Karnataka High Court
Annaraya S/O Bapuraya Patil vs The State Of Karnataka on 22 February, 2017
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF FEBRUARY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200173/2017
Between:
Annaraya S/o Bapuraya Patil
Age: 26 years, Occ: Agriculture
R/o Bomannali
Tq: Sindagi, Dist: Vijayapur
... Petitioner
(By Sri Shivanand V. Pattanashetti, Advocate)
And:
The State of Karnataka
R/by Addl. SPP
High Court of Karnataka
Kalaburagi Bench
(Through Sindagi P.S.
Dist: Vijayapur)
... Respondent
(By Sri Maqbool Ahmed, HCGP)
This Criminal Petition is filed under Section 482 of
Cr.P.C., praying to set aside the order of taking cognizance
and issue of process dated: 09.12.2015 and consequently
quash the further proceedings pending in C.C.No.202/2015
on the file of JMFC at Sindagi, for the offence punishable
U/Sec. 193, 196, of IPC.
2
This petition coming on for admission this day, the
Court made the following:-
ORDER
This petition is filed by the petitioner/accused under Section 482 of Cr.P.C., praying to quash the further proceedings in C.C.No.202/2015 pending on the file of JMFC, Sindagi, registered for the offences punishable under Sections 193 and 196 of IPC.
2. Brief facts of the case are that, the petitioner was a material witness in Sindagi Police Station Crime No.08/2009 and his statement was recorded under Section 164 of Cr.P.C. on 06.04.2009 and after investigation, the charge-sheet was led against the petitioner and thereafter the case was committed to Fast Track Court-II, Vijayapur for trail. There, the petitioner whose statement has been recorded under Section 164 of Cr.P.C. has turned hostile to the case of the prosecution, as such, the Court directed to file a complaint. The concerned Shirastedar of the Court filed 3 a complaint against the petitioner and after investigation, the concerned police have filed the charge-sheet against the petitioner. The Court below, by taking the cognizance has issued summons to the petitioner on 09.12.2015. Being aggrieved by the said order, the petitioner is before this Court.
3. I have heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
4. Learned counsel for the petitioner would submit that the Court below, ignoring the provisions of Section 340 of Cr.P.C. has taken the cognizance, even though there was no written complaint given by the authority to the Magistrate as contemplated under the law. He would also submit that the criminal Court is prohibited from taking the cognizance of the offence under Section 195(1)(b)(ii) of Cr.P.C., unless a complaint in writing is filed as per the procedure prescribed under 4 Section 340 of Cr.P.C. He would further submit that the Court below, ignoring the procedure laid down has taken the cognizance, which is not sustainable in law and is liable to be quashed. On these grounds, he prays for allowing the petition by quashing the proceedings.
5. On the contrary, the learned High Court Government Pleader appearing for the respondent-State vehemently argued by contending that so far as the procedure is concerned, the concerned Shirastedar has filed a written complaint, but however, he has not filed it before the Magistrate, but he has filed it before the police and by taking the cognizance and after investigation, the charge-sheet has been led against the petitioner. There is a material to show that the petitioner has turned hostile even after giving his statement under Section 164 of Cr.P.C. He has also contended that the petitioner has deliberately turned hostile, as such he is not entitled to any relief as 5 contemplated under the law. He has further contended that if this Court comes to the conclusion that there is a procedural irregularity or illegality, the necessary permission may be granted to the complainant to proceed under Section 344 of Cr.P.C for taking appropriate action as contemplated under the said Section, as it is going to affect the administration of justice. On these grounds, he prays for dismissal of the petition.
6. I have gone through the contentions taken up by the learned counsel for the petitioner as well as the High Court Government Pleader appearing for the respondent.
7. Before discussing points in issue, I feel it just and necessary to quote Section 340 of Cr.P.C. and also Sections 193 and 196 of IPC which read as under: 6
Section 340 of Cr.P.C.
"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 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 thinks it necessary so to do, send the 7 accused in custody to such Magistratae; and
(e) bind over any persons 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 8 may authorise in writing in this behalf.
(4) In this section, "Court" has the same meaning as in section 195."
Section 193 of IPC:
"193. Punishment for false evidence.-Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine."
Section 196 of IPC:
"196. Using evidence known to be false.-Whoever corruptly uses or attempts to 9 use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence."
8. By going through the provisions of Section 340 of Cr.P.C., the Court can act either on the application or by suo-moto to take action against forgery, but before taking action, the Court has to consider and hold a preliminary inquiry and thereafter to order for taking the cognizance.
9. By close reading of the said provision of law, it definitely say that Court cannot state away proceed to take action against the person who has given a false evidence before the Court. In that light, on perusal of the records of the Court below, it has taken the cognizance on the basis of the charge-sheet filed by the police on the basis of the complaint given by the Shirastedar. The Court below before passing such order has not given any finding so as to file the complaint and 10 has not followed the procedure as contemplated under Section 340 of Cr.P.C. In the absence of such finding by the Court below, the Court cannot proceed against the said witness either under Section 340 of Cr.P.C. or Sections 193 or 196 of IPC. When the prosecution cannot be launched as a matter of routine without following the procedure laid down in the aforesaid section, under such circumstances, the proceedings initiated against the said witness are not justifiable.
10. Even the Hon'ble Apex Court in a decision reported in 1996 SCC (Cri) 521 in the case of SURJIT SINGH AND OTHERS vs. BALBIR SINGH at part 10 has observed that, "10. It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the Court or given in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking 11 cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offences covered thereunder."
11. By going through the above said para, it indicates that by taking cognizance of the offences unless a complaint in writing is filed as per the procedure under Section 340 of Cr.P.C., that itself is considered to be unjust and as such the cognizance taken under Section 195 of Cr.P.C. is also not sustainable in law.
12. Keeping in view the above said discussions and on perusal of the records, I am of the considered opinion that when once the initial illegality has been 12 committed while filing the complaint itself, under such circumstances, the Court taking the cognizance on the basis of the said complaint is also not justifiable and as such the same is liable to be quashed. But, the learned High Court Government Pleader has brought to my notice the provisions of Section 344 of Cr.P.C. which reads as under:
"344. Summary procedure for trial for giving false evidence.-(1) if, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after 13 giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.
(3) Nothing in this sections hall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section.
(4) Where, after any action is initiated under sub-section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub-section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further 14 proceedings of the trial shall abide by the results of the appeal or application for revision."
13. By going through the above said provision of law, if any false evidence is given and it has come to the notice, under such circumstances, at the time of delivery of any judgment or final order disposing of any judicial proceeding, if the Court opines to the effect that witness appearing in such proceeding had knowingly or willfully giving false evidence or had fabricated false evidence, then definitely it can take cognizance. But, in the instant case on hand, since already the case has been disposed of, the question of taking the cognizance under Section 344 of Cr.P.C. does not arise at all. But, however, for the future guidance the Court below while initiating such proceedings by following above said procedure, it can proceed as per the law laid down in Section 344 of Cr.P.C.
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Keeping in view the above said facts and circumstances of the case, the petition is allowed and the further proceedings in C.C. No.202/2015 pending on the file of JMFC, Sindagi, registered for the offences punishable under Sections 193 and 196 of IPC are quashed.
Sd/-
JUDGE LG Ct: RRJ