S B Kolhar vs State Of Karnataka
2023 Latest Caselaw 9810 Kant

Karnataka High Court

S B Kolhar vs State Of Karnataka on 8 December, 2023

Author: Hemant Chandangoudar

Bench: Hemant Chandangoudar

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                                                                  NC: 2023:KHC:45171
                                                             CRL.P No. 10572 of 2023




                             IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                               DATED THIS THE 8TH DAY OF DECEMBER, 2023
                                                 BEFORE
                         THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
                                  CRIMINAL PETITION NO. 10572 OF 2023
                        BETWEEN:

                        1.    S B KOLHAR, S/O BASAPPA
                              AGED ABOUT 73 YEARS
                              R/AT NO.7, II CROSS
                              SHANTHIVANA, SANJEEVININAGAR
                              BENGALURU-560 092.

                        2.    DAKSHAYANI KOLHAR
                              W/O S B KOLHAR
                              AGED ABOUT 66 YEARS
                              R/AT NO.7, II CROSS
                              SHANTHIVANA, SANJEEVININAGAR
                              BENGALURU-560 092.
                                                                       ...PETITIONERS
                        (BY SRI. K B K SWAMY, ADVOCATE)

                        AND:

                        STATE OF KARNATAKA
                        BY VIDHANA SOUDHA POLICE STATION
Digitally signed by B
K                       REPRESENTED BY STATE PUBLIC PROSECUTOR
MAHENDRAKUMAR           HIGH COURT OF KARNATAKA
Location: High Court
of Karnataka            BENGALURU-560 001.
                                                                       ...RESPONDENT
                        (BY SRI. K NAGESHWARAPPA, HCGP)

                              THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
                        THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO QUASH
                        THE ENTIRE PROCEEDINGS IN RESPECT OF PETITIONER NO.1 AND 2
                        THEY    ARE   ACCUSED    NO.1   AND    2   RESPECTIVELY  IN
                        C.C.NO.8334/2012 (CRIME NO.39/2010 OF VIDHANA SOUDHA
                        POLICE STATION BENGALURU FOR THE OFFENCE P/U/S.193, 465,
                        467, 471, 420, 201 R/W SEC.120-B OF IPC PENDING ON THE FILE
                        OF THE HONBLE 39TH ACMM AT BENGLAURU.

                             THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
                        COURT MADE THE FOLLOWING:
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                                                         NC: 2023:KHC:45171
                                                   CRL.P No. 10572 of 2023




                                   ORDER

The petitioners are charge-sheeted for the offences punishable under Sections 193, 465, 467, 471, 420, 201 read with Section 120(B) of IPC.

2. The case of the prosecution is that, the petitioners had furnished the fabricated sale agreement, and based on the fabricated sale agreement, the charge sheet was filed against the petitioners for the offences punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act for possessing the assets disproportionate to the known source of income.

3. During the course of investigation, the petitioners are alleged to have produced the fabricated sale agreement to substantiate that they were not possessing the assets disproportionate to the known source of income. The Investigating Officer, after conducting the investigation, submitted the charge sheet. The fabricated sale agreement was also the part of the charge sheet material, and the Special Court, after appreciating the evidence on record, acquitted the petitioner No.1 herein stating that, the prosecution has failed to prove that, the petitioner No.1 was possessing the assets disproportionate to the known source of income. Therefore, the Investigating Officer lodged the FIR alleging that the petitioners have furnished the fabricated sale agreement.

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4. Heard the learned counsel for the petitioners and the learned High Court Government Pleader for the respondent

- State.

5. Section 193 of IPC deals with punishment for false evidence, and specifies that whoever intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

6. Section 195 of Cr.P.C states that any offence punishable under Sections 193 to 196 both inclusive, the cognizance of the offence taken on the complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf, or of some other court to which that court is subordinate.

7. 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

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(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

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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."

8. The cognizance of the offence committed in relation to can be taken only on the complaint in writing of that court by the officer authorized as stated in Section 195 of Cr.PC and the cognizance taken of the aforesaid offence on the basis of the final report submitted by the police is impermissible. Therefore, the continuation of criminal proceedings will be an abuse of the process of law. Accordingly, I pass the following:

ORDER

i) Criminal petition is allowed.

ii) The impugned proceedings in CC No.8334/2012 pending on the file of the learned 39th Addl. Chief Metropolitan magistrate, Bengaluru, stands quashed.

Sd/-

JUDGE BKM