Karnataka High Court
Shivaraj Rachappa Belagal vs The State Of Karnataka on 29 May, 2017
Author: R.B Budihal
Bench: R.B Budihal.
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 29TH DAY OF MAY 2017
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL. R.B
CRIMINAL PETITION NO.100507/2017
BETWEEN:
Shri.Shivaraj Rachappa Belagal,
Age : 45 years, Occ : Colli,
R/a, Vakkalgiri Oni, Ward No.23,
Near Durgadevi Temple, Gadag District,
Gadag.
...Petitioner
(By Sri. G.S.Mot, Advocate)
AND:
1] The State of Karnataka,
Represented by its
Special Public Prosecutor,
High Court Building, Dharwad.
2] Chief Administrative Officer (CAO)
Hon'ble Principal District and Sessions Judge,
Bagalkot.
...Respondents
(By Sri. Raja Raghavendra Naik, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C seeking to set aside the order dated 20.02.2017
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for taking cognizance and order of issue of process,
passed by the Hon'ble Principal Civil Judge (Senior)
Judge and CJM, Bagalkot in CC.No.10/2017 for taking
cognizance against the petitioner for the offence
punishable under Section 193 of IPC.
This petition coming on for hearing, this day, the
court, made the following:
ORDER
This petition is filed by the petitioner/witness under Section 482 of Cr.P.C praying the Court to set aside the order dated 20.02.2017 for taking cognizance and order of issue of process passed by the Hon'ble Principal Civil Judge, Senior Division and CJM, Bagalkot in CC.No.10/2017 for taking cognizance against the petitioner for the offence punishable under Section 193 of IPC in the interest of justice and equity.
2. Brief facts of the case pleaded by the petitioner/witness that, a person by name Hussensab Yadwad filed police report on 22.11.2014 against :3: unknown person for the alleged offence under Section 380, 454, 457 of IPC and same was registered before Bagalkot Navanagar Police Station Crime No.111/2014 against accused Nos.1 and 2 by name Najeer and Svarup who are arrested on 06.03.2015 and while interrogation by the police the accused Nos.1 and 2 have confessed that they have sold the stolen property to the accused No.3 Gurunathsha Meharwade of Gadag. The respondent No.1/police had been to accused No.3 shop Dharmaraj Jewelers Gadag for interrogation, accused No.3 was not found in his shop. Hence respondent police have interrogated the CW-13 the petitioner herein who was employee of the accused No.3 and on interrogation the respondent police took the petitioner before the Court and his statement was recorded under Section 164(5) of Cr.P.C on 10.03.2015 and then respondent No.1 filed the charge sheet for the alleged offence under Section 379 and 413 of IPC on the basis of which CC.No.70/2015 came to be registered :4: and case was committed to Principal Sessions Judge, Bagalkot and registered in Sessions Case No.29/2016 then the matter was posted for recording of evidence and the learned Sessions Judge was pleased to record the evidence of PW-1 to PW-10 and documents Ex.P-1 to Ex.P-10 were got marked. The further averments in the petition that on 04.07.2017 prosecution examined the petitioner/witness as PW-7(CW-13) before learned Sessions Judge in the said Sessions Case No.29/2016 and the petitioner/PW-7 turned hostile and his deposition copies also produced as per Annexure-C. The Public Prosecutor had filed application under Section 193 read with Section 340 of IPC as per Annexure-D and same was allowed on 04.07.2017 without recording finding of preliminary inquiry for forming of opinion by the learned Sessions Judge who directed the respondent No.2/Chief Administrative Officer to file the complaint and in view of the same a complaint against the petitioner came to be registered :5: on 20.02.2017. The petitioner/witness herein challenged the legality and correctness of initiating criminal proceedings on the grounds No.7 to 12.
3. Heard the arguments of the learned counsel appearing for the petitioner/witness (PW-7) so also the arguments of the learned High Court Government Pleader for the respondent State.
4. Learned counsel for the petitioner/witness during the course of arguments submitted that the order by the learned Sessions Judge giving a direction for initiation of the criminal case against the petitioner/PW-7 is not in accordance with the mandatory provisions of Sections 340 and Section 195 of Cr.P.C. He made the submission that unless and until all the witnesses in the Sessions Case including the Investigating Officer are examined, the learned Sessions Judge is not in a better position to take any decision only on the basis of the evidence of PW-7. It is :6: also his contention that no preliminary enquiry was conducted before initiating and coming to the conclusion that there is case of perjury committed by the petitioner/witness. The learned counsel further made the submission that, even while delivering the judgement in the case, the learned Sessions Judge is authorized and entitled to make the observation with regard to the alleged perjury or otherwise of the case and he can order for initiation of said complaint as against the petitioner/witness. It is also his contention that, when it is case of the prosecution that the witness who gave the evidence which is contrary to his statement recorded under Section 164(5) of Cr.P.C, the proceedings cannot be initiated unless and until it is considered and held that his previous statement under Section 164(5) of Cr.P.C. is a false statement. Hence he submitted that in view of all these grounds, the order of the learned Sessions Judge for initiating the complaint directly without making any sort of enquiry in the :7: matter is not sustainable in law. Hence, he submitted to allow the petition. In support of his contention, the learned counsel appearing for the petitioner relied upon the following decisions ;
[1] Amarsang Nathaji V. Hardik Harshadbhai Patel, reported in 2017 CRI.L.J 758-Para No.10. [2] Thomman V. IInd Addl. Sessions Judge, Ernakulam reported in 1994 CRI.L.J.48 of the Hon'ble High Court of Kerala.
[3] Iboton Singh v.Yaima Singh (T.N.R.Tirumalpad J.C) reported in AIR 1963 MANIPUR 21 (V 50 C 6) Decision of the Hon'ble Delhi High Court referred in the case of Sunder Singh Vs. State of Delhi on July 01, 1996.
[4] R.Shaji V.State of Kerala reported in AIR 2013 SUPREME COURT 651.
[5] Unreported order in W.P.102611/2016 passed by this Court in the case of Smt.Anusuya vs. The Special Land Acquisition Officer and others.
[6] Judgment of the Hon'ble Apex Court reported in LAWS 1959(SC) 10 rendered in the case of B.K.Paul vs. State of Assam.
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5. Per contra, learned HCGP during the course of his arguments has submitted that the document, which was exhibited as P-7 i.e., statement of witness, which was recorded under Section 164(5) of Cr.P.C. before the Magistrate Court if looked into, the witness has stated about the commission of such offence by the accused persons, but when the said witness, who gave such evidence, was examined on oath before the Court during the course of trial, he completely say go-bye to his earlier statement and he given the false evidence before the Court. Hence, the learned Sessions Judge is justified in making such observation and giving authorisation to the Chief Administrative Officer of the said Court to file the complaint as against the said witness i.e., petitioner herein. He has further submitted that looking to the oral evidence given by the present petitioner, it is quite contrary to his statement recorded before the Magistrate Court and hence, it is clear case of :9: perjury as per Section 193 of IPC. There is nothing wrong by the learned Sessions Judge in taking recourse of initiation of criminal proceedings against the petitioner/witness and hence, there is no merit in the petition and the impugned order does not call for any interference by this Court.
6. I have perused the grounds urged in the petition, the order/direction given by the learned Sessions Judge giving authorisation to the Chief Administrative Officer of the District Court to file such complaint and registration of the complaint against the petitioner, so also, perused the decisions and the principles enunciated in the said decisions, which are relied upon by the learned counsel for the petitioner, which are referred above and I have also considered the oral submissions made by the learned counsel on both sides at the bar.
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7. The materials placed on record show that sofar as the alleged offence as against the petitioner is concerned, the petitioner was a witness in a criminal case and it is the case of the prosecution that said witness has given the statement under Section 164(5) Cr.P.C. before the Magistrate Court. The further case is that when he was examined before the Court as a prosecution witness, he turned hostile and not supported the case of the prosecution, because of that reason immediately, the learned Sessions Judge taken a decision in the matter to initiate the criminal proceedings against the petitioner/witness. Looking to the provisions of Section 340 and 195 of Cr.P.C. procedure is contemplated to be followed in such cases strictly before proceeding to initiate criminal action against the said persons, against whom said proceedings are to be initiated.
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8. Looking to the materials placed on record and as it is rightly submitted by the learned counsel for the petitioner, the learned Sessions Judge, who was supposed to conduct preliminary enquiry and record his finding as to why he has come to such conclusion i.e., ordering criminal proceedings against the petitioner/witness is not at all done in this case.
9. Apart from that, it is only after looking to the answers given by this witness, who is petitioner herein, during the cross-examination by the advocate, the learned Sessions Judge proceeded to take such action against the petitioner herein. Unless and until the evidence of other witnesses and more particularly, the Police witness and the Investigating Officer are recorded and completed in the case, the matter would not ripe for the learned Sessions Judge to initiate such criminal case as against the said witness.
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10. Even looking to the provision Section 344 of Cr.P.C., learned Sessions Judge or any other Magistrates dealing with the criminal cases, are entitled and authorised while delivering the judgment that if there is any such false evidence amounting to perjury, they can order for registration of miscellaneous case making preliminary enquiry and in the preliminary enquiry if there is material, then to proceed against such persons in such criminal proceedings. Therefore, such right cannot be taken away at this stage. The law itself permits that said action can be taken while delivering the judgment by invoking Section 344 of Cr.P.C. Therefore, considering all these material aspects and also the legal proposition laid down by the Hon'ble High Courts and Hon'ble Apex Court in the decisions, which are referred above, the petitioner has made out a case to allow the petition. Hence, petition is allowed and the order dated 20.02.2017 taking cognizance and order of issue of process passed by the : 13 : Principal Senior Civil Judge and CJM, Bagalkot, in CC.No.10/2017 for taking cognizance against the petitioner for the offence punishable under Section 193 of IPC is hereby set-aside.
However, liberty is reserved to the said Court to proceed against the petitioner/witness while delivering the judgment by invoking Section 344 of Cr.P.C., if any such perjury is found to have been committed.
Sd/-
JUDGE CKK/BSR