Karnataka High Court

M Lokesh vs State By Vijayanagar Police on 30 June, 2022

Bench: Hemant Chandangoudar

                            1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 30TH DAY OF JUNE, 2022

                          BEFORE

    THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

              CRIMINAL PETITION NO.3508/2017

BETWEEN:


M. LOKESH
S/O MADAIAH,
AGED ABOUT 62 YEARS,
R/AT NO.U-44, MARUTHI EXTENSION,
PALACE GUTTAHALLI,
BANGALORE-560 003.

                                               ...PETITIONER
(BY SRI ROHAN HOSMATH, ADVOCATE)

AND:

STATE BY VIJAYANAGAR POLICE
REP. BY SPP,
HIGH COURT BUILDING,
BANGALORE-560 001.

                                           ...RESPONDENT
(BY SRI S. VISHWAMURTHY, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO QUASH
THE PROCEEDINGS AS AGAINST ACCUSED NO.4 THE
PETITIONER HEREIN IN C.C.NO.506/2010 PENDING BEFORE THE
XXIV ACMM, BANGALORE.
                                  2



     THIS CRIMINAL PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

A charge sheet was filed for the offences punishable under

Sections 193, 201, 206, 466, 420, 471 read with Sections

120(B) and 149 of IPC alleging that the petitioner - accused

No.4 by forging the signature, filed vakalath and written

statement on behalf of the defendant No.2 in OS No.3356/1997,

which came to be dismissed for default. Upon filing of an

application for restoration, the said suit was restored and

thereafter the suit was decreed. It is further alleged that on an

application filed for restoration, the decree was recalled and the

suit was restored. It is further alleged that the accused Nos.1 to

3 have colluded with accused No.4 in forging the signature of the

respondent No.2, filed vakalath and also the written statement

and obtained the decree so as to defraud the complainant. The

learned Magistrate after accepting the charge sheet took the

cognizance for the aforesaid offences and issued summons.

Taking exception to the same, this petition is filed.

2. The learned counsel appearing for petitioner submits

that the subsequent petition ie., present petition filed is

maintainable since the trial has not progressed even after a

lapse of six years from the date of filing of charge sheet.

Reliance is placed on the decision of the Hon'ble Apex Court in

the case of Superintendent and Remembrancer of Legal Affairs,

West Bengal -vs- Mohan Singh reported in (1975) 3 SCC 706.

He further submits that in view of the specific bar contained in

Section 195(1)(b)(i) of Cr.PC, the cognizance taken by the

learned Magistrate for the aforesaid offences on the basis of the

report submitted by the police is one without authority of law. In

support reliance is placed on the decision of the Hon'ble

Supreme Court in the case of Bandekar Brothers Pvt Ltd v

Prasad Vassudev Keni and others reported in (2020)20 SCC 1.

3. On the other hand, the learned High Court

Government Pleader appearing for the respondent - State

submits that the charge sheet material clearly discloses that the

petitioner by forging the signature of the complainant on

vakalath and written statement has committed the offences

alleged against him and the same does not warrant any

interference and sought for dismissal of petition.

4. I have examined the submissions of the learned

counsel for the parties.

5. The petitioner had challenged the very impugned

proceedings in Crl.P No.1175/2011 which came to be dismissed

on 12.2.2015 on the ground that there was dispute with regard

to the signature and the matter requires to be considered after

full-fledged trial. The learned Magistrate has not taken steps in

proceeding with the trial by summoning the prosecution

witnesses. The petitioner is seeking for quashing the impugned

proceeding on the ground that the cognizance taken by the

learned Magistrate is one without authority of law in view of

specific bar contained under Section 195(1)(b)(i) of Cr.PC, which

goes to the root of the matter and as such the present petition is

maintainable. The Apex Court in the case of Superintendent and

Remembrancer of Legal Affairs (supra) has held as follows:

"........The facts and circumstances obtaining at the time of the subsequent application of respondent Nos.1 and 2 were clearly different from what they

were at the time of the earlier application of the first respondent because, despite the rejection of the earlier application of the first respondent, the prosecution had failed to make any progress int he criminal case even though it was filed as far back as 1965 and the criminal case rested where it was for a period of over one and half years. It was for this reason that, despite the earlier order dated December 12, 1968, the High Court proceeded to consider the subsequent application of respondent Nos.1 and 2 for the purpose of deciding whether it should exercise it inherent jurisdiction under Section 561A. This the High Court was perfectly entitled to do and we do not see any jurisdictional infirmity in the order of the High Court. Even on the merits, we find that the order of the High Court was justified as no prima facie appears to have been made out against respondents Nos.1 and 2."

6. The earlier petition filed by the petitioner was

dismissed on the ground that there was dispute with regard to

the signature and the matter requires to be considered after full-

fledged trial. However, the trial has not progressed even after

the dismissal of the earlier petition for more than two years.

The decision of the Hon'ble Supreme Court in the case of supra

is squarely applicable to the facts of the present case. The

authority of the learned Magistrate to take cognizance of

offences enumerated in Section 195 of Cr.P.C which goes to the

root of the matter is also questioned in this petition. Hence, the

present petition is held to be maintainable.

7. Section 195(1)(b)(i) specifies that no court shall take

cognizance of any offence punishable under any of the following

sections of the Indian Penal Code viz: Sections 193 to 196, 199,

200, 205 to 211, 228, 463, 471, 475 and 476 when such offence

is alleged to have been committed in, or in relation to any

proceeding in any Court, except on a complaint in writing of that

Court or by such officer of the Court as that Court may authorise

in writing in his behalf, or of some other Court to which that

Court is subordinate.

8. The Hon'ble Apex court in the case of Bandekar

Brothers Private Limited and another -vs- Prasad Vassudev Keni

and other reported in (2020) 20 SCC 1 has held as follows:

"48. Equally important to remember is that if in the course of the same transaction two separate offences are made out, for one of which Section 195 CrPC is not attracted, and it is not possible to split them up, the drill of Section 195(1)(b) CrPC must be followed. Thus, in State of Karnataka v. Hemareddy [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , this Court referred to a judgment of the Madras High Court (V.V.L. Narasimhamurthy, In re [V.V.L. Narasimhamurthy v. State, 1953 SCC OnLine Mad 236 :

AIR 1955 Mad 237] ) and approved its ratio as follows : (Hemareddy case [State of Karnataka v. Hemareddy, (1981) 2 SCC 185 : 1981 SCC (Cri) 395] , SCC pp. 190- 91, paras 7-8)

................. The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will may cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, in the complaint will undoubtedly fall under Section 192 IPC. It will, therefore, amount to an offence under Section 193 IPC i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed will also amount to an offence under Sections 467 and 471 IPC. For prosecuting this petitioner for an offence under Sections 467 and 471, a complaint by the court may not be necessary as under Section 195(1)(b) CrPC a complaint may be made only when it is committed by a party to any proceeding in any court.

Mr Jayarama Ayyar does not give up his contention that the petitioner, though he appears only a guardian of the minor girl, is still a party to the proceeding. But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point viz. that when the allegations amount to an offence under Section 193 IPC, a complaint of court is necessary under Section 195(1)(a) CrPC and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.'

8. We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence for which no complaint by a court is necessary under Section 195(1)(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that

the prosecution of the accused for the offences not mentioned in Section 195(1)(b) of the Code of Criminal Procedure should be upheld."

9. In the present case, the petitioner has been charge

sheeted for the offences punishable under Sections 193, 201,

206, 466, 420, 471 read with Sections 120(B) and 149 of IPC

and the alleged offences have been committed by filing

vakalatnama and the written statement on behalf of the

complainant by forging his signature in relation to a proceeding

in a Court. Hence, the cognizance taken by the learned

Magistrate for the aforesaid offences is contrary to Section

195(1)(b)(i) of Cr.PC and the same is held to be one without

authority of law.

10. The petitioner has been charge-sheeted for the