R. Basavaraja Gowda vs State of Karnataka and Others

K.N. Phaneendra, J.—Heard the learned counsel for the petitioner as well as the learned High Court Government Pleader appearing for respondent No. 1 and the learned counsel appearing for respondent No. 2.

Petitioner has approached this Court seeking to quash the entire proceedings in P.C. No. 4/2014 and also consequent registration of Crime No. 73/2014 on the file of Sadar Bazar Police Station, Raichur.

The brief factual matrix of the case are that:

Respondent No. 2 herein lodged a private complaint in P.C. No. 4/2014 on the file of Additional Senior Civil Judge and JMFC-I, Raichur. On presentation of the said complaint, the learned Magistrate has referred the complaint to the Police Sub-Inspector, Sadar Bazar Police Station for investigation under Section 156(3) of Cr.P.C., and report to the Court. The concerned police on the basis of such private complaint registered a case in Crime No. 73/2014 for the offences punishable under Sections 193, 199, 209, 511 r/w Section 34 of I.P.C. The complaint averments disclose that the complainant has specifically stated that accused (petitioner herein) on behalf of himself and accused No. 2 has filed a suit in O.S. No. 3/2010 on the file of Civil Judge at Raichur, against the complainant and others seeking for declaration and for permanent injunction in respect of land bearing Sy. Nos. 66 and 67 of Hosur village, Raichur Taluk and District. It is the allegation that accused Nos. 1 and 2 have filed the above said case and in the said case they have sworn to a verifying affidavit by giving false information to the Court and thereby, they have committed the offences as noted in the complaint. It is also further alleged that accused No. 1 (petitioner herein) has entered into the witness box in the said original suit and filed affidavit, by way of evidence, producing forged vamshavali stating that the same has been issued by the Village Accountant of Askihal. Later, complainant came to know that the Village Accountant has not at all issued such document and it is a fake document produced before the Court by the plaintiff (petitioner herein). On these allegations, the complaint came to be lodged and referred to the police by the jurisdictional Court. The provision of Section 195 of Cr.P.C., comes into play in such circumstances, wherein, the allegations are made that any of the parties to the civil proceedings have committed any criminal offences during the proceedings in the civil case. It is clear from the said provision that the Court cannot take cognizance unless there is compliance of Section 195 of Cr.P.C. It is worth to note here the said provision. Section 195(1) of Cr.P.C., reads thus:

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-

(1) No Court shall take cognizance-

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or

(ii) of any abetment of, or attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, 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, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii),

[except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.]"

The above said provision clearly discloses that criminal Court is debarred from taking cognizance of any offence punishable under the provisions of Sections 193 to 196, 199, 200, 205 to 211 and 228 of I.P.C. when such offence is alleged to have been committed, in, or in relation to, any proceedings in any Court. Sub-clause (ii) of Section 195(1)(b) of Cr.P.C., further clarifies that if any offence described in Section 463, or punishable under Sections 471, 475 or Section 476 of Cr.P.C., is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any civil Court, unless there is complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. Therefore, it clearly indicate that the private complaint filed alleging any of the offences which are covered under Section 195 of Cr.P.C., a private complaint is not maintainable and the Court before which offences are alleged to have been committed, that Court has to lodge complaint before the criminal Court for further proceedings.

It is unfortunate to note here that the learned Senior Civil Judge, Raichur, even without looking into the contents of the complaint and even without looking to the facts to ascertain as to under what provision of law the complaint has been filed and what are the offences alleged in the complaint, very casually referred the complaint for investigation. The offences alleged in the complaint are under Sections 193, 199, 209, 511 r/w Section 34 of I.P.C. Therefore, all the above said provisions are exactly covered under Section 195 of Cr.P.C. Therefore, the said casual approach of the Additional Senior Civil Judge and JMFC-I, Raichur is hereby deprecated. Hereinafter, it is directed that whenever private complaint is filed, the learned Magistrates have to look into the contents of the complaint in order to ascertain whether the allegations made in the complaint constitute any offences under any penal law for time being in force and further the Magistrates have to confirm themselves that whether there is any legal bar either to take cognizance or to refer the complaint for investigation, that has not been done in this particular case by the learned Magistrate. Therefore, under the above said circumstances, the entire proceedings, registration of the private complaint, referring the complaint for investigation to the police are vitiated by serious illegalities and incurable defects and the same is liable to be quashed.

Hence, I pass the following:

ORDER

The petition is allowed. Consequently, the entire proceedings in P.C. No. 4/2014 and order dated 04.03.2014 in referring the complaint to Sadar Bazar Police for investigation and consequent registration of Crime No. 73/2014 are hereby stands quashed.

However, respondent No. 2 is at liberty to move the Court, in which the civil case is pending, for appropriate orders.