Karnataka High Court
Libert A. Vaz vs The State Of Karnataka on 6 December, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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CRL.P No. 102021 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL PETITION NO. 102021 OF 2022
BETWEEN:
LIBERT A. VAZ,
AGE. 60 YEARS, OCC. SECOND DIVISION ASSISTANT,
WORKING IN THE COURT OF CIVIL JUDGE, SAVANUR,
DIST. HAVERI-581110.
... PETITIONER
(BY SRI. J.S. SHETTY, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY ITS PUBLIC PROSECTOR,
HIGH COURT OF KARNATAKA,
DHARWAD-581110.
2. CHIEF ADMINISTRATIVE OFFICER,
PRINCIPAL DISTRICT & SESSIONS COURT,
HAVERI, DIST. HAVERI-581110.
... RESPONDENTS
VIJAYALAKSHMI
Digitally signed
by
VIJAYALAKSHMI
(BY SRI. P.N. HATTI, HCGP FOR R1 & R2)
M KANKUPPI M KANKUPPI
Date: 2023.12.16
11:12:32 +0530
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO THAT THE ENTIRE CRIMINAL PROCEEDINGS IN CC
NO.234/2017 (PRIVATE COMPLAINT NO.111/2017) OF THE FILE OF
SENIOR CIVIL JUDGE AND JMFC, HANGAL, FILED BY THE SECOND
RESPONDENT AGAINST THE PETITIONER/ACCUSED NO.4 HEREIN,
FOR THE OFFENCE PUNISHABLE U/S 191, 193, 194, 195, 463, 466
R/W SECTION 34 OF IPC, MAY KINDLY BE QUASHED, BY ALLOWING
THIS CRIMINAL PETITION, IN THE ENDS OF JUSTICE AND EQUITY.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.P No. 102021 of 2022
ORDER
This petition is filed seeking quashing of the entire
proceedings in C.C.No.234/2017 pending on the file of the
Senior Civil Judge and JMFC, Hanagal, registered for the
offences punishable under Sections 191, 193, 194, 195,
463 and 466 read with Section 34 of Indian Penal Code
(hereinafter referred to as the "IPC", for brevity).
2. Heard learned counsel for the petitioner and
learned High Court Government Pleader for respondents.
3. The respondent No.2, as per the directions of
the learned Sessions Judge passed in S.C.No.28/2015
dated 18.09.2017 contained in para 31 of the said
judgment has lodged complaint before the Senior Civil
Judge and JMFC, Hangal. It came to be registered in
P.C.No.111/2017. The said complaint came to be
registered against this petitioner (accused No.4) and three
others (accused Nos.1 to 3). As the respondent No.2 has
filed complaint in the capacity of the public officer, learned
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Magistrate has dispensed with recording the sworn
statement and took cognizance for the offences under
Sections 191, 193, 194, 195, 463 and 464 read with
Section 34 of the IPC and ordered to register criminal case
against this petitioner and three others and accordingly,
C.C.No.234/2017 has been registered and pending on the
file of the Senior Civil Judge and JMFC, Hangal. The
petitioner sought quashing of the said proceedings in
C.C.No.234/2017.
4. Learned counsel for the petitioner would
contended that learned Sessions Judge without holding a
preliminary enquiry as required under Section 340 of the
Criminal Procedure Code (hereinafter referred to as the
Cr.P.C.", for brevity) has passed order directing
respondent No.2 to file complaint against the petitioner
and three others. On that point, he placed reliance on the
decision of Co-ordinate Bench of this Court in case
rendered on petitions filed by accused Nos.1 to 3 in
Criminal Petition No.101524/202, Criminal Petition
No.101303/2018 clubbed with Criminal Petition
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No.100237/2018. With these, learned counsel for the
petitioner has prayed for quashing of the proceedings of
the criminal case registered against the petitioner in
C.C.No.234/2017.
5. Per contra, learned High Court Government
Pleader would contend that learned Sessions Judge while
giving the findings in the judgments passed in
S.C.No.28/2015 in paragraph 31 has opined that an
enquiry should be made into an offence referred in Clause
(b) of Sub Section (1) of Sec. 195 of Cr.P.C. against the
petitioner and three others. He further contended that the
proceedings against other three persons, who are accused
Nos.1 to 3 in C.C.No.234/2017 have been quashed by this
Court on the ground of the preliminary enquiry has not
been held by learned Sessions Judge as required under
Section 340 of the Cr.P.C. He further submits that the
similar benefit can be given to the petitioner subject to
holding of an enquiry against the petitioner in proceedings
initiated under Section 340 of the Cr.P.C before the
learned Sessions Judge.
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6. Learned Sessions Judge while disposing of
S.C.No.28/2015 in the judgment dated 18.09.2017 has
made following observations in paragraphs 22 to 31 as
under:
"22) PW.14 Dr.Kuri is the medical officer in Government hospital,
Hangal and a responsible Government servant who is supposed to
discharge his duty as per the norms known to law and he cannot act
by favouring any of the parties. On the other hand, it appears from
the evidence of PW.14 Dr.Kuri that he has totally forgotten his
responsibility as a medical officer and as per his say he has made an
endorsement as per Ex.P.24(a) on the alleged statement of the
victim without her presence and he has shown disregard to such
norms and it appears that he has acted in an irresponsible manner.
He is also legally bound by an oath to state the truth only. Before
starting to give evidence, he has taken oath before the court and
while giving evidence, he has totally deviated from the evidence
available on record and such of the materials would goes to show
that PW.14 Dr. Nagaraj Kuri though he is legally bound by an oath
to state truth only, but he has given a false evidence knowing fully
well that it is a false and far away from truth. Such of his conduct of
giving false evidence would constitute the offences punishable
u/Ss.191 and 193 of IPC.
23) Ex.D.1 is the certified copy of Ex.P.24 which is a statement of
the victim Pavitra (Ex.D.1 and Ex.P.24 are the same documents)
and after the arrest of the accused, for moving bail petition, they
have obtained certified copy of the order sheet, statement of the
victim Pavitra, FIR and bail petition was filed before the I Addl.,
District and Sessions Court at Haveri as Criminal Misc. No.386/2014
and the same was allowed on imposing conditions. The entire file of
Crl. Misc. No.386/2014 has been called for reference in this case at
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the request of the learned defence counsel and the same is
available on record.
24) In Crl.Misc. No.386/2014, advocate for accused petitioner has
produced the certified copy of the order sheet, FIR, copy of the
statement of the victim Pavitra, copy of the order sheet and copy of
the requisition sent by the Investigating Officer on 31.8.2014 for
conversion of the case into one u/S.302 IPC. Among them, certified
copy of the order sheet, FIR, statement of the victim were obtained
from JMFC court, Hangal on 30.8.2014. Ex.D.1 is the certified copy
of Ex. P.24 which is the statement of the victim Pavitra. In the same
as on 30.8.2014, the endorsement" Taken infront of me, Sd/-
Dr.N.S.Kuri with seal of medical officer, Government hospital,
Hangal" was not there on the original statement of the victim
Pavitra. The said endorsement has been marked as Ex.P.24(a).
Ex.P.24 is the original statement of the victim Pavitra. Ex.D.1 is its
certified copy. If we read both Ex. P.24 and Ex.D.1 with bare eye, it
is clear to the court that the aforesaid endorsement marked as
Ex.P.24(a) has been inserted subsequent to 30.8.2014.
25) Ex. P.26 is the FIR. On reading of the same, it is seen that
PW.15 Abdul Khadar, then H.C. of Hangal police has registered the
FIR on the basis of the statement of the victim as per Ex.P.24 on
28.8.2014 and on the same day at 5.05 p.m., FIR has been reached
to the learned JMFC, Hangal. Along with the FIR, original statement
marked as Ex.P.24 was also with the learned JMFC on 28.8.2014 at
5.05 p.m. Ex.D.1 certified copy of Ex. P.24 was taken by the
advocate for accused on 30.8.2014 from the learned JMFC, Hangal
and as on that date, Ex. P.24(a) endorsement was not appearing in
Ex.P.24. It would goes to show that Ex.P.24(a) endorsement has
been made by some of the interested persons while the document
Ex.P.24 was in custody of the learned JMFC, Hangal. Such of the
materials would clearly goes to show that while Ex.P.24 original
statement of the victim was in custody of the court, some interested
persons in collusion with the then pending clerk of the criminal
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branch of the learned JMFC, Hangal have created an endorsement
as per Ex.P.24(a).
26) Having reached to the conclusion that Ex.P.24(a) endorsement
has been falsely created in collusion with the then criminal pending
clerk of the learned JMFC, Hangal, I wanted to ascertain as to who
are all have played mischief in creating the said endorsement as per
Ex.P.24(a).
27) On going through the evidence available on record, it is seen
that PW.14 Dr. Nagaraj Kuri is the medical officer who has treated
the injured Pavitra and as per the prosecution case, he has made an
endorsement as per Ex.P.24(a), PW.15 Abdul Khadar was the
S.H.O. and he has recorded the statement of the victim as per
Ex.P.24 on 28.8.2014 and PW.18 Mahadeva Yeligar was the then
P.S.I. of Hangal Police Station and he was incharge of the
investigation of this case from 28.8.2014 to 1.9.2014. This court
has secured the information as to who was the criminal pending
clerk of Senior Civil Judge and JMFC court at Hangal during August
2014 and as per the information furnished by the learned JMFC,
Hangal through their O.No.1011/2017 dated 25.7.2017, have
submitted a report stating that from 1.6.2013 to 22.6.2015 one
Mr.Libert A. Vaz S.D.A. (hereinafter referred as 'Vaz') was the
criminal pending clerk of the said court. Along with the report, they
have sent the Attendance Register and order sheet of the leaves
availed by the staff of the said court. For convenient sake, it is
marked as Ex.C.1. On reading of such materials, it is clear to the
court that Vaz was the criminal pending clerk and he was in custody
of the connected papers of this case at Hangal P.S. Cr.No.
126/2014.
28) On perusal of the oral evidence of PW.14 Dr. Nagaraj Kuri,
PW.15 Abdul Khadar and PW.18 Mahadeva Yeligar with the
documents marked as Exs.D.1, D.2, Ex.P.23, Ex.P.24 and Ex.P.28, it
is clear to the court that Ex.P.24(a) endorsement is not the original
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endorsement made at the time of recording the statement of the
victim on 28.8.2014 as per Ex.P.24 and the same was subsequently
created. Ex.P.24(a) reads as under;
"Taken infront of me, Sd/- Dr.N.S.Kuri with seal of medical
officer, Government hospital, Hangal"
29) FIR Ex.P.26 was registered for the offences punishable
u/Ss.498-A and 307 r/w. S.34 IPC. Evidence on record would goes
to show that injured Pavitra died in KIMS Hospital at Hubli while
taking treatment on 31.8.2014. In para 5 and 7 of his evidence,
Investigating Officer - PW.18 has stated that he has received
information on 31.8.2014 at 7.00 p.m., about the death of injured
Pavitra while taking treatment in KIMS Hospital and on the same
day night he has submitted written request to the JMFC, Hangal for
conversion of the case into one u/S.302 IPC and later handed over
the investigation to CW.26 - PW.17 then C.P.I. of Hangal.
30) Ex.D.1 and Ex.D.2 would goes to show that on 30.8.2014
advocate for accused have obtained certified copy of Ex.P.24 and
the same is marked as Ex.D.1. On reading of the same, it is seen
that as on 30.8.2014, Ex.P.24(a) endorsement was not there on
Ex.P.24 and such of the materials would goes to show that
Ex.P.24(a) has been subsequently created by PW.14 Dr.Nagaraj
Kuri, PW.15 Abdul Khadar and PW.18 Mahadeva Yeligar then P.S.I.
in collusion with the pending clerk Vaz. Such of the materials would
further goes to show that after conversion of the case into one
u/S.302 of IPC in order to give more color to their case, PW.15
Abdul Khadar and PW.18 Sadev SESSI Yelgiar then P.S.I. appears to
have hatched a plot for making such endorsement as per Ex.P.24(a)
and in pursuance of such of their plot, they have prevailed upon
PW.14 Dr.Nagaraj Kuri and Mr.Vaz then criminal pending clerk and
ultimately they have forged and created such false endorsement as
per Ex.P.24(a) in order to get conviction for such a severe charge
u/S.302 IPC which is punishable with death or life imprisonment.
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31) Admittedly after registering the FIR on 28.8.2014, the FIR
Ex.P.26, statement of the victim Ex.P.24 with connected order sheet
and other papers were in custody of Vaz, then criminal pending
clerk of JMFC, Hangal. It would goes to show that the aforesaid
persons have forged the record of the court in collusion with each
other. Creation or forging the document or record of the court by
the outsiders i.e., PWs.14, 15 and 18 in collusion with Vaz is a
serious offence and the same has been committed by the aforesaid
persons and for the aforesaid reasons coupled with the facts and
circumstances of the case such of their act has been made as
punishable for the offences u/Ss.194, 195, 463 and 466 r/w. S.34
IPC. Such of the illegal act of the aforesaid persons would be a
penal act under the aforesaid provisions of Indian Penal Code and
the same is to be enquired into by the jurisdictional magistrate. In
that event, this court has to proceed as per the provisions of Sec.
195(1)(b)(i)(ii) and u/S.340 of Cr.P.C. The aforesaid persons have
committed a serious crime by creating the court record and by
looking to the facts and circumstances of the case, in my opinion it
is expedient in the interest of justice that an enquiry should be
made into an offence referred to in Clause (b) of Sub Section (1) of
Sec. 195 of Cr.P.C. against the aforesaid persons and in view of my
finding referred supra, there is no need of any preliminary enquiry
by this court on that material aspect and accordingly I deem it
proper to direct the Chief Administrative Officer of the District court,
Haveri authorizing him to write a complaint in that regard and
submit or send it to the jurisdictional magistrate i.e., Senior Civil
Judge and JMFC at Hangal for taking appropriate action against the
aforesaid persons as per law.."
7. On perusal of the aforesaid observations made
by learned Sessions Judge, there is an allegation against
this petitioner having tampered the Court documents
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namely Ex.P.24, while it is in his custody. In para 31, the
learned Sessions Judge has opined that an enquiry should
be made into an offence referred in Clause (b) of Sub
Section (1) of Sec. 195 of Cr.P.C against the petitioner and
three others. Learned Sessions Judge further held that in
view of his findings referred in paragraphs 22 to 31, there
is no need of any preliminary enquiry and directed the
Chief Administrative Officer of the District Court, Haveri, to
lodge the complaint. On reading of sub-section (1) of
section 340 of Cr.P.C holding of preliminary enquiry is
necessary as the petitioner and three other persons were
not given an opportunity of hearing.
8. It is only after holding a preliminary enquiry to
be held in separate miscellaneous case to be registered
under Section 340 of the Cr.P.C. learned Sessions Judge
can direct filing of the complaint, if it is held that the
petitioner and three other have been committed offences
under Section 191, 193, 194, 195, 463 and 464 read with
Section 34 of the IPC as observed in paragraphs 22 to 31
of the judgment passed in S.C.No.28/2015.
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9. This Court on the petition filed by accused
Nos.1 to 3 has quashed the order dated 18.09.2017
passed in S.C.No.28/2015 by Principal District and
Sessions Judge, Haveri, insofar as it relates directing the
Chief Administrative Officer of Principal District and
Sessions Judge, Haveri, to file complaint under Section
195(1)(b)(i)(ii) and u/S.340 of Cr.P.C. and consequently,
quashed the proceedings in C.C.No.234/2017 against the
accused Nos.1 to 3. Petitioner herein also entitled to the
said benefit of quashing proceedings in C.C.No.234/2017.
10. On perusal of the orders passed by Co-ordinate
Bench of this Court in the petitions referred (supra), the
observations made by learned Sessions Judge in
paragraphs 22 to 31 are not quashed or set-aside. The
registration of the complaint by Chief Administrative
Officer and consequently, the proceedings in
C.C.No.234/2017 are quashed by the Co-ordinate Bench of
this Court in the said three criminal petitions. Therefore,
the observations made by learned Sessions in paragraphs
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22 to 31 remains, except the directions to the Chief
Administrative Officer, to lodge a complaint.
11. The present petitioner and three other persons
were required to be given opportunity in an enquiry held
against them to ascertain their involvement in commission
of the offences punishable under Sections 191, 193, 194,
195, 463 and 464 read with Section 34 of the IPC as
observed by learned Sessions Judge in paragraphs 22 to
31. Therefore, the enquiry is required to be held against
this petitioner and three others in view of the observations
of the learned Sessions Judge contained in paragraphs 22
to 31 of the judgment passed in S.C.No.28/2013 in
separate proceedings which will be registered under
Section 340 of the Cr.P.C. and enquiry should be held by
learned Sessions Judge. Even the orders passed by the
Co-ordinate Bench of this Court in three petitions filed by
the accused Nos.1 to 3 is not impediment to hold enquiry
against them also as observations of the learned Session
Judge contained in paragraphs 22 to 31 are not set-aside
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by Co-ordinate Bench of this Court. In view of the above,
the following:
ORDER
The petition is allowed.
The impugned order dated 18.09.2017 passed
in S.C.No.28/2015 by Principal District and Sessions
Judge, Haveri, insofar as it relates directing the Chief
Administrative Officer of Principal District and Sessions
Judge, Haveri, to file complaint against the accused
No.4 under Section 195(1)(b)(i)(ii) and u/S.340 of
Cr.P.C. is hereby quashed.
Consequently, the proceedings against the
petitioner herein in C.C.No.234/2017 pending on the
file of the Senior Civil Judge and JMFC, Hangal, stands
quashed.
Learned Principal District and Sessions Judge,
Haveri, is directed to register a separate
miscellaneous case under Section 340 of the Cr.P.C
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against this petitioner and three others (accused
Nos.1 to 3 in C.C.No.234/2017) and hold enquiry and
give opportunity to the petitioner and three others.
Registry is directed to send copy of this order to
the learned Principal District and Sessions Judge,
Haveri, for compliance.
Sd/-
JUDGE
AC
CT:BCK
