Karnataka High Court
Guttappagouda And Anr vs Ghururaj And Anr on 15 December, 2021
Bench: H.P.Sandesh
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF DECEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
CRIMINAL PETITION No.201488/2018
CONNECTED WITH
CRIMINAL PETITION No.200029/2019
IN CRL.P.NO.201488/2018
BETWEEN:
1. GUTTAPPAGOUDA
S/O SHANTAPPA RAJAPUR
AGE: 35 YEARS
OCC: REVENUE INSPECTOR
TAHASILDAR OFFICE, VIJAYAPUR
R/O PAREKHA NAGAR
ASHRAM ROAD
VIJAYAPUR - 586 101
2. YAMANAPPA
S/O BHASKAR NAGATHAN
AGE: 50 YEARS
OCC: SHERISTEDAR
TAHASILDAR OFFICE, VIJAYPUR
R/O BEHIND JUMMA MASJID
KUMBAR GALLI, J.M. ROAD
VIJAYAPUR - 586 101
...PETITIONERS
(BY SRI SHIVANAND V PATTANASHETTI, ADVOCATE)
2
AND:
1. GURURAJ
S/O MUTTAPPA JANGAMSHETTY
AGE: 70 YEARS
OCC: COOLIE
R/O BABALESHWAR TQ & DIST
VIJAYAPUR - 586 101
2. THE STATE OF KARNATAKA
R/BY ADDL. SPP
HIGH Court OF KARNATAKA
KALABURGI BENCH - 5875 103
...RESPONDENTS
(BY SRI SHIVASHANKAR H MANUR, ADVOCATE FOR R1;
SRI GURURAJ V. HASILKAR, HCGP FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING THIS COURT TO SET ASIDE THE ORDER
OF TAKING COGNIZANCE AND ISSUE OF PROCESS DATED
01.04.2014 PASSED BY THE II ADDL. CIVIL JUDGE & JMFC-II
Court AT VIJAYAPUR IN C.C.NO.832/2014 AND ETC.
IN CRL.P.NO.200029/2019
BETWEEN:
1. SMT. VINAYA
W/O KALLAPPA JANGAMSHETTI
AGED ABOUT 42 YEARS
OCC: HOUSEHOLD WORK
2. SRI KALLAPPA
S/O MUTTAPPA JANGAMSHETTI
AGED ABOUT 58 YEARS
OCC: AGRICULTURE
3
PETITIONERS ARE R/O
BABALESHWAR
TQ & DIST: VIJAYPUR - 586 101
...PETITIONERS
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
SRI GURURAJ
S/O MUTTAPPA JANGAMSHETTY
AGED ABOUT 69 YEARS
OCC: COOLIE
R/O BABALESHWAR TQ & DIST
VIJAYAPUR - 586 101
...RESPONDENTS
(BY SRI SHIVASHANKAR H MANUR, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C. PRAYING THIS COURT TO SET ASIDE THE ORDER
DATED 01.04.2014 PASSED BY THE II ADDL. CIVIL JUDGE &
JMFC-II Court AT VIJAYAPUR IN C.C.NO.832/2014 TAKING
COGNIZANCE OF THE OFFENCES PUNISHABLE UNDER
SECTIONS 417, 419, 420, 423, 465, 467 & 471 R/W
SECTION 34 OF IPC AND ETC.
THESE PETITIONS COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
These two petitions are filed by the accused Nos.3
and 4 and accused Nos.1 and 2 respectively challenging
the order of taking cognizance against them in PCR
No.48/2014 subsequently which is numbered as
C.C.No.832/2014 vide order dated 01.04.2014 passed by
the II Additional Civil Judge and JMFC-II Court at Vijayapur
and also the order passed by the IV Additional District and
Sessions Judge, Vijaypur in Crl.R.P.No.122/2014 affirming
the order passed by the learned Magistrate taking the
cognizance.
2. The petitioners in Crl.P.No.201488/2018 are
the accused Nos.3 and 4 who are working as Revenue
Inspector and Sheristedar at Tahsildar office, Vijayapur,
respectively and the petitioners in Crl.P.No.200029/2019
are accused Nos.1 and 2.
3. The factual matrix of the case is that the
accused No.1 had purchased the property vide sale deed
dated 06.08.2009 and subsequently in collusion with all
the accused persons, created the false 'U' form even
though the father of the complainant - Muthappa died on
06.11.2009 but 'U' form is signed on 09.04.2010 and as on
the date of signing 'U' form, the complainant's father was
no more and the accused Nos.3 and 4 who being the
Revenue Inspector as well as Sheristedar of Tahsildar
office have indulged in creation of 'U' form. Hence, the
private complaint is filed. Thereafter, the learned
Magistrate on receipt of the complaint, proceeded to hold
an enquiry and recorded the sworn statement and took the
cognizance against all the accused persons and hence,
these petitioners are before this Court.
4. The learned counsel for the petitioners
(accused Nos.1 and 2) in Crl.P.No.200029/2019
vehemently contend that the learned Magistrate erred in
taking cognizance for the offences alleged against these
two petitioners and also against the other petitioners i.e.,
accused Nos.3 and 4 who are the Government Officials and
the allegation of forgery of Form-21 is irrelevant. Apart
from that though an allegation is made in the complaint
that the complainant had approached the jurisdictional
police and they have not registered the case and there was
no any compliance of Section 154(3) of Cr.P.C. The
learned Magistrate has failed to take note of the factual
aspects of the case on merits as well as on technicality and
abruptly proceeded to issue summons. Hence, it requires
interference of this Court.
5. The counsel in support of his argument relied
upon the judgment of this Court passed in Crl.P.No.
200972/2017 dated 14.12.2018 wherein, this Court set
aside the order and remanded the matter to the Trial Court
in view of the judge of PRIYANKA SRIVASTAVA AND
ANOTHER vs STATE OF UTTAR PRADESH AND OTHER
reported in (2015)6 SCC 287 on the ground that no
affidavit was filed. The counsel also relied upon the
judgment of this Court passed in W.P.No.51364/2019
wherein also this Court relied upon the PRIYANKA
SRIVASTAVA's case particularly, paragraph 31 of the
said judgment as well as Section 154(3) of Cr.P.C. and
quashed the proceedings with regard to the non-
compliance of Section 154(3) of Cr.P.C in coming to the
conclusion that no action was taken by them. The counsel
also relied upon the order passed by this Court in
W.P.No.14318/2018 dated 07.06.2021 wherein also this
Court discussed the judgment of the Apex Court in
PRIYANKA SRIVASTAVA's case and also the order of
reference made without application of mind and Section
154(3) of Cr.P.C. and allowed the petition and quashed the
criminal proceedings.
6. The counsel for the petitioners (accused Nos.1
and 2) vehemently contend that the Government officials
are prosecuted without sanction as contemplated under
Section 197 of Cr.P.C and they have discharged their duty
purporting to be done in part of their official capacity and
hence, there cannot be any criminal prosecution against
them. The counsel adopted the rest of the arguments
submitted by the counsel appearing for the accused Nos.3
and 4.
7. Per contra, the counsel for the respondent -
complainant vehemently contend that Section 154(3) of
Cr.P.C contemplates only in case of refusal of giving any
complaint, option is given to the complainant that he may
approach the superior officer and the word is used as 'may'
send the substance of such information, in writing and by
post to the Superintendent of Police and if he satisfied with
the said information, the superior officer shall either
investigate the case himself or direct to investigate by any
police officer subordinate to him and the word 'may' used
in provision of Section 154(3) of Cr.P.C., is only an
optional and not mandatory. Hence, the very contention
of the learned counsel for the petitioners cannot be
accepted.
8. The counsel also vehemently contend that the
gist of the complaint is very clear that all these accused
persons have created the document of 'U' form subsequent
to the death of the father of the complainant and as on the
date of fabrication of the document, the complainant's
father was no more and hence, when the police refused to
register the case, without any other alternative, he filed
the private complaint. The learned Magistrate followed the
procedure accused after receiving the complaint, he was
proceeded to record the sworn statement of the
complainant and thereafter took the cognizance. Hence,
this Court cannot find fault with the order of taking
cognizance against these petitioners.
9. The counsel in support of his argument with
regard to sanction, relied upon the judgment of the Apex
Court in the case of ABHAY SINGH CHAUTALA vs CBI
reported in 2011 CRI.L.J 3953 and referring this
judgment contend that if an act is done purporting to be
done in discharge of public duty then only sanction is
required. And counsel would submit that in the case on
hand, the allegation against the Government officials that
they indulged in creation of 'U' form colluding with each
other and the same cannot be interpreted that the said act
was purporting to be done in discharge of public duty and
hence, the sanction is not required. The counsel also
relied upon the judgment with regard to invoking of
Section 482 of Cr.P.C., for quashing the proceedings and
necessity of sanction in the case of SRI H.S.
CHELUVARAJU vs THE STATE OF KARNATAKA REP.
BY ITS POLICE SUB-INSPECTOR, WEST POLICE
STATION, MANDYA AND ANOTHER reported in ILR
2015 KAR 3983. The counsel would contend that no
sanction is required for the criminal act of the Government
officials.
10. In reply to the argument of the respondent
counsel, the learned counsel for the petitioner relied upon
the judgment reported in (2009)7 SCC 658 between
SARLA GOEL AND OTHERS vs KISHAN CHAND and
brought to notice of this Court paragraph 17 wherein
discussed with regard to the word used 'may' shall be used
as 'shall' would depend upon the intention of the
legislature and also noticed the paragraphs 28, 29 and 30
wherein also discussed with regard to the use of the word
'shall' or 'may' depends on conferment of power. In this
case also the Court has to take note that though the word
is used as 'may' shall also to be read as 'shall' with regard
to the non-compliance of Section 154(3) of Cr.P.C.
11. Having heard the respective counsel and also
on perusal of the material on record, the question before
the Court is whether the learned Magistrate has committed
an error in taking the cognizance against these petitioners
even though non-compliance of Section 154(3) of Cr.P.C.
12. Having heard the respective counsel and also
on perusal of material and also principles laid down in the
judgments referred supra this Court in the order passed in
Crl.P.No.200972/2017, W.P.No.51364/2019 and
W.P.No.14318/2018 relied upon the judgment of the Apex
Court in respect of PRIYANKA SRIVASTAVA's case. In
the case on hand, along with the complaint, affidavit has
not filed and having perused the factual aspects of the
case, the allegation in the complaint is that even though
the father of the complainant was no more as on the date
of the creation of 'U' form, the document was created and
fabricated and relied upon the said document for transfer
of property in the name of the accused No.1. The factual
aspects of the case of PRIYANKA SRIVASTAVA is that
when the SARFAESI Act was invoked against the
complainant, the complainant who is the defaulter of
repayment of the loan had filed the complaint against the
bank officials. Under that circumstances , the Apex Court
passed an order in order to prevent the frivolous complaint
and misusing of the powers held that affidavit should be
accompanied with the complaint. Hence, the Court has to
distinguish the factual aspects of each case and hence,
PRIYANKA SRIVASTAVA's case will not comes to the aid
of the petitioners case.
13. With regard to the other contention that non-
compliance of Section 154(3) of Cr.P.C is concerned, the
very contention of the learned counsel for the respondent
that the word is used as 'may' and the same is not in
dispute and the word is used as 'may' that too for refusal
of receipt of the complaint, the word is used that the
complainant having an option to approach the superior
officer with such information and then, the superior officer
can either investigate himself or authorise any other
investigating officer to investigate the matter. The
judgment relied upon by the petitioners' counsel referred
supra in SARALA GOEL's case that interpretation was
given in respect of default in payment of rent and with
regard to the contractual obligation between the parties
and the tenant is bound to make the payment of rent and
hence, the word 'may' is to be construed as 'shall' that is
interpretation given by the Apex Court in paragraphs 28 to
30 of the judgment and hence, the said interpretation
cannot be applied in this case. Hence, the very contention
of the petitioners counsel that non-compliance of Section
154(3) of Cr.P.C., by the respondent counsel cannot be
accepted terming as 'shall' instead of 'may'.
14. The Court has to look into the factual aspects
of each case and also take note of the gravity of the
offence as well as the allegations made in the complaint.
The learned Magistrate also after receiving the complaint
proceeded to record the sworn statement of the
complainant after taking cognizance and thereafter
considering the sworn statement and the document which
have been relied upon particularly the document at Ex.C3
'U' form and the other documents which have been used
for transfer of property in favour of the accused No.1 taken
the cognizance and hence, I do not find any merit in the
petition to quash the order of taking cognizance.
15. With regard to the other aspect of sanction is
concerned in respect of accused Nos.3 and 4, admittedly,
the document came into existence subsequent to the death
of the father of the complainant and based on these
documents only the accused Nos.3 and 4 have acted upon.
When such being the material on record, the creation of
document and using the same for transfer of property is
not purporting to be done in discharge of public duty.
Hence, protection under Section 197 of Cr.P.C., is not
amenable to the accused Nos.3 and 4. Hence, I do not
find any merit in both the petitions to invoke Section 482
of Cr.P.C., to quash the proceedings initiated against them
in issuance of process against them and it is a matter of
trial whether they indulged in creation of 'U' form and
made use of that created document in transferring the
property in favour of the accused No.1.
16. In view of the discussions made above, I pass
the following:
ORDER
The petitions are dismissed.
Sd/-
JUDGE
SAN
