Karnataka High Court
Gurunathagouda S/O Ninganagouda ... vs The State Of Karnataka on 1 March, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
R
DHARWAD BENCH
DATED THIS THE 01ST DAY OF MARCH, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.100046/2019
BETWEEN:
GURUNATHAGOUDA S/O NINGANAGOUDA GOUDAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: GOVANAKOPPA, TQ & DIST: DHARWAD.
... APPELLANT
(BY SRI. M.B. NARAGUND, SR. COUSNEL FOR SRI. DEEPAK S
SHETTY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
2. SRI.VINAY KULKARNI
AGE: 50 YEARS,
EX-MINISTER FOR MINES AND GEOLOGOY,
STATE OF KARNATAKA
BARAKOTRI, SHIVAGIRI,
DHARWAD-580001.
3. SRI.TULAJAPPA SULFI
PRESENTLY WORKING AS
DEPUTY SUPERINTENDENT OF POLICE,
IN THE OFFICE OF INSPECTOR GENERAL,
BELAGAVI-590001.
4. B.P. CHANDRASHEKAR
DY.S.P. DHARWAD RURAL
2
DHARWAD,
PRESENTLY WORKING AT
BENGLAURU DGP OFFICE,
NRUPATHUNGA ROAD-560001.
5. BASAVARAJ SHIVVAPPA MUTTAGI
S/O SHIVAPPA MUTTAGI,
AGED ABOUT: 35 YEARS,
OCC: REAL ESTATE BUSINESS,
R/O MANAGUNDI VILLAGE,
TQ: DHARWAD-580001.
6. VIKRAM UDAYKUMAR BALLARI
S/O UDAYKUMR BALLARI,
AGED ABOUT: 26 YEARS,
OCC: LAUNDRY SHOP,
R/O: 6TH CROSS, MARATHA COLONY,
DHARWAD-580001.
7. KIRTIKUMAR BASAVARAJ KURATTI
S/O BASAVARAJ KURATTI,
AGED ABOUT: 25 YEARS,
OCC: SWEET MART BUSINESS,
R/O: ITIGATTI VILLAGE,
TQ: DHARWAD-580001.
8. SANDEEP ALIAS SANDY SOMASHEKAR SAVADATTI
S/O SOMASHEKAR SAVADATTI,
AGED ABOUT: 28 YEARS,
OCC: DRIVER, R/O: BEHIND GANAPATI TEMPLE,
MARATHA COLONY, DHARWAD,
TQ: DHARWAD-58001
9. VINAYAK BASAVARAJ KATAGI
S/O BASAVARAJ KATAGI,
AGED ABOUT: 34 YEARS,
OCC: REAL ESTATE BUSINESS,
R/O: BHUSAPPA CHOWK,
KURUBAR ONI, DHARWAD-580001.
10. MAHABALESHWAR ALIAS MUDUKA
MALLAPPA HONGAL
3
S/O MALLAPPA HONGAL,
AGED ABOUT: 29 YEARS,
OCC: TILEX BUSINESS,
R/O: GOVANAKOPPA VILLAGE,
DHARWAD-580001.
... RESPONDENTS
(BY SRI. A.S. PONNANNA, ADDL. AG AND SRI. PRAVEEN K
UPPAR, HCGP FOR R1)
(SRI. RAJA VENKATAPPA NAIK, ADV. FOR R5 TO R10)
THIS CRIMINAL APPEAL IS FILED U/S 341 OF CR.P.C.
SEEKING TO SET ASIDE THE ORDER DATED 09.01.2019,
PASSED BY THE COURT OF IV-ADDL. DIST. & SESSIONS
JUDGE, DHARWAD IN S.C.NO.50/2017 BY ALLOWING THE
APPLICATION FILED BY THE APPELLANT U/S 195-A OF CR.P.C.
AND DIRECT THE COURT OF IV-ADDL. DIST. & SESSIONS
JUDGE, DHARWAD TO HOLD THE ENQUIRY ON THE
APPLICATION FILED UNDER SECTION 195-A OF THE CR.P.C. BY
THE APPELLANT IN ACCORDANCE WITH LAW.
RESERVED FO R JUDGMENT ON : 14.02.2019.
JUDGMENT PRONOUNCED ON : 01.03.2019.
THIS APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, TH E
COURT DELIVERED TH E FOLLOWING:
JUDGMENT
This appeal is filed under Section 341 of Cr.P.C. challenging the order passed by the IV Addl. District and Sessions Judge, Dharwad in SC No.50/2017 dated 9.1.2019 on the application filed by CW-19 through 4 prosecution under Section 195-A of Cr.P.C. rejecting the same and praying this Court to set-aside the order and direct the Court of IV Addl. District and Sessions Judge, Dharwad to hold the enquiry on the said application and issue any other order or direction which this Court deems fit in the circumstances of the case.
2. Brief facts of the case are, in nutshell, charge sheet is filed against respondent Nos.5 to 10 for the offences punishable under Sections 143, 147, 148 302, 120-B and 201 read with Section 149 of IPC alleging that they have committed the murder of one Yogeshgouda Goudar and charges has been framed and trial is commenced. An application is filed under Section 195-A of Cr.P.C. requesting the Court below to register the complaint and FIR and refer to the Magistrate for investigation against the police officers i.e. Tulajappa Sulfi Dy.S.P., IG Office, Belagavi and Chandrashekhar, Dy.S.P. Dharwad and Ex-Minister, 5 Vinay Kulkarni, who threatened the witnesses to give evidence favouring the accused and those persons have been arrayed as respondents in this appeal as Respondent Nos.2 to 4 and after hearing, the said application came to be dismissed vide order dated 9.1.2019. Being aggrieved by the rejection of the said application, present appeal is filed.
3. The appellant who is CW-19 is contended that respondent No.2 who was Ex-MLA from Dharwad Rural Constituency and also Ex-Minister of Mines and Geology, Government of Karnataka and he was also the in-charge Minister of Dharwad District. The deceased Yogeshgouda Goudar and Mr. Vinay Kulkarni were arch political rivals and their rivalry escalated to personal level and there was an incident of animosity and a letter was received mentioning that name of respondent No.2 that he was murdered the brother of the deceased Yogeshgouda Goudar just two days prior to committing 6 the murder of Yogeshgouda Goudar and the deceased neglected the same and further it is contended that the real culprit has been shielded by the police and sham investigation was conducted and respondent Nos.3 and 4 were hand in glove with respondent No.2 and made all efforts to tamper the prosecution witnesses in order to help the accused persons and so also several representations are made against these persons to the Government, Home Minister, Chief Justice of Karnataka High Court and higher officers of the police department including SP, DG and IGP and no decision has been taken and hence, the writ petition is filed before this Court and further contended that the earlier application is filed before the very same Court under Section 309 of Cr.P.C. stating that no fair investigation was conducted in the case and also regarding threatening of the witnesses, but the Court has rejected the said application without considering the affidavit filed by the 7 applicant. Therefore, present appellant has constrained to file an application under Section 195-A of Cr.P.C. and the accused persons used come to Court with huge number of his followers which creating fearful environment in the Court premises and the witness who comes to the Court cannot give the evidence in the case in such fearful environment. The counsel for the appellant has orally raised the complaint before the Sessions Court, but the Sessions Court has not taken any action, hence, the appellant has constrained to file a memo along with photograph and video with the sealed cover. But very surprisingly, the Court has not made any order or not taken any action on the said memo filed by the appellant and if this matter proceeded by taking evidence of witnesses, it will violate the right of fair investigation and enquiry granted to the appellant under Article 21 of the Constitution of India. The other contention is that the Court has also 8 completed evidence of 16 witnesses without making any order on application and without any other alternate, the counsel for the appellant has filed a memo seeking order to pass any order on the application and ultimately the application was rejected without considering the facts and legal position submitted by the appellant and considering the objections filed by the accused.
4. In the grounds of appeal, the appellant has contended that the very order of rejection of the application is wholly illegal and not sustainable in law and the Court below has committed an error in passing the order of rejection of application merely on the ground that the other view is also possible by believing the words of accused only, which is wholly illegal and not sustainable in law. The other contention is that the Court below has committed an error in not considering the fact and legal position that Section 195 9 of Cr.P.C. bars the cognizance of certain offences by Magistrates, like the contempt of lawful authority of public servants, offences against public justice and offences relating to documents given in evidence. These offences may be taken cognizance of, only on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; or on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. Section 340 of Cr.P.C. provides a mechanism to initiate for offences under those Sections set-out in Section 195 of Cr.P.C. Extracting the Section 195 of Cr.P.C., the counsel contends that when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court and referring the Section 195-A of Cr.P.C. or referring Sections 193 to 196 of IPC, 10 contends that when the application is also filed under Section 195(1) b(1) of any offence punishable under any of the following Sections of IPC and also Sections 199, 200, 205 to 201 when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, the Court has to keep in mind enacting the law for protection given to the witnesses and the very object of legislation and also bringing amendment to Section 195-A of Cr.P.C. and also Section 195-A of IPC. The trial Court ought to have considered the same in a legal perspective and did not apply its mind while rejecting the application. The Court below failed to take note of the fact that respondent Nos.2 to 4 were indulged in threatening the witnesses and only erroneous approach is made that the appellant has already approached the High Court seeking order of transfer of the present investigation to the CBI and contended that once writ petition was reserved for 11 judgment on 30.01.2018 and same was released from stage of order in August 2018 and the said writ petition is pending before this Court and the Court below has failed to take note of the threat given by respondent Nos.2 to 4 and has committed an error in not considering the facts of the legal position of both Sections 340 and 195 of Cr.P.C. and the learned Sessions Judge has committed an error in not considering the legal position that no Court shall take the cognizance for the offence punishable Sections 193 to 196 except on the complaint in writing of that Court. Therefore, by reading of Section 340 read with Section 195 of Cr.P.C. clearly shows the written complaint shall be filed in the Court where proceeding taking place and the said Court after receipt of the said complaint, record a finding to that effect and make a complaint thereof in writing and send it to a Magistrate of the first class having jurisdiction. The learned Sessions Judge has 12 also committed an error in not considering the legal position that the appellant has lost his brother who is brutally murdered in the day light. Victims rights are legal rights afforded to victims of crime. The learned Sessions Judge has also committed an error in not considering the legal position that in Hema Vs. State, the Hon'ble Apex Court has held that it is settled law that not only fair trial, but fair investigation is also part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Investigation must be fair, transparent and judicious and it is the immediate requirement of rule of law. It is further contended that the Hon'ble Apex Court in the judgment of Babubhai Vs. State of Gujarat and Others, 2010 (12) SCC 254 held that Investigating Officer cannot be permitted to conduct an investigation in a tainted and biased manner. The counsel also relied upon the judgment of the Hon'ble Apex Court in the case of 13 Samaj Parivartan Samudaya and Others Vs. State of Karnataka and others, (2012) 7 SCC 407 , wherein it has held that the basic purpose of an investigation is to bring out the truth by conducting fair and proper investigation, and further contended that in the present case, Dy. SP rank police officer one Tulajappa Sulfi was involved and threatened the appellant with dire consequences and Ex-Minister also threatened not only the appellant and also an advocate who assisted in getting the document.
5. Referring the several judgments, it is contended that in criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibility and committedly. Referring the several judgments of the Hon'ble Apex Court contends that the accused rights and fair trial as follows 'Speedy trial' and 14 'fair trail' to a person accused of a crime are integral part of Article 21 of the Constitution of India. The learned Sessions Judge has committed an error in not considering the facts that in the Court premises, it is very fearful environment has been created by the accused by carrying their 30-40 followers and standing near just outside the Court by staring at the witnesses, which created fearful environment which resulted in no witness will come to the Court with safety and secure feeling to give the evidence. The photographs of the same and video CD produced in the sealed/closed covers are produced. Hence, contended that the application is not considered in right perspective and prayed this Court to set-aside the impugned order.
6. In pursuance of this appeal, Addl. Advocate General appeared on behalf of the State. Though notices are dispensed with against other respondents, subsequently, respondent Nos.5 to 10 appeared through 15 counsel and contested the matter and notice against respondent Nos. 2 to 4 is dispensed with.
7. Heard the arguments of the appellants. The appellants counsel in his arguments he contends that there is a threat by the respondent Nos.2 to 4 and insisted to give evidence in favour of the accused and in this regard, audio conversation of respondent No.2 and advocate are produced and the complaint is given on 29.11.2017, an affidavit is also filed, so also memo filed and counsel contends in his arguments that the judgment of the Apex Court reported in 1984 SCC 533 in Sunilkumar's case at para-9 had discussed with regard to fair trial and the Court below while passing the order not assigned proper reason and erroneously without appreciating the application in a right perspective rejected the application filed by the appellant.
16
8. The learned Addl. AG appearing for respondent-State in his arguments he contends that the present appeal is filed under Section 341 of Cr.P.C. and application is filed under Section195-A of Cr.P.C. and the offence is punishable under Section 195A of IPC and punishment is provided for seven years with fine or with both and the offence is cognizable. Hence, the appellant cannot invoke Section 341 of Cr.P.C. to file this appeal, since, the same is not ordered under Section 340 and also 341 of Cr.P.C. No appeal or revision lies against the order as well as the appeal is not maintainable since the order is against interlocutory application and hence, the appeal cannot be entertained and same deserves to be rejected. Section 340 is only for under Section 195(1)(b), hence, prayed this Court that the application under Section 195-A of Cr.P.C. is only with an intention to protract the trial proceedings and an attempt is made by filing an application under Section 309 of Cr.P.C. 17 and same came to be rejected. This application is also replica of the earlier application filed under Section 309 of Cr.P.C., hence, this appeal is not maintainable.
9. Counsel for respondent Nos.5 to 10-accused persons in his arguments he vehemently contends that the very appeal is not maintainable and in support of his contentions he relied upon the judgment of the Hon'be Supreme Court in the case of K. Sudhakaran Vs. State of Kerala and contended that the Hon'ble Apex Court in this judgment has held that a bare reading of the provisions makes it clear that an appeal under Section 341 can be filed by any person on whose application, the Court other than the High Court refused to make a complaint under sub-section (1) or sub-section (2) of Section 340, hence, the appeal is not maintainable and further contended that a person who had not filed an application as required under Section 340 of the 18 Code could file an appeal under Section 341 of the Code.
10. The counsel also relied upon the judgment of the Madras High Court in the case of S. Soundarapandian Vs. Ponram and Others, decided on 19.10.2006 and contends that filing a complaint under Section 195(1)(b) read with Section 340 of Cr.P.C. and rejection of the same in criminal appeal under Section 341, an appeal under Section 341(1) lies. The counsel also relied upon the judgment of the Madhya Pradesh High Court in the case of Deep Narayan Singh Vs. State of Madhya Pradesh decided on 29.09.1994, wherein the Madhya Pradesh High Court held that an appeal under Section 341 could only be filed against the order passed under Section 340 of Cr.P.C. and order under Section 344 is not appealable.
19
11. The counsel also relied upon the judgment of the Hon'ble Apex Court in the case of M. Narayandas Vs. State of Karnataka and others and contended that in this judgment, the Hon'ble Apex Court has held that they are in the complete agreement with the same. Sections 195 and 340 do not control or circumscribe the power of the police to investigate under the Cr.P.C. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However, that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided that procedure laid down in Section 340 of Cr.P.C. is followed. Thus, no right of the respondents, much less the right to file an appeal under Section 341 is affected.
12. The counsel also relied upon another judgment of the Apex Court in the case of Pritish Vs. 20 State of Maharashtra and Others, wherein it is held that Section 340 consists of four sub-sections. Section 340 of the Code is not deciding the guilt or innocence of the party against whom the proceedings are to be taken before the Magistrate. Section 341 confers a power on the party on whose application the Court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the Court to which the former Court is subordinate.
13. The counsel also relied upon the judgment of the High Court of Andhra Pradesh in the case of Rebaka Vara Prasad Vs. State of Andhra Pradesh wherein the petitioners sought quashing the proceedings under Section 195-A, 506 and 34 of IPC and the Andhra Pradesh High Court has held that it is not in dispute that Section195A of IPC is a cognizable offence as per the schedule of Cr.P.C. Section 195-A of 21 Cr.P.C. would indicate that the 'aggrieved party has to file a complaint before the Magistrate', Section 195A of Cr.P.C. reads that "a witness or any other person may file a complaint in relation to an offence", under Section 195A of IPC. The word 'complaint' as mentioned under Section 195A of Cr.P.C. cannot be construed in a narrow sense so as to not to include a police report. The very fact that under Section 195A of IPC, the offence is shown as cognizable offence and that provision has to be read with Section 156 of Cr.P.C. Section 156 of Cr.P.C. confers on the police unrestricted power to investigate a cognizable offence without the order of Magistrate or without a formal first information report. Then the police would not have jurisdiction to investigate the case, but when the statute prescribes a penal provision as cognizable offence, it confers powers on the police to investigate a case, that power cannot be curtailed by 22 narrow interpretation of the expression 'complaint' with reference to Section 2(d) of Cr.P.C.
14. The counsel also relied upon the judgment of the Calcutta High Court, in the case of Ganesh Adhikari Vs. State of West Bengal and Another and contends that under the provisions of Section 195A to file a complaint with the learned Magistrate and no complaint is filed to the Investigating Officer and the Calcutta High Court held that criminal proceedings against the petitioner held to be misconceived and hence, dismissed the petition.
15. The counsel also relied upon another judgment of High Court of Calcutta in the case of Namita Mahanta Sarkar Vs. The State of West Bengal and Ors. and contends that undisputedly the Investigating Officer has received an information in the present case from witness where upon the offence was 23 registered by him under Section 195A of IPC and Challan has been filed before the Court who has taken the cognizance. Once Section 195 of Cr.P.C. uses the word "complaint" which is defined under Section 2(d), then it may be understood, the complaint must be oral or in writing to a Magistrate, referring the judgment of the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajanlal, wherein the Apex Court has observed that Article 226 or inherent power under Section 482 of Cr.P.C. should be exercised very sparingly and further observed that where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act under which a criminal proceeding is instituted to the Institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party and further observed that offence under Section 195A of IPC 24 by police is expressly barred, since the procedure as specified under Section 195(1) (b) of Cr.P.C. has not been followed, and hence, quashed the proceedings.
16. The counsel also relied upon the judgment of Delhi High Cour t in Rahul Y ad av vs. S tate and another, in connection with section 195A of IPC that the same is a cognizable offence and section 195A mandates that only a complaint could be filed for the said offence. The counsel also brought to the notice of this Court paragraph 9 and also paragraph No.12 with regard to the scope of section 2(d) and section 195A of IPC which has been explained and in para 12 it is stated that section 195A was added by way of Act of 2009. No corresponding amendment was brought in section 195 of Cr.P.C. which bars a Court from taking cognizance except on the complaint in writing as prescribed under the 25 provision. Section 195A of Cr.P.C. provides an added remedy of filing a complaint in relation to offence punishable under section 195A of IPC and it does not declare section 195A of IPC as non cognizable. Section 2(c) of Cr.P.C. defines a 'cognizable offence', to mean an offence for which and 'cognizable case' to mean a case in which a police officer may in accordance with first schedule or under any other law for the time being in force arrest without warrant. Further brought to the notice of this Court paragraph No.13 that section 154 of Cr.P.C. mandates an officer in- charge of a police station to record the information in writing relating to the commission of a cognizable offence. Thus by addition of section 195A of Cr.P.C. to the Code, the offence punishable under section 195A of IPC cannot be held to be non-cognizable and hence he contends that a separate complaint has to be registered 26 against the persons who come within the purview of section 195A of IPC.
17. The counsel in support of his contention also he relied upon the judgment of High Court of Kerala in Nicholas Joseph vs. the S tate of Kerala and by relying upon paragraph No.4 of the said judgment he contends section 195A of IPC is attracted only when the victim is threatened with intent to cause that he should give false evidence. The prosecution has no case that the petitioner, or for that matter the other accused, threatened the 2 n d respondent to compel him to give false evidence in any case.
18. The counsel also relied upon the special law of electronic evidence in section 65B of the Indian Evidence Act, 1872 and placing reliance on the same, he brought to the notice of this Court the judgment of S tate (NCT of Delhi) vs. Navajot 27 Sandhu alias Af san Guru and also other judgment of Anvar P.V. vs. P.K.Basheer and others in respect of section 65B of the Indian Evidence Act.
19. The counsel also relied upon the judgment of the Apex Court reported in 2015 AIR SC 180 in Anvar P.V. vs. P.K.Bashir and others with regard to section 65A of the Indian Evidence Act and brought to the notice of this Court paragraphs No.7, 8, 10 and 11 in so far as the admissibility of electronic records and particularly paragraph No.13 and paragraphs No.16, 17, 18, 19 and 20, so also 22 and 23 and referring the said judgment he contends that though the Apex Court has given much importance to section 65B with regard to the certificate and in the absence of certificate and evidentiary value for the material relied upon, the Court cannot entertain the same 28 unless compliance of section 65B of the Evidence Act.
20. The counsel also relied upon the j-
udgment of the Supreme Court reported in AIR 2016 SC 5389 in Harpal Singh @ Chhota vs. S tate of Punjab in respect of section 65B(2) and 65B(4) of the Indian Evidence Act and brought to the notice of this Court paragraphs No.11 at page No.1266 and contends that the Apex Court held that, as apparently the prosecution has relied upon the secondary evidence in the form of printed copy of the details, even assuming that the mandate of section 65B(2) had been complied with, in absence of a certificate under section 65B(4), the same has to be held inadmissible in evidence. Further brought to the notice of this Court that in Anvar P.V. and P.K.Basheer case also, the Apex Court held, in no uncertain terms 29 that the evidence relating to electronic record being a special provision, the general law on secondary evidence under section 63 read with section 65 of the Act would have to yield thereto. It has been propounded that any electronic record in the form of secondary evidence cannot be admitted in evidence unless the requirements of Section 65B are satisfied. The Apex Court further held that, the said conclusion is inevitable in view of the exposition of law pertaining to sections 65A and 65B of the Act.
21. The counsel also relied upon the judgment of the Apex Court in Sonu @ Amar vs. S tate of Haryana, repor ted in AIR 2017 SC 3441. In this judgment also the Apex Court held that electronic records play a crucial role in criminal investigations and prosecutions, the contents of electronic records may be proved in accordance 30 with the provisions of section 65B of the Evidence Act, an electronic record is inadmissible in evidence without the certification as provided therein. Further held that, scope of section 294 of Cr.P.C. which provides a procedure for filing documents in a Court by the prosecution or the accused. The documents have to be included in a list and the other side shall be given an opportunity to admit or deny the genuineness of each document, in case genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the evidence Act and also he brought to the notice of this Court that in the judgment Apex Court also discussed Anvar P.V. vs. P.K.Basheer case.
22. The counsel also relied upon the Supreme Court judgment reported in AIR 1963 SC 786 in Udit Nar ain Singh Malpaharia vs. Additional 31 Member Board of Revenue, Bihar and contend that the Apex Court in the judgment held with regard to who are the necessary and proper parties in a proceeding. He contends that in the judgment the Apex Court held that law on the subject is well settled. It is enough to state the principle, a necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.
23. The counsel referring the judgments referred above, he vehemently contended that at the first instance the petitioner in order to obtain an order on behalf of respondents No.5 to 10 made an attempt to take the order and the respondents No.5 to 10 came on record and when 32 it has come to the notice of the respondents that notice against respondents No.5 to 10 is dispensed with at the instance of the petitioner and further contended that the allegation is made against respondents No.2 to 4 and they are not the parties before the trial Court and allegation is made against them, when such being the case, the question of passing an order against them in their absence is not permissible and contends that the judgment which is referred above is aptly applicable to the case on hand and hence contends that the appeal is not maintainable and this Court cannot grant any relief in favour of the appellant in view of the principles laid down in the judgment referred supra.
24. Having heard the arguments of the appellant's counsel, and respective respondents 33 counsel and on perusal of the material on record, the points arise before this Court are that:
(i) Whether the appeal is
maintainable as against the order
passed by the Court below on the
application filed under section 195A of Cr.P.C.?
(ii) Whether the appellant has
made out a ground to set aside the
order dated 9.1.2019 passed in
S.C.No.50/2019 on the application filed under section 195A of Cr.P.C. in directing the Court to hold an enquiry on the application filed under section 195A of Cr.P.C.?
34POINT No.1
25. The present appeal is filed as against the rejection of the application filed under Section 195-A of Cr.P.C. The appellant has preferred this appeal under Section 341 of Cr.P.C. challenging the order impugned rejection of the application. The respondent-Government has raised objection that the appeal is not maintainable against the order impugned.
26. The learned Addl. Advocate General in his arguments, he vehemently contends that the application is filed before the Court below under Section 195-A of Cr.P.C. that there was a threat to the witnesses and further contended that the offence to be invoked against the persons who caused threat is an offence under Section 195-A of IPC and it provides the punishment which may extend to 7 years or with fine or with both and the offence is also cognizable and hence, Section 341 cannot be invoked to file an appeal, since Section 35 340 not referred the offence under Section 195-A of IPC and hence, he contends that no appeal or revision lies against the order and contends that the appeal is not maintainable and it amounts to interlocutory application.
27. The counsel appearing for the appellant in his arguments he vehemently contends that the application is filed under Section 195-A of Cr.P.C. and the said proviso is recently amended enabling the witnesses or any other persons to file a complaint in relation to an offence under Section195-A of IPC and the counsel also brought to my notice the very proviso of Section 340 of Cr.P.C. and contends that when the application was made to the Court and any Court is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause(b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a 36 proceeding in that Court, or as the case may be, the Court may after such preliminary inquiry, if any, as it thinks necessary, send it to a Magistrate of the first class having jurisdiction and in the case on hand also, the application is filed making allegation of threat to the witnesses and also he contends that though Section 195-A has not been inserted in the proviso of Section 340 of Cr.P.C., on very reading of the proviso of Section 341, it is clear that if any person on whose application any Court other than a High Court has refused to make a complaint under sub-section(1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. Hence, this Court can entertain the appeal since the application which has been filed by the appellant was rejected by 37 the Court below and it has finally decided and hence, he contends that the appeal lies before this Court.
28. The counsel appearing for respondent Nos.5 to 10 also relied upon several judgments with regard to Section 341 of Cr.P.C. and contends that a bare reading of the provisions make it clear that an appeal under Section 341 of Cr.P.C. can be filed by any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of Section 340. He relied upon the judgment of the Apex Court in the case of K. Sudhakaran(supra) and contends that no such application is filed under Section 340 and hence, the appeal is not maintainable.
29. The counsel also relied upon the judgment of the Madras High Court in the case of Soundarapandian (supra) and brought to my notice that under Section 340 of Cr.P.C., if an opportunity is given to the accused has 38 to be heard during the course of preliminary inquiry, such procedure adopted by the Magistrate cannot be termed as illegal as there is no such embargo and opportunity has to be heard to the accused and further held that the order under Section 340 is appealable whereas order under Section 344 is not appealable. The Counsel mainly relied upon with regard to Section 195-A, particularly for the offence under Section 195-A of IPC and relied upon the judgment of the Andhra Pradesh High Court in the case of Rebaka Vara Prasad (supra) and contends that the meaning as defined under Section 2(d) of Cr.P.C., the word 'complaint' is with regard to taking an action under the Code does not include a police report but the word 'complaint' is mentioned under Section 195-A of Cr.P.C. cannot be construed in a narrow sense, so as to not to include a police report and the offence under Section 195A of IPC confers the power on police to investigate the case. 39 When such being the case, the Court below has rightly rejected the application and several judgments are relied upon before this Court with regard to maintainability of the appeal is concerned and none of the judgments referred with regard to maintainability is concerned and law is also not developed with regard to amended proviso of Section 195-A of Cr.P.C.
30. In the background of the amendment made recently to Cr.P.C. bringing proviso of Section 195-A of Cr.P.C., this Court has to keep it in mind the very object of making amendment to Section 195-A of Cr.P.C. i.e. Procedure for witnesses in case of threatening, etc., hence, I would like to extract the very Section 195-A of Cr.P.C. as below:
195A. Procedure for witnesses in case of threatening, etc:- A witness or any other person may file a complaint in relation to an offence under Section 195A of IPC 40
31. I would also like to refer the penal provision of Section 195-A of IPC, which has been amended recently and the same is extracted as under:
195-A. Threatening any person to give false evidence.- Whoever threatens another with any injury to his person, reputation or property or the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extent to seven years, or with fine, or with both;
32. It has to be noted that the amendment was brought to Section 195-A of Cr.P.C. in 2009 vide Act No.5 of 2009, which came into effect from 31.12.2009 and so also Section 195-A of IPC was brought into vide Act No.2 of 2006 which came into effect from 16.04.2006 and it has to be noted that though the amendment was made to IPC in 2006, amendment is brought to the Cr.P.C. in 2009 and I have already 41 pointed out that the Court has to interpret the law with the very object of bringing the said amendment and making an enabling provision for the aggrieved person to approach the Court.
33. A bare reading of Section 195-A of Cr.P.C. is clear that the application can be filed either by witnesses or any other person, who may file a complaint in relation to an offence under Section 195A of IPC and I have already pointed out with regard to maintainability of the appeal is concerned, law is not developed as on today and I have also made all efforts to see that whether any decisions on this aspect, but I did not find any decisions of the Hon'ble Supreme Court or any other High Courts or this Court with regard to the issue involved in the matter with regard to maintainability of the appeal is concerned.
34. Now then, this Court has to analyze the points arise before this Court. Admittedly, the 42 application is filed under Section 195-A of Cr.P.C. before the Court below praying the Court to register the complaint and order for FIR and refer the matter to the jurisdictional Magistrate for investigation against the persons, who indulged in causing threat to the witnesses and the said application has been rejected by the Court below. Hence, the present appeal is field before this Court. I would like to refer Section 340 of Cr.P.C. as to whether rejection of the application filed before the Court below comes within the purview of Section 340 of Cr.P.C. as contended by the appellant's counsel and also appellant has invoked the proviso of Section 341 to prefer this appeal on the ground that his application was rejected and hence, I would like to refer the proviso of Section 340 and 341 of Cr.P.C. which has been extracted below:
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340. Procedure in cases mentioned in Section 195. (1) When upon an application made to it in this behalf or otherwise, any Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-
section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
a) record a finding to that effect;
b) make a complaint thereof in writing;
c) send it to a Magistrate of the first class having jurisdiction;
d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court 44 thinks it necessary so to do, send the accused in custody to such Magistrate; and
e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section
195. (3) A complaint made under this Section shall be signed.-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court 45 may authorize in writing in this behalf.
(4) In this section, "Court" has the same meaning as in Section 195.
341. Appeal.- (1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section and subject to any such order, an order under Section 46 340, shall be final, and shall not be subject to revision.
35. No doubt, Section 340 of Cr.P.C. says that upon application made to it in this behalf or otherwise any Court is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be. Hence, on reading of this provision, it is clear that if any offence under referred in clause (b) of sub-section (1) of Section195 which appears to have been committed in or in relation to a proceeding in that Court, the complaint can be filed and also make preliminary inquiry in this regard. It is clear that Section 195-A of Cr.P.C. has not been included in Section 340 of Cr.P.C. However, I have already pointed out that the said amendment was brought into effect 47 recently and law has not been developed. A reading of the proviso is clear that when it appears to have been committed in or in relation to a proceeding in that Court, it attracts Section 340 of Cr.P.C. and also it is important to note that on reading of Section 341, it is clear that any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint and any application made under Section 340 of Cr.P.C., an appeal can be filed.
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36. On conjoint reading of Sections 340 and 341 of Cr.P.C. and also an application filed before the Court below which was refused to make a complaint, an application is filed. No doubt, it is not the application filed under Section 340 of Cr.P.C., but in the case on hand, I have already pointed out that Section 195-A has not been included in Section 340 and the same has been recently amended, but law has not been developed. When such being the case, when the complaint has been filed before the Court below making allegations of causing of threat to give evidence and when the object of protecting the witnesses, an enabling proviso has been made and when such application has been rejected by the Court below and the very order amounting to passing of final order since it reaches its finality on the application and finally decided. Hence, taking into note of the provision of Section 340, Section 340 empowers the Court to initiate the proceeding if any offence 49 appears to have been committed in or in relation to a proceeding in that Court. The word used in Section 340, it is clear that when it appears to the Court that an offence has been committed in or in relation to a proceeding in that Court, the very application under Section 195-A of Cr.P.C. also comes within purview of Section 340 of Cr.P.C. since offences are against public justice and when it comes within the purview of Section 340, the appeal lies under Section 341 of Cr.P.C. Hence, the very contention of the learned AAG and also counsel appearing for respondent Nos.5 to10 that the appeal is not maintainable cannot be accepted. Hence, in view of the discussions made above, I answer the point No.1 in the affirmative.
Point No.2
37. It has to be noted that the application is filed under Section 195A of Cr.P.C. requesting the Court to receive the complaint and order for concerned 50 Magistrate to hold enquiry and referring the complaint to the jurisdictional Magistrate to initiate the proceedings. On perusal of the impugned order, the Court below has mainly given two reasons for rejecting the application in coming to the conclusion that it is crystal clear that Section 195-A of Cr.P.C. is cognizable offence as per Schedule of Cr.P.C. For that the police have got power to investigate under Section 156 of Cr.P.C. Therefore, present relief as sought by the petitioner is out of the jurisdiction of this Court. Because the persons named in the application are nothing to do with the case on hand. Further, neither the applicant nor witnesses who examined before the Court in pending SC No.50/2017 have never whispered anything against any one of the accused about threat or etc. and further says that the matter is pending before the High Court in writ petition and this Court cannot take any view. 51
38. Having taken note of the reasons mentioned in para-9 of the order, no doubt the offence under Section 195-A of IPC is cognizable and the High Court of Andhra Pradesh has also discussed in the judgment with regard to the word 'complaint' used in Section 2(d) of Cr.P.C. Further held that it should not be referred in a narrow sense and comes to the conclusion that the police also may investigate under Section 156 of Cr.P.C. The Trial Court failed to take note of the fact that it is the case of the witness CW19 who filed an application before the Court below that there is a threat and he has been approached by the persons referring the name of the persons who have approached him and caused threat to him to give evidence particularly in reference to the case which is pending in the very same Court in SC No.50/2017 in favour of the accused. The observation is that he has not been whispered anything against anyone of the accused about threat etc. and 52 also by other witnesses who have been examined before the Court. The trial Court failed to take note of the fact that the allegations made in the complaint is not insofar as to the accused and the allegations is made against other than the accused persons that too mainly two police officers and also against the Ex-Minister. The specific allegations is that on 23.10.2017, CW19 has been approached by one of the police officer visiting his house and also he has been taken to Ex-Minister and caused threat and when such threat has been made to the witness to give evidence in favour of the accused. No dispute that he has been quoted as CW19 and when he brought the said fact to the notice of the Court by filing an application and that too a threat in respect of very case which is pending before the Court. The trial Court ought not to have rejected the application filed under Section 195A of Cr.P.C. which is an enabling provision and the same has been made and inserted as proviso 53 giving opportunity to the witness or any person with regard to in case of any threat and further on reading of Section 195A of Cr.P.C., it is specifically mentioned that procedure for witnesses in case of threatening, etc. Further it has to be noted that the said application has to be filed by witness or any other person and need not necessarily be a witness, even any other person may file a complaint in relation to an offence under Section 195- A of IPC which is specifically mentioned with regard to threatening of any person giving false evidence, the word is used in Section 195A of IPC whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment. When the word has been used under Section 195-A of IPC whoever threatens another and it is not restricted that threatening only by the accused 54 persons, but the Court below while rejecting the application comes to the conclusion that the relief as sought by the petitioner is out of the jurisdiction of the Court, because the accused persons named in the application are nothing to do with the case on hand and when the fact of threat is caused to the witness in respect of particular case in SC No.50/2017, the trial Court ought to have considered the same and the Constitution enshrined that a fair trial is also a part of dispensation of justice. The Court below has lost its sight of interference has been made in administration of justice and when threat has been caused to the witness, who is also charge sheet witness, apart from that it is the case that the conversation has been made with the witnesses particularly in respect of the case which is pending before the very same Court in SC No.50/2017. The allegations made that persons who have approached him are the police officials and they are not 55 working in Dharwad. It is the allegation that the said police officials took the witness to the Ex-Minister in connection with the very case. It is a serious concern about the dispensation of justice, when the fair trial is also a part of the right conferred upon an individual. Whether he may be witness or any other person, that is what the intent of the wisdom of the legislation and enabling provision is made to fair trial. I also mentioned the provisions of Section 195-A of Cr.P.C. that a witness or any other person may file a complaint in relation to an offence under Section 195-A of IPC. Further Section 195-A of Cr.P.C. says that whoever threatens another with an intent to cause that person to give false evidence shall be punished, whether they are accused or any other person and the specific allegation is that the said threat has been made in connection with the case which is pending before the Court.
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39. The other reason assigned that matter has been ceased before the High Court and the Court cannot take any view. The writ petition is pending with regard to seeking an order to refer the matter to the CBI and very pendency of the writ petition would not come in the way of giving protection and taking action against the persons who indulges causing threat. When an approach is made to Court on the ground of threat, it is the duty of the trial Court to see that the witnesses has to be protected and the Court also should expect that there should not be any threat to any witness comes to give evidence before the Court. When the cause of threat has been brought to the notice of the Court, it is the duty of the Court to see that same should not be happened in dispensation of justice and the witness has to come to the Court without any fear. It has to be noted that the appellant has produced certain documents with regard to conversation taken place between the persons 57 who indulged in causing threat to the witnesses. The very Annexures-G to L are telephonic conversation and also Annexure-M which shows that with regard to the threat to the witnesses, a representation was given to the Superintendent of Police, Dharwad on 29.11.2017 and also an affidavit is filed in respect of the said complaint on 30.11.2017. No action has been taken and also brought the said fact to the notice of the Court below and an application is filed and in this regard a memo was filed subsequently when the order has not been passed in respect of the application and when such being the case, it is the duty cast upon the Court to see that a preliminary enquiry ought to have been held with regard to causing of threat to the witnesses and refer the matter to the concerned jurisdictional Magistrate to inquire into the matter and the same has not been done. The reasons assigned by the Court below is also not sustainable in the eye of law and I have 58 already pointed out that it is the duty of the Court to see that if any threat is caused to any witness or interference is made in dispensation of justice and administration of justice, to give protection to the witnesses and also if any complaint is filed to entertain the same in order to conduct fair trial in the matter. No doubt, the learned AAG has brought to the notice of this Court that CW19 who has filed an appeal before this Court has not given any evidence before the Court below. Admittedly, he is a brother of the person who has been killed and hence, case is pending before the Court, if he does not turn upon, a recourse has to be taken against the witness and non-appearance of the witness before the Court itself is not a ground to reject the same and furthermore, representation was given to the Superintendent of Police and the same has not been considered by the Superintendent of Police. Hence, the application is filed before the Court below to take 59 necessary action in the matter. When such application is filed by CW19 who is charge sheet witness with the allegation of telephonic conversation made with him and caused threat. The said application is also filed through Public Prosecutor and surprisingly, the government is opposing the same before this Court and the Court below by rejecting the application washed of its hand on technicality and not considered the application on merits and nothing is discussed in the order regarding the substance of the application and not passed the reasoned order and hence, it requires the application has to be considered afresh on merits and requires remand for reconsideration. Hence, the order impugned is liable to be set-aside.
40. In view of the discussions made above, I pass the following order:
i) Appeal is allowed.
ii) The impugned order is set-aside.
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iii) The Court below is directed to
consider the application afresh in
view of the observations made in
this judgment and dispose of the
same on merits and not on
technicality and proceed in
accordance with law.
Sd/-
JUDGE
JTR/Mrk/JTR/-