Karnataka High Court
Mukesh Chandu @ Mukku vs The State Of Karnataka on 27 July, 2023
Bench: Anil B Katti
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CRL.A No. 100018 of 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100018 OF 2020
BETWEEN:
MUKESH CHANDU @ MUKKU
S/O SUBHODH CHANDU,
AGED ABOUT 40 YEARS, OCC: ACCOUNTANT,
R/O: D-14, LAFARGE COLONY, GOPAL NAGAR,
DIST: JANJGIR/CHAMPA CHATTISGARH.
...APPELLANT
(BY SRI. G.I. GACHCHINAMATH, ADV.)
AND:
Digitally
signed by
ANNAPURNA
ANNAPURNA CHINNAPPA
CHINNAPPA DANDAGAL
THE STATE
DANDAGAL
Date: THROUGH VIDYANAGAR POLICE STATION,
2023.07.28
11:29:56 -0700 HUBBALLI REPRESENTED BY STATE
PUBLIC PROSECUTOR, DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP FOR RESPONDENT
SRI. S. B. HEBBALLI, ADV.)
***
THIS CRIMINAL APPEAL IS FILED U/SEC.341 OF
CR.P.C., PRAYING TO CALL FOR RECORDS IN RESPECT OF
S.C. NO.14/2008 ON THE FILE OF THE V ADDITIONAL
SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI AND TO
SET ASIDE THE IMPUGNED ORDER DATED 17.12.2019 MADE
IN S.C. NO.14/2008 PASSED BY THE V ADDITIONAL
SESSIONS JUDGE, DHARWAD AND FURTHER ALLOW THE
APPLICATION FILED BY THE ACCUSED UNDER SECTION 340
R/W SECTION 195(1)(b)(i) OF CR.P.C.
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CRL.A No. 100018 of 2020
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
AND THE SAME HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.06.2023, THIS DAY, THE COURT,
DELIVERED THE FOLLOWING:
JUDGMENT
Appellant feeling aggrieved by the order on the
file of V Additional District and Sessions Judge, Dharwad,
(sitting at Hubballi), for the offences punishable under
Section 340 read with Section 195(1)(b)(i) of Cr.P.C.
dated 17.12.2019, preferred this appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that
complainant filed private complaint No. S.C.No.400/2004
on the file of JMFC II Court Hubli, under Section 200 of
Cr.P.C for the offences punishable under Sections 306
and 304 of IPC. The same was referred under Section
156(3) of Cr.P.C. to the jurisdictional Police to enquire
and report. On receipt of complaint referred by the
Court, the investigating officer after completion of
investigation filed the charge sheet.
CRL.A No. 100018 of 2020
4. During trial, the dairy of alleged to have
been written by deceased-Saba came to be marked as
per Ex.P.2 and Ex.P.60. In the copies of document
Ex.P.2 furnished to accused and public prosecutor did
not contained the word "on cheat". Whereas in Ex.P.60
found in the Court records "on cheat" has been inserted
subsequently while document was in the custody of
Court. The intention of the person who makes such
insertion is to fix the accused on the manipulated
document. Therefore, filed application under Section 340
R/W Section 195(1)(b)(i) of Cr.P.C. The trial Court after
hearing both sides rejected the application.
5. Appellant/accused challenged said rejection
of the application filed under Section 340 R/W Section
195(1)(b)(i) of Cr.P.C. contending that trial Court should
have ordered for an enquiry for tempering of the Court
document while the same was in the custody of Court. It
is a matter of serious concern and trial Court ought not
to have out rightly rejected the application. The trial
Court either should have been enquired into by itself or
referred the matter to Police for investigation. The
approach and appreciation of factual aspects in deciding
CRL.A No. 100018 of 2020
the application are contrary to law and evidence on
record. Therefore, prayed for allowing the appeal and to
set aside the order of trial Court. Consequently to allow
the application filed by the accused.
6. In response to the notice, learned High Court
Government Pleader appeared for respondent and
learned counsel Sri.S.B.Hebballi, is representing
complainant.
7. Heard the arguments of both sides.
8. On careful perusal of material evidence
produced by the appellant, it would go to show that the
accused is facing trial in S.C.No.14/2008, on the file of V
Additional Sessions Jude, Dharwad, sitting at Hubballi,
for the offences under Sections 306 and 304 of IPC. The
trial is almost concluded. It is at this stage the accused
filed an application under Section 340 R/W Section
195(1)(b)(i) of Cr.P.C. It is alleged in the application
that in dairy of deceased marked as Ex.P.2 furnished to
accused and public prosecutor the word "on cheat", is
not appearing. However, the copy of very same dairy in
the custody of Court is marked as Ex.P.60 and in said
CRL.A No. 100018 of 2020
document the word "on cheat" is appearing. The
insertion of word "on cheat" in Ex.P.60 while the
document was in the custody of Court is with an
intention to fix accused in the matter on manipulation of
document. Therefore, learned counsel for appellant has
contended that the trial Court either should have
referred the application and document to the concerned
police for investigation under Section 156(3) of Cr.P.C.
or to enquiry itself to ascertain the person who is
responsible for tampering of the document in Ex.P.60.
The trial Court ought to have taken note of there being
serious allegation in tampering records in the custody of
Court and secondly the same has bearing on the case of
accused.
9. Learned counsel for appellant has argued
that the tampering of document Ex.P.60 while in the
custody of Court is a matter of serious concern and it
should not have been taken it lightly by trial Court.
P.W.14-investigating officer admits in his cross
examination the word "on cheat" in Ex.P.60 is appearing.
Therefore, there is prima facie material evidence of
CRL.A No. 100018 of 2020
tampering the document Ex.P.60 while in the custody of
Court and matter needs to be investigated.
10. Per contra, learned High Court Government
Pleader and counsel representing for complainant have
argued that Ex.P.2 is not authenticated document.
Therefore, the contents of Ex.P.2 and Ex.P.60 cannot be
compared to hold that there is insertion of word "on
cheat" as contended by learned counsel for appellant.
The appellant has not made out by any case for an
action in terms of Section 340 of Cr.P.C.
11. The prosecution for the offence under
Section 195 of Cr.P.C relating to document given in
evidence, the procedure contemplated in terms of
Section 340 of Cr.P.C has to be followed. Therefore, it
would be appropriate to re-produce Section 340 and
Section 195 Cr.P.C for ready reference which reads as
under:
"340. Procedure in cases mentioned in
section 195.--(1) When, upon an application
made to it in this behalf or otherwise, any Court is
of opinion that it is expedient in the interests of
Justice that an inquiry should be made into any
offence referred to in clause (b) of sub-section (1)
CRL.A No. 100018 of 2020
of section 195, which appears to have been
committed in or in relation to a proceeding in that
Court or, as the case may be, in respect of a
document produced or given in evidence in a
proceeding in that Court, such Court may, after
such preliminary inquiry, if any, as it thinks
necessary,--
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class
having jurisdiction;
(d) take sufficient security for the
appearance for the accused before such
Magistrate, or if the alleged offence is non-
bailable and the Court thinks it necessary so
to do, send the accused in custody to such
Magistrate; and
(e) bind over any person to appear and give
evidence before such Magistrate.
(2) The power conferred on a Court by sub-
section (1) in respect of an offence may, in any
case where that Court has neither made a
complaint under sub-section (1) in respect of that
offence nor rejected an application for the making
of such complaint, be exercised by the Court to
which such former Court is subordinate within the
meaning of sub-section (4) of section 195.
CRL.A No. 100018 of 2020
(3) A complaint made under this section shall be
signed,--
(a) where the Court making the complaint is a
High Court, by such officer of the Court as the
Court may appoint;
1 [(b) in any other case, by the presiding officer
of the Court or by such officer of the Court as the
Court may authorize in writing in this behalf.]
(4) In this section, "Court" has the same meaning
as in section 195."
"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--(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, 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;
CRL.A No. 100018 of 2020
(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), 1 [except 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].
(2) Where a complaint has been made by a public
servant under clause (a) of sub-section (1) any
authority to which he is administratively
subordinate may order the withdrawal of the
complaint and send a copy of such order to the
Court; and upon its receipt by the Court, no
further proceedings shall be taken on the
complaint:
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CRL.A No. 100018 of 2020
Provided that no such withdrawal shall be ordered
if the trial in the Court of first instance has been
concluded.
(3) In clause (b) of sub-section (1), the term
"Court" means a Civil, Revenue or Criminal Court,
and includes a tribunal constituted by or under a
Central, Provincial or State Act if declared by that
Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub-section
(1), a Court shall be deemed to be subordinate to
the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former
Court, or in the case of a Civil Court from whose
decrees no appeal ordinarily lies, to the principal
Court having ordinary original civil jurisdiction
within whose local jurisdiction such Civil Court is
situate:
Provided that--
(a) where appeals lie to more than one Court, the
Appellate Court of inferior jurisdiction shall be the
Court to which such Court shall be deemed to be
subordinate;
(b) where appeals lie to a Civil and also to a
Revenue Court, such Court shall be deemed to be
subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding
in connection with which the offence is alleged to
have been committed."
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12. On plain reading of both these proviso, it
would go to show that in terms of Section 195 of Cr.P.C.
the prosecution for contempt of lawful authority of public
servants, for offences against public justice and the
offences relating to documents given in evidence, the
procedure under Section 340 Cr.P.C has to be followed.
13. In the present case, the accused specifically
alleged that in the dairy said to have been written by
deceased-Saba and the copy of which furnished to the
accused and public prosecutor in Ex.P.2 does not appear
word "on cheat". Whereas in the copies of document in
the custody of the Court filed along with the charge
sheet marked as Ex.P.60 the word "on cheat" is
appearing. The said insertion is by way of tampering the
document Ex.P.60 while the said document was in
custody of the Court. The intention of person who makes
such an insertion is to fix the accused in this case based
on the manipulated document. Therefore, the case of
accused falls in terms of Section 195(1)(b)(i) of Cr.P.C
for the offence under Section 193 to 196 Cr.P.C and
offence is alleged to have been committed in
proceedings before the trial Court.
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CRL.A No. 100018 of 2020
14. Learned High Court Government Pleader and
the learned counsel for complainant have argued that
Ex.P.2 is not the copy of document submitted along with
the charge sheet. The copy of dairy written by the
deceased-Saba is filed along with charge sheet Ex.P.60.
The appellant has not obtained certified copy of
document at Ex.P.60 and only on the basis of copy
furnished to him as per Ex.P.2 along with the copy of
charge sheet alleges that the insertion of word "on
cheat" in Ex.P.60 is made while the said document was
in the custody of Court. The trial Court has also
observed in para No. 8 of it's order that no any
suggestions was made to P.W.1 in cross examination of
alleged insertion. It means that the suggestion is only
made to P.W.14-the investigating officer and not to
P.W.1, who produced the dairy to the investigating
officer.
15. It is the contention of leaned counsel for the
accused that the matter should have been referred for
investigation in terms of Section 156(3) of Cr.P.C. or the
Court itself should have held an enquiry regarding
tampering of document while the same was in custody of
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CRL.A No. 100018 of 2020
Court. If Section 195 of Cr.P.C is carefully read then it is
evident that the same would mandate that no Court
shall take cognizance except on the complaint in writing
of that Court or by such officer of Court as that Court
may authorize in writing in this behalf, or some other
Court to which that Court is sub-ordinate. Therefore,
filing of complaint either by Court or by authorized
officer is mandatory for taking cognizance of offence
covered in term of Section 195(1)(b)(i) of Cr.P.C. In the
present case no such complaint is filed by Court or by
authorized officer of the Court. Therefore, the contention
of learned counsel for accused that either application
filed under Section 340 of Cr.P.C. should have been
referred to investigation under Section 156(3) of Cr.P.C.
or Court itself should have held an enquiry on the
alleged tampering of document while in the custody of
Court cannot be legally sustained.
16. On meticulous reading of Section 340 of
Cr.P.C, it would go to show that when, upon an
application made to it in this behalf or otherwise, any
Court is of opinion that it is expedient in the interest of
justice that an inquiry should be made into any offence
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referred to in clause (b) of sub- section (1) of section
195, which appears to have been committed in or in
relation to a proceeding in that Court or, as the case
may be, in respect of a document produced or given in
evidence in a proceeding in that Court, such Court may,
after such preliminary inquiry, if any, as it thinks
necessary must record a finding to that effect than make
a complaint thereof in writing and send it to a Magistrate
of the first class having jurisdiction by taking sufficient
security and bind over any person to appear and give
evidence before such Magistrate.
17. In terms of Section 340(2) of Cr.P.C. power
is conferred to Court in respect of filing complaint on
recording a finding that in the opinion of Court that it is
expedient in the interest of justice that action is required
to be taken for the offence covered in terms of Section
195(1)(b)(i) of Cr.P.C. In the present case, the trial
Court has not recorded any finding or decided to hold
any preliminary enquiry that the alleged tampering of
document was done while same was in the custody of
Court. The mandate of proviso of Section 340 of Cr.P.C
is that the Court must record finding that it is expedient
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in the interest of justice that an enquiry should be made
in to an offence referred to clause (1)(b) sub-Section( i)
of Section 195 Cr.P.C. It is only on recording such
finding, the Court is empowered either to make
complaint by itself or authorize Court officer to file the
complaint. It is only on such written complaint is being
received the jurisdictional Magistrate is empowered to
take cognizance in terms Section 195 of Cr.P.C for the
offences covered under Section 195(1)(b)(i) of Cr.P.C.
18. In this context of the matter it is useful to
refer the judgment of Hon'ble Apex court in NIRMALJIT
SINGH HOON VS. STATE OF WEST BENGAL AND
ANOTHER reported in (1973) 3 SCC 753, wherein it
has been observed and held that:
"The proper construction of Section
195(c) is that when a party to a proceeding
before any Court produces or tenders in
evidence a document in respect of which an
offence, e.g. Section 471 R/W 467 is allege
to have been committed, it is that court
before which the document is produced or
tender in evidence which can file a complaint
regarding such an offence and a Magistrate
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cannot take cognizance of such an offence
accept upon a complaint by such Court or
Court sub-ordinate to it."
In view of principles enunciated in this decision and
looking to the procedure contemplated in terms of
Section 340 of Cr.P.C for prosecution of offences relating
to the document given in evidence in terms of Section
195(1)(b)(i) of Cr.P.C. taking of cognizance on the
application filed by accused cannot be legally sustained.
19. Indisputably, the evidence in this case is
already concluded, it is open for the parties to address
their grievances before the trial Court on the Exs.P.2 and
60, if Court is satisfied then, it will have to take recourse
to procedure contemplated in terms of section 340 and
Section 195(1)(b)(i) of Cr.P.C. Consequently, proceed to
pass the following:
ORDER
The appeal filed by the appellant/accused is hereby
dismissed.
(Sd/-)
JUDGE
AC
