
J.P.NAGAR 5TH PHASE,
WP Nos.38777-38796/2016
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BENGALURU-560 078.
15. P.MANJUNATH
S/O P.PALANIAPPAN,
AGED ABOUT 48 YEARS,
R/AT SEETHANIVAS, # 14,
CHORD ROAD, RAJAJINAGAR,
BENGALURU-560 010.
16. HAFEEZUR REHMAN
S/O T.K.ABDUL SUKUR SAIB,
AGED ABOUT 60 YEARS,
R/AT NO.ROSHAN COLONY,
TILAK NAGAR, JAYANAGAR,
BENGALURU-560 041.
17. B.BHASKAR
S/O LATE B. BUPATHI NAIDU,
AGED ABOUT 61 YEARS,
R/AT NO.10, APMC
BANANA YARD, BINNYPET,
BENGALURU-560 023.
18. R. PERIASWAMY
S/O M. RAMASWAMY CHETTIYAR,
AGED ABOUT 61 YEARS,
R/AT NO.196, SULTHANPET,
BENGALURU-560 053.
19. L. HYRUNNISA
W/O LATE A LIYAKATHALI,
AGED ABOUT 61 YEARS,
R/AT NO.23, CART STAND STREET,
JOLLYMOHALLA,
BENGALURU-560 023.
20. K. VENKATESH
S/O LATE A.KANNAIAH NAIDU,
WP Nos.38777-38796/2016
5
AGED ABOUT 57 YEARS,
R/AT NO.39, UDAYA NAGAR,
1ST CROSS, CHIKKAKALLASANDRA,
BENGALURU-560 061. ...PETITIONERS
(BY SRI. REUBEN JACOB, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH HALASURGATE POLICE STATION,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU-560 001.
2. A ALAM PASHA
S/O LATE P AMEER SAHEB,
AGED ABOUT 50 YEARS,
NO.674, 1ST FLOOR, 9TH A MAIN,
1ST STAGE, 1ST CROSS,
INDIRANAGAR,
BENGALURU-560 038. ...RESPONDENTS
(BY SRI. CHETAN DESAI, HCGP FOR R-1;
SRI. S. VISHWAJITH SHETTY, ADVOCATE FOR R-2)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C PRAYING TO QUASH THE COMPLINT
IN PCR NO.8438/2015 ON THE FILE OF THE 6TH
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU FILED BY THE R-2 VIDE ANNEXURE-A THE
ORDER DATED:22.6.2016 PASSED IN PCR NO.8438/2015 BY
THE 6TH ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU VIDE ANNEXURE-B AND THE FIR IN CRIME
NO.262/2015 DATED:2.7.2015 LODGED BY THE R-1 POLICE
VIDE ANNEXURE-C TO THE WP IN SO FAR AS THE
PETITIONERS ARE CONCERNED.
WP Nos.38777-38796/2016
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THESE PETITIONS COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
In these petitions, the petitioners have sought for the relief of issuance of a writ in the nature of certiorari seeking quashing of the complaint in PCR No.8438/2015, pending on the file of the learned VI Additional Chief Metropolitan Magistrate, Bengaluru (henceforth for brevity referred to as "the Court below") which is filed by the second respondent herein and also the order passed in the said PCR on 22.06.2015 by the Court below, ordering for investigation by the jurisdictional police in the said matter.
2. The summary of the complaint as could be seen from the perusal of the PCR No.8438/2015, a copy of which is produced at Annexure-A, is that the complainant therein who claims to be the allottee of the land measuring 11 acres 28 guntas situated at Chikka WP Nos.38777-38796/2016 7 Togur village, Bengaluru South Taluk, under the registered Lease-cum-Sale Agreement dated 03.12.2004, by the Karnataka Industrial Areas Development Board (henceforth for brevity referred to as "the KIADB"), has stated that the said land which was previously acquired by the KIADB prior to allotment in his favour was challenged by the present petitioners / accused before this Court in WP No.10828/2012 and 13471-205/2012 (LA-KIADB), which came to be disposed of by the order of this Court dated 31.08.2008, whereby, this Court allowed the writ petitions by quashing the notification under Section 28(4) of the KIADB Act, 1966 made by KIADB in favour of the second respondents / complainants' company. In the same writ petitions, this Court also remanded the matters to KIADB for fresh consideration. Thereafter, KIADB gave opportunity to putforth their case. According to the complainant, the present petitioners / accused filed their WP Nos.38777-38796/2016 8 statement of objections before the Special Land Acquisition Officer - II, KIADB, Bengaluru wherein the petitioners / accused in Paragraph 15 of the respective affidavits have said to have stated as below.
"It is submitted that I am a Banana Merchant who does not own any other site in Bengaluru and also do not own a house. The subject site is the only asset that I have and I cannot be deprived of the said site to feed the greed of Alam Pasha who has proposed that the land in question be acquired for his company. Alam Pasha the promoter of the company, which has sought for the acquisition of the land in question, is a know fraudster and land shark and there are several cases pending against him. The said fact may be considered and if the same are considered. It is evident that acquisition sought by Alam Pasha's Company is aubious and therefore the acquisition proceedings may be dropped."
WP Nos.38777-38796/2016 9
3. The complainant has further stated that the said statement made by the petitioner / accused are false statement, as such, it has attracted the offences punishable under Sections 177, 181, 182, 193 of IPC. The complainant also alleged that the petitioners had hatched a criminal conspiracy, thus, attracting the offence punishable under Section 120B of the IPC.
4. The Court below after receiving the said complaint filed by the present respondent No.2, by its order dated 22.06.2015 referred the complaint for investigation under Section 156(3) of Cr.P.C to the Station House Officer, Halasurgate Gate Police Station, Bengaluru (respondent No.1 herein).
5. It is the contention of the petitioners, as well, the argument of the learned counsel for the petitioners that no cognizance for the offences under Sections 177, 181 and 182 of IPC, can be taken because of the bar WP Nos.38777-38796/2016 10 under Section 195(1)(a) that the complainant must be a public servant.
6. It is also the argument of the learned counsel for the petitioners that when the very complainant in his complaint itself has alleged for the offences punishable under Sections 177, 181, 182, 193 r/w Section 120B of IPC, which are of non-cognizable, the first respondent - police with some ulterior motive while registering FIR also included offences punishable under Sections 465 and 468 of IPC, only to make it the cognizable offences, as such, the entire proceedings deserves to be quashed.
7. Thirdly, learned counsel for the petitioners also submitted that by a reading of the complaint in its entirety cannot make out any offence attracting Section 193 of IPC. Since there is no material shown to make out a prima facie case that there was any false evidence given by the petitioners / accused in the case.
WP Nos.38777-38796/2016 11
8. Lastly, learned counsel for the petitioners also said that the very complaint filed in the present format is not maintainable, since the complaint is not supported with any verifying affidavit which is required as per the judgment of the Hon'ble Apex Court in Priyanka Srivastava and another Vs. State of Uttar Pradesh and Others reported in (2015) 6 SCC 287.
9. Learned High Court Government Pleader in his brief submission submitted that the matter is still at the stage of investigation, as such, until a final report is filed, it cannot be said that the invocation of certain offences in the FIR is wrong.
10. Learned counsel for respondent No.2 in his argument though fairly submitted that a private complaint for the alleged offences punishable under Sections 177, 181, 182 by an individual, who is not a public servant is not maintainable, but, the complaint for WP Nos.38777-38796/2016 12 the offence punishable under Section 193 of IPC is maintainable in the instant case. He submitted that the allegations made in Paragraphs 9 and 12 of the complaint that the accused / petitioners had given false evidence which attracts second part of Section 193 of IPC.
11. According to the petitioners, they are the Banana Merchants had formed an association named as Plantain Merchants Welfare Association and a land to an extent of 12 acres 10 guntas was purchased by them and the sites were formed and each of the petitioners were allotted with a particular site which came to be registered in their name. It is the further contention of the petitioner that the very same land which was purchased by their Association was also sold by the vendor to the present respondent No.2, who inturn persuaded KIADB to acquire the said land.
WP Nos.38777-38796/2016 13 Subsequently, the very same second respondent forming a company and claiming himself to be the Managing Director of the said company succeeded in getting the very same land allotted to his company by the KIADB. According to the learned counsel for the petitioners, it is in that pretext, the accused in their statement of objections before the Special Land Acquisition Officer had made a statement at Paragraph 15 of the respective affidavits which has been referred by the complainant in his complaint at Paragraph 6.
12. The offences alleged against the petitioners / accused in the complaint filed by the second respondent are under Sections 177, 181, 182, 193 r/w Section 120B IPC. Section 195(1) of the Cr.P.C clearly mentions that, no Courts shall take cognizance of the offences under Sections 172 to 188, both inclusive of the IPC, except on WP Nos.38777-38796/2016 14 the complaint in writing of the public servant concerned or of whom he is administratively sub-ordinate.
13. Admittedly, in the instant case, the second respondent is not the public servant. No complaint by Special Land Acquisition Officer is made against the present petitioners accusing of the present petitioners committing any offences punishable under Sections 177, 181 or 182 of IPC, as such, as fairly conceded by learned counsel for respondent No.2, the second respondent ought not to have made a complaint for the alleged offences punishable under Sections 177, 181 and 182 of IPC.
14. A reading of the complaint go to show that at no stretch of imagination, an allegation is directly alleged or infers any complaint that the present petitioners / accused had anyway forged any document, much less, with an intention to cheat him. Even in his WP Nos.38777-38796/2016 15 complaint also, where the complainant has explained each of the alleged offences by quoting a particular Section under Indian Penal Code, with which, the said acts of the petitioners attracts the offences punishable under Sections 465 or 468 IPC.
Thus, in the absence of any accusation of allegation in the complaint to the effect that the petitioners / accused have committed any forgery, much less, for the purpose of cheating anybody, there was no reason for the Investigating Officer to incorporate Sections 465 and 468 of IPC in the FIR registered by him. As such, the very perusal of the order passed by Court below on 22.06.2016 referring the matter for investigation, where the Court has clearly mentioned that the alleged offences under Sections 177, 181, 182 and 193 of IPC are all being non cognizable offences, Investigating Officer though was at liberty to take permission to WP Nos.38777-38796/2016 16 investigate those cases, it appears that the Investigating Officer in order to over come the said observation incorporated under Sections 465 and 468 in FIR, though there was no whisper in the complaint in that regard.
15. Section 193 of IPC is also shown among the offences alleged by the second respondent / complainant in his complaint. Section 193 of IPC reads as below;
"193. Punishment for false evidence- Whoever intentionally gives false evidence in 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 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, WP Nos.38777-38796/2016 17 shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
16. According to the learned counsel for the petitioners, the proceedings before the Special Land Acquisition Officer is not a judicial proceeding, as such, the question of the petitioners / accused giving any false evidence in any such proceedings or fabricating false evidence, would not arise. Further, the alleged falsity in the statement is not in the form of any evidence, but, it is only in the statement of objections filed by the petitioners before the Special Land Acquisition Officer, as such, Section 193 of IPC is not attracted.
17. Per contra, it is the contention of the learned counsel for the second respondent that the complainant in his complaint itself has alleged that the petitioners have given false evidence, as such, the complaint for the WP Nos.38777-38796/2016 18 alleged offence under Section 193 of IPC is maintainable, since, it falls under the second part of Section 193 of IPC.
18. To attract the second part of section 193 IPC, there must be an act of (i) giving or fabricating an evidence (ii) such evidence must be a false evidence (iii) such an act must be done with an intention to do it.
In the instant case, the complainant at Paragraph 9 has stated that the petitioners / accused have made various averments in the statement of objections accompanied by the affidavit which are all false. Thus, according to the complainant himself, the alleged false averments are in the form of statement made in the statement of objections. However, on the contrary, the very same complainant in his complaint itself at Paragraph 6 has stated that accused persons in Paragraph 15 of the respective affidavits have made such false statement (Extract of the said statement has WP Nos.38777-38796/2016 19 already been reproduced hereinabove). Thus, even according to the complainant he himself is not quite sure as to whether those alleged statements were made only as statement of objections or was it giving a false evidence. The very same complainant in Paragraph 12 of his complaint has stated that the accused persons have committed an offence under Section 193 of IPC "by filing such a false affidavit before the Special Land Acquisition Officer". Thus, the complainant without himself being sure as to whether any affidavit was filed by the accused / petitioners before the Special Land Acquisition Officer making any statement therein, which according to the petitioners themselves were false, has made a bald allegations in different manner in different paragraphs of his complaint.
19. Assuming that the accused / petitioners have made certain statements in their statement of objections WP Nos.38777-38796/2016 20 before the Special Land Acquisition Officer, still there is no mentioning in the complaint, as to, how come the complainants considered them as a false evidence or fabricating the false evidence given by the accused / petitioners intentionally.
20. On the other hand, copy of statement of objections produced by the petitioners at Annexure-E along with the writ petitions go to show that the said alleged false statement (extraction of which is given above) is shown in Paragraph 15 of the statement of objections of the accused / petitioners, but, not in any of their affidavits. As such, when the complaint under consideration is read, prima facie, it can be held that even Section 193 of IPC is not made out.
21. Lastly, it is contended that the complaint filed by respondent No.2, a copy of which is at Annexure-A is, without the signature of the complainant at the end of each page.
WP Nos.38777-38796/2016 21 That apart, the said complaint is unaccompanied by any affidavit of verification. Undisputedly, the said complaint was referred for investigation by invoking Section 156(3) of Cr.P.C by the Court below.
The Hon'ble Apex Court in Priyanka Srivastava's case (supra) wherein a complaint was filed under Section 200 Cr.P.C and the learned Magistrate has referred the complaint for investigation under Section 156(3) of Cr.P.C was pleased to observe at Paragraph 29 that a litigant at his own whim cannot invoke the authority of the Magistrate. It was further observed by the same Hon'ble Court at Paragraph 30 of its judgment that in their considered opinion, a stage has come in this Country where Section 156(3) Cr.P.C applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. The WP Nos.38777-38796/2016 22 Hon'ble Apex Court in Paragraph 31 of its judgment has given reason as to why an affidavit is required to be filed by the complainant, by stating that the warrant for giving a direction that an application under Section 156(3) of Cr.P.C be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see no false affidavit is made. It is because once an application affidavit is found to be false, he will be liable for prosecution in accordance with law.
In the instant case, admittedly, no affidavit is filed in the complaint. Thus, from the above analysis, it is clear that the complaint at its facial value was not deserving any reference for the offence punishable under Sections 177, 181, 182, 193 of IPC. Secondly, the Investigating Officer has for no reason incorporated Sections 465 and 468 of IPC. Even there being no WP Nos.38777-38796/2016 23 material for prima facie coming to an opinion that those alleged two offences are also attracted in the circumstances of the case.
22. Lastly, the PCR has not complied with the procedural requirement as observed by the Hon'ble Apex Court in Priyanka's case (supra), I am of the view that referring of the matter by the learned Magistrate for investigation invoking Section 156(3) of Cr.P.C was unwarranted and uncalled for in the instant case.
Accordingly, the writ petitions stand allowed. The PCR No.8438/2015, pending on the file of the learned VI Additional Chief Metropolitan Magistrate, Bengaluru stands quashed.
Sd/-
JUDGE GH