Karnataka High Court
Smt. Mangalamma vs The State Of Karnataka on 3 April, 2024
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.7113 OF 2019
BETWEEN:
1 . SMT. MANGALAMMA,
W/O LATE G. S. RAGHU,
AGED ABOUT 56 YEARS,
R/O GOPALPURA,
NONAVINAKERE,
POST - TIPTUR TALUK,
TIPTUR - 572 224.
2 . SMT. USHA
D/O LATE G. S. RAGHU,
AGED ABOUT 31 YEARS,
R/O GOPALPURA,
NONAVINAKERE,
P/O TIPTUR TALUK,
TIPTUR - 572 224.
3 . SRI. KODANDA RAMMAIYA
S/O K. THIMMAIAH,
AGED ABOUT 56 YEARS,
SECRETARY,
NELLIKERE VILLAGE PANCHAYATH,
P/O NONAVINKERE,
TIPTUR TALUK - 572 224.
...PETITIONERS
(BY SRI. P.P.HEGDE, SENIOR ADVOCATE FOR
SMT. H. PAVITHRA, ADVOCATE)
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AND:
1 . THE STATE OF KARNATAKA
REPRESENTED BY
NONAVINAKERE,
TIPTUR, TUMKUR - 572 224.
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE - 560 001.
2 . G. S. SHIVANNA
S/O LATE SINAPPA,
AGED ABOUT 55 YEARS,
R/O GOPALPURA,
NONAVINAKERE POST,
TIPTUR TALUK - 572 224.
...RESPONDENTS
(BY SMT. N. ANITHA GIRISH, HCGP FOR R1;
SRI. LAKSHMIKANTH K., ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C. PRAYING TO
1. QUASH THE IMPUGNED ORDER DATED 04.03.2013
REFERRING THE COMPLAINT TO THE POLICE FOR
INVESTIGATION U/S 156(3) OF CR.P.C. PASSED IN
P.C.R.NO.146/2013 BY THE COURT OF ADDITIONAL CIVIL
JUDGE AND J.M.F.C., TIPTUR.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 27.03.2024 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
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RESERVED FOR ORDERS ON: 27.03.2024
PRONOUNCED ON : 03.04.2024
ORDER
This petition is filed by the petitioners-accused Nos.1 to 3 under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C.No.460/2016 arising out of P.C.R. No.146/2013 on the file of the Additional Civil Judge and JMFC, Tiptur, for the offences punishable under Sections 167, 177, 420 read with 34 of IPC.
2. Heard the arguments of learned Senior counsel for the petitioners, learned High Court Government Pleader for respondent No.1-State and learned counsel for the respondent No.2.
3. The case of the respondent No.2-complainant before the trial Court is that the respondent filed private complaint under Section 200 of Cr.P.C. and the learned Magistrate referred the matter to the police under Section 156(3) of Cr.P.C. and in turn, the police registered the FIR in Crime No. 105/2011 and ultimately they have filed 'B' final report which was challenged by the respondent by filing 4 protest petition. Subsequently, the Magistrate recorded the sworn statement and took the cognizance against the petitioners and registered the criminal case for the above said offences, which is under challenge.
4. It is alleged by the complainant in his complaint that his name is G.S. Shivanna and his elder brother name is Raghu. His brother Raghu by taking the certificate of the complainant produced before the Army and secured Job in the Army. Subsequently, he has retired from the service and received the service benefits including pension in the name of the complainant by misrepresenting and impersonating himself as Shivanna-the complainant. Subsequently, accused Nos.1 and 2 also obtained the death certificate of Raghu from accused No.3 in the name of Shivanna even though he is alive and filed the same to the Army Officer and receiving his pension and very recently he came to know the act of his brother and his children. Therefore, filed the complaint which is under challenge.
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5. The learned Senior counsel for the petitioners has contended that the police already registered FIR against the brother of the complainant namely Raghu and after lodging the complaint, Raghu was died, therefore, an abated charge sheet has been filed which was accepted by the Magistrate and closed the proceedings. Therefore, one more case was filed against the petitioner which is not sustainable and further contended that the husband name of the petitioner No.1 and father of the petitioner No.2 were shown as Shivanna. The Aadhaar Card, voter ID were all reflects the name of the Shivanna. The daughter-petitioner No.2 cannot change her father name which is available in Government records and the husband of petitioner No.1 was admitted in the military hospital, Bangalore and he was died. The intimation was given to the Revenue Authorities as per the Birth and Death Registration Act, 2023. The name of the deceased was registered as Shivanna, therefore, as per the records, the accused No.3 issued a death certificate in the name of Shivanna. He has no authority to change the name which was produced to him 6 and further contended that the accused No.3 is a Government Official working as Village Accountant, a public servant. Therefore, without sanction, there is a bar for taking cognizance as per Section 197 of Cr.P.C., therefore on this ground, the criminal proceedings is not sustainable.
6. The learned Senior counsel also contended that even otherwise after filing the 'B' final report, the same was not rejected by the Magistrate but directly taken the cognizance by recording the sworn statement which is against the procedure. Therefore, prayed for quashing the criminal proceedings. In support of his contention, he has relied upon the judgment of this Court in the case of Dr.Ravikumar vs. K.M.C. Vasantha and Another reported in ILR 2018 KAR 1725. The learned counsel also taken the contention that the respondent not approached the police prior to lodging the complaint as per Section 154(1) and (3) of Cr.P.C. Thereby, the guidelines issued by the Hon'ble Supreme Court in the case of Priyanka Srivastava and Another vs. State of Uttar Pradesh 7 and Others reported in (2015) 6 SCC 287 has been violated, therefore, prayed for allowing the petition.
7. Per contra, learned counsel for the respondent seriously objected the petition and contended that the husband of accused No.1 falsely represented himself as Shivanna by impersonating the complainant and secured job in military service and retired from the service. Thereafter, he received pension in the name of the complainant and a criminal case was already registered. Due to the death of husband of petitioner No.1, charge was abated and thereafter, accused Nos.1 and 2 obtained the death certificate from accused No.3 in the name of the complainant even though he is alive and produced the same for receiving the pension of brother of the complainant. Even though the name of the husband of accused No.1 was Raghu, but she has knowing fully and intentionally to cheat the complainant and public authorities, shown husband name of Shivanna even though her husband name was Raghu. The daughter also continued her father name as 8 Shivanna even though he was Raghu. The accused No.3 in collusion with accused Nos.1 and 2 issued the death certificate of Raghu in the name of complainant-Shivanna. Therefore, they have created the document for the purpose of cheating and receiving the benefits. Therefore, issuing false certificate by accused No.3 is not discharging official duty, therefore, the protection under Section 197 of Cr.P.C. is not available. Therefore, cognizance taken is in accordance with law. Hence, prayed for dismissing the petition.
8. Having heard the arguments and perused the records, the case of the complainant is that his name is Shivanna, but his elder brother name is Raghu and without the knowledge of the complainant, the said Raghu used the name of the complainant by impersonating as Shivanna and secured job in military service. Thereafter, he was retired and received the pensions and subsequently, the complainant recently came to know about the said act of his brother, hence, he has filed complaint to the police. In the 9 meanwhile, his brother died and the police have filed abated charge sheet and subsequently, after the death of the Raghu, the accused Nos.1 and 2 being wife and daughter of the Raghu, in order to get the pension, they once again obtained the death certificate of Raghu from the accused No.3 in the name of Shivanna who is the complainant and alive. Though the death of Raghu was occurred in the military hospital Bengaluru, where the Raghu himself represented as Shivanna G S, he has created Aadhaar Card in the name of Shivanna. He has secured job in the name of Shivanna and died. Of course, the charges against him on the complaint filed by the respondent was already abated. However, the accused Nos.1 and 2 knows very well that their husband and father name is Raghu, but they obtained death certificate from accused No.3-Village Accountant as Shivanna who is the complainant and he is alive and subsequently they approached the Army Office and obtained the pension and in Aadhaar card and ID card of both the petitioners though reflected as Shivanna was husband and father of petitioner Nos.1 and 2. They have 10 very much having knowledge that the husband of petitioner No.1 and father of petitioner No.2 is Raghu but not Shivanna, but they have created all the documents, receiving all the benefits in the name of Shivanna which clearly attracts Section 420 of IPC and giving false document are incorrect document before the public servant is punishable under Section 167 of IPC and furnishing false information which attracts offence punishable under Section 177 of IPC.
9. It is pertinent to note that the offence under Sections 167 and 420 of IPC are cognizable offences, whereas Section 177 of IPC is non cognizable offence and filing the complaint before the Police is bar under Section 197 of Cr.P.C. Therefore, the complainant required to file complaint to the Magistrate under Section 2(d) read with Section 200 of Cr.P.C. as per Section 195 of Cr.P.C. which prohibits for taking cognizance by the Magistrate for the offences punishable under Sections 172 to 188 of IPC except on the complaint. Such being the case, the question of filing 11 complaint to the police by the complainant in order to follow the guidelines of the Hon'ble Supreme Court in the case of Priyanka Srivastava stated supra does not arises. As per the judgment of the Hon'ble Supreme Court in the case of Bandekar Brothers Private Limited and Another vs. Prasad Vassudev Keni and Others reported in (2020) 20 SCC 1 has held at paragraph No.48 of the judgment as under:
"48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) CrPC must be followed. Thus, in State of Karnataka v. Hemareddy [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , this Court referred to a judgment of the Madras High Court (V.V.L. Narasimhamurthy, In re [V.V.L. Narasimhamurthy v. State, 1953 SCC OnLine Mad 236 : AIR 1955 Mad 237] ) and approved its ratio as follows : (Hemareddy case [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , SCC pp. 190-91, paras 7-8) "7. ... In the third case, Somasundaram, J., has observed : (V.V.L. 12 Narasimhamurthy case [V.V.L. Narasimhamurthy v. State, 1953 SCC OnLine Mad 236 : AIR 1955 Mad 237] , SCC OnLine Mad) 'The main point on which Mr Jayarama Ayyar appearing for the petitioner seeks to quash this committal is that on the facts an offence under Section 193 IPC is disclosed for which the court cannot take cognizance without a complaint by the court as provided under Section 195(1)(b) of the Criminal Procedure Code. The first question which arises for consideration is whether on the facts mentioned in the complaint, an offence under Section 193 IPC is revealed. Section 193 reads as follows:
"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 13 seven years, and shall also be liable to fine."
"Fabrication of false evidence" is defined in Section 192. The relevant portion of it is:
"Whoever causes any circumstance to exist intending that such circumstance may appear in evidence in a judicial proceeding and that such circumstance 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 effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under 14 Section 193 IPC i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b) CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.
Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a) CrPC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.' 15
8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."
10. The learned Senior counsel for the petitioners further contended that the protection available to accused No.3 under Section 197 of Cr.P.C. It is no doubt that there is protection available to the public servant while discharging official duty. But here in this case, accused No.3 in collusion with accused Nos.1 and 2 issued the death certificate in the name of the complainant-Shivanna who is alive and it is nothing but creation of false document to help the accused Nos.1 and 2 for getting pension for the death of the Raghu who is the brother of the complainant. Therefore, issuing false certificate is not within the purview of the discharging the official duty. Therefore the 16 contention of learned Senior counsel cannot be acceptable and the sanction is required for taking action against accused No.3.
11. As regards to the contention of learned Senior counsel that accused No.2 cannot change her father name as it is already reflected in the school records and other documents. In this regard, the petitioner No.2 who is the educated daughter aged about 31 years, her father name is reflecting as G.S. Shivanna even though her father name is Raghu. Therefore, she cannot plead ignorance of law which is not excusable under the law . Therefore, she has to face the trial and take defence.
12. Considering the facts and circumstances of the case, it is not a fit case for quashing the criminal proceedings as the accused persons committed serious offence by getting service benefits from the Defence Department by impersonating the complainant- G.S.Shivanna.
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13. Accordingly, the petition filed by the petitioners- accused Nos.1 to 3 is hereby dismissed.
Sd/-
JUDGE GBB CT:SK