R IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE H.N. NAGAMOHAN DAS. CRIMINAL PETITION No. 979/2012

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1 1 R IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 26 th DAY OF SEPTEMBER, 2012 BEFORE THE HON BLE MR. JUSTICE H.N. NAGAMOHAN DAS CRIMINAL PETITION No. 979/2012 BETWEEN: Sri. PRABHAKAR REDDY K C S/O. CHOKKAPPA AGED ABOUT 33 YEARS R/A. No. 727, 3-C, 8 TH MAIN 1 ST BLOCK, H R B R LAYOUT KALYANA NAGAR BANGALORE PETITIONER (By Sri. Y R SADASHIVA REDDY, ADV.) AND: STATE BY ASHOK NAGARA POLICE STATION BANGALORE REP. BY S.P.P. HIGH COURT OF KARNATAKA BANGALORE. 2. Smt. R MALA D/O.LATE RAJAGOPALAN AGED ABOUT 61 YEARS

2 2 R/A. No. 63, 1 ST FLOOR THYAGARAJ NAGAR BANGALORE RESPONDENTS (By Sri. P KARUNAKAR, HCGP, FOR R-1 Sri. RAVI B NAIK, Sr. COUNSEL, FOR Sri. S VASANTH MADHAV, ADV., FOR R-2) --- THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 Cr.P.C. WITH A PRAYER TO QUASH THE PROCEEDINGS IN PCR No /2011 ON THE FILE OF THE INVESTIGATION ACMM, BANGALORE AND ETC. THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY, H.N.NAGAMOHAN DAS. J, PRONOUNCED THE FOLLOWING; O R D E R On respondent No. 2 filed a complaint against the petitioner under Section 200 Cr.P.C. for the offence punishable under Section 465, 471, 506 and 420 IPC. The jurisdictional Magistrate recorded the sworn statement of respondent No. 2, took cognizance of the offence and directed respondent No. 1 police to investigate the matter. Now the jurisdictional police have registered a case against the petitioner in crime No.323/2011. Therefore the petitioner is before this Court to quash the proceedings.

3 3 2. Second respondent contend that she filed a civil suit in O.S.No.10743/1992 against Sreeramaiah and others for declaration of title, recovery of possession and permanent injunction. The subject matter of this suit is 30 guntas of land in Sy. Nos. 63/2, 112/3 and 115 situated Kowdenahalli village, K.R. Puram, Bangalore. In this O.S. No.10743/1992 second respondent produced certain documents. On contest this O.S. No.10743/1992 came to be dismissed vide judgment dated When the second respondent wanted to take back the documents produced in this suit, to her shock and surprise that documents were already withdrawn by forging her signature. It is the petitioner who is the beneficiary of withdrawal of the documents in O.S. No /1992. It is the petitioner who has misused the process of law and forged signature of second respondent and had withdrawn the documents. Therefore, the petitioner filed the private complaint in PCR No.19266/2011 against the petitioner. Aggrieved by filing of private complaint and taking cognizance by the jurisdictional Magistrate, referring the matter to the police and in turn the police registering a case against the petitioner in Cr.No.323/2011 petitioner is before this court under Section 482 CRPC.

4 4 3. Sri Sadashiva Reddy, learned counsel for the petitioner contends that petitioner is not a party to the proceedings in O.S.No.10743/1992. Petitioner has not purchased the property involved in O.S.No.10743/1992. Petitioner is not the beneficiary of the documents produced in this suit and he has not misused the process of law nor forged the signature of the complainant. On the other had petitioner purchased land in Sy.No.111/5 situated at Kowdenahalli village, Bangalore East Taluk under a registered sale deed dated from his vendor Smt.Chitra Annaswamy and Nagaraj. With an intention to harass and intimidate the petitioner the second respondent has lodged the private complaint. The alleged allegation against the petitioner relates to illegal withdrawal of documents from the court record in O.S.No.10743/1992 and as such there is a bar under Section 195 Cr.P.C. for the Trial Court to take cognizance of the offence. It is contended that the complaint lodged by the second respondent is nothing but abuse of process of law and there is a statutory bar and as such the proceedings are to be quashed. 4. Per contra, Sri Ravi B.Naik, learned senior counsel for the second respondent contends that the allegations made in the complaint before the Trial Court requires to be investigated and at the initial stage, the

5 5 proceedings cannot be quashed. The bar under Section 195 CRPC is not applicable to the facts of this case. He supports the order of the Trial Court in taking cognizance of the offence. Reliance is placed on the following decisions: i. Rasiklal Dalpatram Thakkar Vs. State of Gujarat and others, (2010) 1 SCC 1 ii. Som Mittal Vs. Government of Karnataka, (2008) 3 SCC 753 iii. Ran Dhan Vs. State of Uttar Pradesh and another, (2012) 5 SCC 536 iv. Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, (2005) 4 SCC 370 v. D. Venkatasubramaniam and others Vs. M.K. Mohan Krishnamachari and another, (2009) 10 SCC 488 papers. 5. Heard arguments on both the side and perused the entire petition 6. At this stage it is necessary to examine under what circumstances inherent powers specified under Section 482 Cr.P.C. can be exercised by this Court. The word `inherent power specified in Section 482 is not

6 6 defined in the Code. But through several judicial pronouncements the Apex Court held as to when the High Court can exercise inherent powers. If the Court is satisfied that there is a great miscarriage of justice or abuse of process of Court or the required statutory provisions had not been complied with or to secure the ends of justice, in that event it is but the duty of the Court to have it corrected at the inception by exercising its inherent powers. Therefore the amplitude of inherent power of this Court under Section 482 Cr.P.C. can be exercised at any stage. But this inherent power shall not be exercised as a matter of rule but exceptionally, sparingly and rarest of rare cases. The Supreme Court in the case of D. Venkatasubramaniam Vs. M.K. Mohan Krishnamachari, (2009) 10 SCC 488 held that the inherent power under Section 482 of the Code can be exercised by the High Court either suo motu or on an application (i) to secure ends of justice; (ii) to give effect to any order under Cr.P.C.; (iii) to prevent abuse of process of any Court. 7. Keeping the above principle in view it is necessary to examine the fact situation in the present case. The relevant allegation made against the petitioner in the private complaint filed by the second respondent is as under:

7 7 It is the Accused alone who will benefit from such original documents of the said property, since all parent documents, revenue documents were produced by the Complainant in the Trial Court. Hence the complainant is of firm opinion that it is the Accused who has misused the process of law and by forging the signature of the Complainant has withdrawn the original of the documents from the Trial Court. 8. A reading of the above allegation in the private complaint manifestly makes it clear that it relates to an offence relating to withdrawal of the documents given in evidence from the court record. Section 195 CRPC specifies that no court shall take cognizance of any offence committed in respect of documents produced or given in evidence in a proceedings in any court. Therefore there is a statutory bar for the Trial Court to take cognizance of the offence. On this ground the proceedings are liable to be quashed. 9. The Supreme Court in the case of Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another (2005) 4 SCC 370 held as under: 10. The scheme of the statutory provision may now be examined. Broadly, Section 195 Cr.P.C. deals with three

8 8 distinct categories of offences which have been described in clauses (a), (b)(i) and (b)(ii) and they relate to (1) contempt of lawful authority of public servants, (2) offences against public justice, and (3) offences relating to documents given in evidence. Clause (a) deals with offences punishable under Sections 172 to 188 IPC which occur in Chapter X IPC and the heading of the Chapter is Of Contempts of the Lawful Authority of Public Servants. These are offences which directly affect the functioning of or discharge of lawful duties of a public servant. Clause (b)(i) refers to offences in Chapter XI IPC which is headed as Of False Evidence and Offences Against Public Justice. The offences mentioned in this clause clearly relate to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorised by law to receive such declaration, and also to some other offences which have a direct correlation with the proceedings in a Court of justice (Sections 205 and 211 IPC). This being the scheme of two provisions or clauses of Section 195 viz. that the offence should be such which has direct bearing or affects the functioning or discharge of lawful duties of a public servant or as a direct correlation with the proceedings in a court of justice, the expression when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court occurring in clause

9 9 (b)(ii) should normally mean commission of such an offence after the document has actually been produced or given in evidence in the court. The situation or contingency where an offence as enumerated in this clause has already been committed earlier and later on the document is produced or is given in evidence in Court, does not appear to be in tune with clauses (a)(i) and (b)(i) and consequently with the scheme of Section 195 Cr.P.C. this indicates that clause (b)(ii) contemplates a situation where the offences enumerated therein are committed with respect to a document subsequent to its production or giving in evidence in a proceeding in any court. xxx xxx xxx 23. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words court is of opinion that it is expedient in the interests of justice. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such

10 10 forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded. 10. It is not the case of the respondent that the fabrication of evidence was outside the Court and before the documentary evidence was produced before the Court. On the other hand it is the specific case of second respondent that she produced certain documents before the Court in O.S. No /1992 in the course of her evidence. This O.S. No /1992 came to be dismissed vide judgment dated Thereafter the second respondent came to know that by forging her

11 11 signature the documents produced by her are withdrawn from the Court record. The offence committed with respect to withdrawal of documents when they were in custody of Court therefore relates to Court record and administration of justice. Therefore the court shall hold an enquiry and record a finding. In the circumstances there is a statutory bar under Section 195(1)(b)(ii) of the Code from taking cognizance of the offence by the jurisdictional Magistrate on a private complaint under Section 200 Cr.P.C. Therefore the proceedings are liable to be quashed. 11. Though it is not pleaded in the complaint, learned senior counsel for the second respondent contends that she lodged a complaint on with the Registrar of the Court with regard to withdrawal of the documents in O.S.No.10743/1992 by forging her signature and a copy is produced before this Court. It is contended that on this complaint no action is taken. If that is so, the remedy available to the second respondent is not to file a private complaint against the petitioner but to approach the concerned authorities in the hierarchy for redressal of her grievance. Even now it is open for the second respondent to complain to the court with regard to the withdrawal of the documents in O.S.No.10743/1992 by

12 12 forging her signature. In such an event the concerned court shall take appropriate action in accordance with law. 12. For the reasons stated above, the following: i) Petition is hereby allowed. ORDER ii) The proceedings in P.C.R.No.19266/2011 on the file of the IV. Addl. Chief Metropolitan Magistrate, Bangalore City are hereby quashed. iii) It is open for the second respondent to approach the concerned court complaining the withdrawal of the documents in O.S.No.10743/1992 by forging her signature. In such an event, the concerned court shall take appropriate action in accordance with law. Ordered accordingly. Sd/- JUDGE. DKB/LRS.