Karnataka High Court
Smt Subhadra vs State Of Karnataka on 17 February, 2020
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.84/2018
BETWEEN
SMT. SUBHADRA,
W/O SRI.RAVINDRAN,
AGED 60 YEARS,
OCCUPATION: AGRICULTURE
& HOUSEHOLD WORK,
RESIDENT OF MAIN ROAD,
N.R. PURA TOWN,
HILUVALI VILLAGE,
NARASIMRAJA TALUK,
CHIKMAGALUR DISTRICT - 577 134.
ALSO AT: NEAR D.G.KUMAR HOUSE,
HILUVALI VILLAGE, NARASIMRAJA TALUK,
CHIKMAGALUR DISTRICT - 577 134.
...PETITIONER
(BY SRI. P.PRASANNA KUMAR, ADVOCATE)
AND
1. STATE OF KARNATAKA,
BY LOKAYUKTHA POLICE,
CHIKMAGALUR,
REPRESENTED BY ITS
SPECIAL PUBLIC PROSECUTOR,
OFFICE OF KARNATAKA LOKAYUKTHA,
M.S.BUILDING,
DR.B.R. AMBEDKAR VEEDHI,
BENGALURU - 560 001.
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2. SRI VASUDEVA KOTYAN @ VASUDEVA,
S/O MR. KORAGA POOJARY,
AGED 52 YEARS,
OCCUPATION: AGRICULTURE,
RESIDENT OF ICHEKERE VILLAGE,
B.H. KALMARA,
BALAHONUR HOBLI,
NARASIMRAJA TALUK,
CHIKMAGALURU - 577 117.
... RESPONDENTS
(BY SRI. VENKATESH.S.ARABATTI SPL. PP FOR R1;
SRI.G.R. MOHAN, ADVOCATE FOR R2)
THIS CRL.RP. IS FILED U/S.397 R/W 401 CR.P.C.
PRAYING TO SET ASIDE THE ORDER DATED 20.12.2017
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, CHICKAMAGALURU IN
SPL.C.(P.C.ACT)NO.42/2015 (PCR NO.3/2012) THEREBY
REFUSING TO ACCEPT THE ORAL ARGUMENTS
ADVANCED BY THE ACCUSED NO.15/PETITIONER U/S
7,8,13(1)(a)(d) OF PREVENTION OF CORRUPTION ACT, 1988
AND SEC.117,119,120(B),408,409,420,465,468,471 AND
201 OF IPC AND SEC.192A OF THE KARNATAKA LAND
REVENUE ACT AND CONSEQUENTLY DISCHARGE THE
PETITIONER/ACCUSED NO.15.
THIS CRL.RP. COMING ON FOR ORDERS THIS DAY,
THE COURT MADE THE FOLLOWING:-
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ORDER
The petitioner/accused No.15 filed this revision petition under Section 397 read with Section 401(2) of Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C' for short) assailing the order passed by the Principal District & Sessions Judge, Chikmagalur, dated 20.12.2017 in Special Case (PC Act) No.42/2015 (PCR No.3/2012).
2. Heard the arguments of the learned counsel, Sri. Prasanna Kumar.P for the petitioner/accused No.15 as well as learned Special Public Prosecutor, Sri.Venkatesh.S.Arabatti for the respondent- Lokayuktha Police.
3. The rank of the parties before the trial Court is retained for the sake of convenience.
4. The case of the petitioner is that the respondent- Lokayuktha Police filed charge sheet against the petitioner/accused No.15 and against 23 accused 4 persons for the offences punishable under Sections 7, 8 & 13(1)(a)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C.Act' for short) read with Sections 117, 119, 120(B), 408, 409, 420, 465, 468, 471, 201 of IPC (hereinafter referred to as 'IPC' for short) read with Section 192(A) of the Karnataka Land Revenue Act, 1964 (hereinafter referred to as 'KLR Act' for short).
5. It is alleged by the prosecution that the complaint filed by Vasudeva Kotyan @ Vasudeva, before the trial Court under Section 200 of Cr.P.C, was referred to the Lokayuktha Police, Chikkamagaluru under Section 156(3) of Cr.P.C. to investigate and submit report. Subsequently, the Investigation Officer registered FIR and arrested accused persons and they were said to be released on bail and after completion of investigation, the charge sheet came to be filed for the aforesaid offences.
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6. After appearance of the accused persons before the trial Court, the accused Nos.10 & 15 have filed an application under Section 227 of Cr.P.C for discharging them from the charges, which came to be dismissed. Accused No.10 has not filed any revision but accused No.15 has filed this revision petition challenging the order of dismissal.
7. Learned counsel, Sri. Prasanna Kumar.P appearing for the petitioner argued the matter and submitted that the order of the trial Court is not sustainable under law and absolutely there are no ingredients or any material placed on record by the Investigation Officer in order to frame charges against the accused No.15. Learned counsel further contended that the only allegation against this petitioner/accused No.15 was that her application filed before the Committee for granting land under KLR Act came to be inserted subsequent to the due date fixed by the Committee. Except that allegation there is no allegation 6 in respect of forging the documents for sanction, to gain profit or obtaining sanction of land in favour of her. Even on perusal of the statement of two witnesses recorded by the Investigation Officer, the Krishnamurthy and the Panchanama goes to show that they have only spoken about the seizure of the document in the Taluk Office, belongs to the Secretary/Tahsildhar- accused No.8. Even they speak about seizure of the document, they cannot speak about the contents of the document. Such being situation, question of framing charges against accused No.15 either under Sections 463, 464 or 465 of IPC does not arise. The person who had forged the document has not been made as an accused. Merely because this petitioner/accused No.15 is a beneficiary under the forged document, she cannot be punished. In support of his contention, learned counsel relied upon the decision of the Hon'ble Apex Court in the case of SHEILA SEBASTIAN vs. R.JAWAHARAJ AND 7 ANOTHER reported in (2018) 7 SCC 581 and prayed for allowing the revision petition and to discharge the petitioner from charges.
8. Per contra, learned Special Public Prosecutor, Sri. Venkatesh.S.Arabatti appearing for the respondent- Lokayuktha Police supported the order passed by the trial Court and contended that some documents which were forged and fabricated were sent to the FSL. The documents of the petitioner/accused No.15 were not sent to the FSL, that itself is not a ground for discharging accused No.15 from charges. Document Ex.D15 clearly shows the name of the petitioner/accused No.15 inserted subsequently after the due date fixed by the Committee under the KLR Act in order to obtain the benefit and to gain profit, which attracts Sections 463 & 464 of IPC. Therefore, the materials especially charge sheet, panchanama and the statement of Smt. Swarna, Dy.SP and the Krishnamurthy an independent witness have 8 categorically stated that the documents of the petitioner/accused No.15 marked as QD-17, which has been inserted subsequently after the due date and entry was almost last entry made in the Register, which was seized by the Investigation Officer. The Second Division Assistant produced the document as per the request, which clearly goes to show that these documents were subsequently inserted the name of the accused No.15 in the records in order to make a false claim. The charges under Sections 120B 408 & 409 of IPC cannot be framed against other accused persons who are public servants and thus charge under the P.C.Act. Therefore, until the accused No.15/petitioner faces trial and take defence, she is not entitled for discharge. Learned counsel further relies upon the judgment of this Court in Criminal Petition No.7744/2016 c/w Criminal Petition No.7927/2016 in the case of SRI. M.P. KUSHALAPPA & OTHERS vs. STATE OF KARNATAKA 9 & LOKAYUKTHA and prayed for dismissal of the petition.
9. Upon hearing the arguments of learned counsels for the parties and on perusal of the material placed on record, the only point which arises for consideration is "whether the order under revision, dismissing the application filed under Section 227 of Cr.P.C by the petitioner/accused No.15, calls for interference by this Court."
10. On perusal of the records, it is not in dispute that accused No.1 and other accused persons were in Committee constituted under the KLR Act for regularization of unauthorisedly cultivation of Government lands in N.R.Pura Taluk for which accused No.1 is said to be the Chairman, accused Nos.2 to 4 are members, accused Nos.5 to 9 are Secretaries and accused Nos.10 to 13 are all persons who are beneficiaries. While filing the complaint and referring the complaint to the Investigation Officer, the name of the accused No.15 was not mentioned in the complaint 10 but during the investigation, the Investigation Officer collected the material, which was unearthed. Accused Nos.14 to 23 are all beneficiaries and some of the applicants forged signature in order to obtain the sanction of the land in their favour. Of course other accused persons' applications were shown as thumb and signatures were forged and it was reported. Admittedly, the application of this petitioner/accused No.15 was not referred to the FSL for the purpose of obtaining any opinion. The only allegation shown in the charge sheet is that the present petitioner being the applicant filed her application subsequent to the due date and inserted her name to show that the application filed within time and the said application also produced by the learned counsel before this Court which was already seized by the Investigation Officer during the investigation. As per the KLR Act, the unauthorized applicants claiming regularization of the lands shall file application in Form No.50, which shall be filed within 11 19-09-1991 and Form No.53 shall be filed within 30-04- 1999 and as per Section 94(A) of the KLR Act, there was some criteria for filing the application that the applicants must be unauthorized occupier of the land from 14.4.1990 for atleast three years and file the application within six months from the date of commencement of Amendment Act, 1990. The applications were invited from the applicants and so many persons filed application before the Committee constituted under the KLR Act. Accused No.1 is said to be the Minister and Chairman of the said Committee. The applications were required to be filed within the time prescribed under Section 94(A)(4) of the KLR Act and it is alleged by the prosecution that applications filed for regularization of the land subsequently to the due date. However, it is not mentioned what is the last date and what is the date of application filed by the present petitioner/accused No.15 which was inserted in the Register. However, there were 32 applicants and 32 12 applications were filed on subsequent dates. All these documents were seized by the Investigation Officer under the panchanama dated 15.4.2013. It is not the case of the petitioner/accused No.15 that she was not an applicant or application filed within time. Even otherwise, petitioner is entitled to take a defence and agitate it before the trial Court during the trial and the main allegations against the accused persons is that the Chairman and Members were in collusion with these beneficiaries, Secretaries and staff of the Taluk Office and colluded together and obtained applications subsequent to the due date and some of the documents were forged documents for the purpose of cheating Government for granting land in their favour. The main allegation is that the petitioner/accused No.15 filed application before the Committee for granting land under KLR Act came to be inserted subsequent to the due date fixed by the committee, which falls under Sections 120B, 408 and other IPC offences. The learned 13 counsel for the petitioner seriously contended that the offence punishable under Sections 463, 464 & 465 of IPC cannot be charged against this petitioner/accused No.15 merely a beneficiary without the person who forged documents. Of course, the Hon'ble Apex Court has laid down the law that the beneficiary cannot be punished for the offence punishable under Section 464 of IPC and only maker of false document is liable for the forgery. But here in this case, allegation is not only forgery for the offences punishable under Sections 120B, 408, 409 of IPC along with the public servants to be tied. The petitioner being the beneficiary filed an application, it is alleged that subsequent to due date merely application filed earlier or after due date is to be considered only during the trial. At this stage, Court cannot jump to the conclusion that petitioner is not involved in forging the documents and on perusal of the provisions of Sections 463, 464 and 465 of IPC for the offence punishable under Section 120B for the criminal 14 conspiracy in collusion with other accused persons. This Court in a judgment of M.P.Kushalappa(supra) taken the view that the beneficiaries in whose favour lands were granted were ineligible and did not qualify for grant of lands. Here in this case, the Committee has already granted land to the petitioner/accused No.15, which is not in dispute though possession has not been taken by the petitioner in view of the filing this complaint against the Committee itself. The said execution kept to be in abeyance. Without the beneficiary, charge under Sections 120B, 408, 409 of IPC cannot be framed against the public servant under the P.C.Act. The Hon'ble Apex Court in a recent judgment in the case of State of Madhya Pradesh vs. Yogendra Singh Jadon & Anr. in CRIMINAL APPEAL NO.175 OF 2020 (ARISING OUT OF SLP (CRIMINAL) NO.172 OF 2017) has taken a similar view that the charge under Section 420 of IPC is not an isolated offence but it has to be read along with the offences 15 under the Act to which respondents may be liable with the aid of section 120B of IPC. The Hon'ble Apex Courts set aside the order quashing the charges by the High Court in the said case. In view of the allegations it attracts 120B of IPC and beneficiary also shall be tried with the other main accused for the offences punishable under Sections 408, 409 of IPC along with public servant under the P.C.Act. Therefore, the petitioner/accused No.15 cannot be discharged at this stage without trial. Therefore, the order under revision does not call for interference.
Accordingly, the revision petition is dismissed.
In view of the disposal of the petition,
I.A.No.1/2018 does not survive for consideration.
Hence, dismissed.
SD/-
JUDGE
SMJ