Karnataka High Court

Sri Mukkatira Pemmaiah vs Lt Col M M Aiyanna (Rtd) on 18 November, 2023

Bench: M.Nagaprasanna

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 18TH DAY OF NOVEMBER, 2023

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.8140 OF 2021

BETWEEN:

SRI MUKKATIRA PEMMAIAH
S/O LATE M.M.MUTHANNA
AGED ABOUT 71 YEARS
OCC: FARMER
R/O NALVATHOKLU VILLAGE AND POST
AMMATHI NAD, SOUTH KODAGU - 571 218.
                                                 ...PETITIONER
(BY SRI UDAYA HOLLA, SENIOR ADVOCATE FOR
    SRI P.NISHAN UNNI, ADVOCATE)

AND:

LT. COL. M.M.AIYANNA (RTD)
S/O LATE M.M.MUTHANNA
AGED ABOUT 75 YEARS
OCC: RETIRED ARMY OFFICER
R/O KOLATHODU BYGODU VILLAGE
HATHUR POST - 571 218.
VIRAJPET TALUK
KODAGU DISTRICT - 571 218.
                                             ...RESPONDENT

(BY SRI LT. COL. M.M.AIYANNA, PARTY-IN-PERSON)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED ORDERS DATED
06.09.2021 PASSED BY THE II ADDL.DISTRICT AND SESSIONS
JUDGE,    KODAGU-MADIKERI,    SITTING   AT   VIRAJPET   IN
CR.R.P.NO.5010/2018 CONFIRMING ORDER DATED 26.06.2018
PASSED BY ADDL.CIVIL JUDGE AND JMFC, VIRAJPET IN
C.C.NO.775/2015, REJECTING THE DISCHARGE APPLICATION
FILED BY THE PETITIONER U/S 245 CR.P.C FOR THE OFFENCE
P/U/S 191 OF IPC AND CONSEQUENTLY QUASH THE ENTIRE
PROCEEDINGS IN C.C.NO.775/2015, PENDING ON THE FILE OF THE
ADDL.CIVIL JUDGE AND JMFC VIRAJPET.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-


                             ORDER

The petitioner is before this Court calling in question order

dated 06-09-2021 passed by the II Additional District and Sessions

Judge, Kodagu-Madikeri sitting at Virajpet rejecting Criminal

Revision Petition No.5010 of 2018 whereby affirming the order

dated 26-06-2018 passed by the Additional Civil Judge & JMFC,

Virajpet in rejecting the application of the petitioner seeking

discharge from the array of accused.

2. Heard Sri Udaya Holla, learned senior counsel appearing

for the petitioner and the respondent Lt. Col. M.M. Aiyanna, party-

in-person.

3. Facts in brief are as follows:-

The respondent is the complainant and the petitioner is the

accused. The petitioner and the respondent are siblings. Dispute

between the petitioner and the respondent and other members of

the family subsist from 2014, the genesis of which was in terms of

a registered partition deed executed on 12-01-1981 between the

respondent and his siblings to which the petitioner was also a

signatory. On 13-09-2011 the Assistant Commissioner of Coorg

District had directed the Tahsildar to mutate the name of the

respondent in place of the petitioner in the revenue records of land

in Sy.No.311/3 and 311/4 of Nalvathoklu Village, Virajpet Taluk,

Kodagu District. This was challenged before the Deputy

Commissioner who had initially granted an interim order of stay by

order dated 03-02-2014, but vacates the same at a later point in

time. Proceedings go on and reached this Court in Writ Petition

No.6713 of 2015 in which certain statements were made by the

petitioner. The respondent took objection to the averments made in

the writ petition stating that they were all falsehood.

4. Based upon the said statements made in the writ petition,

the respondent registers a private complaint in P.C.R.No.164 of

2015 on 15-06-2015 before the learned Magistrate. The allegation

was that the contents in the writ petition before this Court were all

false. The learned Magistrate takes cognizance of the offence

punishable under Section 191 of the IPC on 13-11-2015 and

registers C.C.No.775 of 2015. The registration of criminal case

drives the petitioner to this Court in Criminal Petition No.7820 of

2015 which comes to be rejected. After the said rejection, the

petitioner knocks at the doors of the learned Magistrate seeking his

discharge from the array of accused. The discharge comes to be

rejected. The petitioner prefers a criminal revision petition before

the learned Sessions Judge which also comes to be rejected on

06-09-2021. It is calling in question these actions, the petitioner is

before this court yet again in the subject petition.

5. The learned senior counsel Sri Udaya Holla representing

the petitioner would contend that the very registration of crime for

offence punishable under Section 191 of the IPC is erroneous, as it

is the Court that has to complain on the averments in the writ

petition before this Court and there is no proceeding initiated by

this Court. The complainant cannot invoke the jurisdiction of the

learned Magistrate for the contents in a writ petition filed before

this court. He would seek quashment of entire proceedings.

6. On the other hand, the respondent in person who has filed

his detailed statement of objections would submit a threshold bar

for entertaining the writ petition. The bar is suppression of material

facts. The respondent would submit that the petitioner had

knocked at the doors of this Court in Criminal Petition No.7820 of

2015 and this Court had categorically rejected the petition.

Therefore, it is for the petitioner to come out clean in a full blown

trial. The petitioner has suppressed the fact that he had approached

this Court earlier and has presented the subject petition. He would

submit that the petitioner could not be heard on merits of the

matter but it should be dismissed with exemplary costs. Even on

merits of the matter, he would contend that the petitioner knowing

full well that he was not the recipient of any property though he

claims, as he was a signatory to the partition deed, had uttered all

falsehood claiming ownership. Therefore, having uttered falsehood

before this court, the petitioner could not be permitted to go scot

free. He would seek dismissal of the petition.

7. I have given my anxious consideration to the submissions

made by the learned senior counsel and the respondent in person

and have perused the material on record.

8. The afore-narrated facts are a matter of record. Though it

would require elaboration in a little more detail, but, I deem it

appropriate to consider the threshold submission of the respondent

that the petition suffers from material suppression of facts and this

Court had already sealed the fate of the petitioner and, therefore,

the petition should not be entertained. It is not in dispute that the

petitioner preferred Writ Petition No.6713 of 2015 against an order

passed by the Deputy Commissioner who had vacated the interim

order earlier granted. It is the allegation that the said petition

contained all falsehood. Based on the allegation, a private

complaint is registered by the respondent in P.C.R.No.164 of 2015.

The learned Magistrate takes cognizance of the offence and

registers C.C.No.775 of 2015 in terms of his order dated 13-11-

2015. The petitioner then rushes to this Court immediately in

Criminal Petition No.7820 of 2015. This Court rejected the petition

in terms of its order dated 18-10-2016. The co-ordinate Bench

holds as follows:

".... .... .... ....

2. The gist of the case is that the respondent herein and the petitioner are brothers and are engaged in disputes over their ancestral property. It transpires that in incidental proceedings before this Court in its writ jurisdiction, a false statement is said to have been made by the petitioner in claiming that he had received a share in the property under a partition deed, whereas he had not received any such share and had only participated in having executed the said deed as a consenting witness while declaring that he had not received any share. This was pointedly brought to the attention of this Court in the writ proceedings by the respondent. It is claimed that he was advised to invoke the power of the jurisdictional Court in taking action in respect of any such false affidavit filed and it is in that background that the respondent has now initiated proceedings before the Court below alleging that a false document was filed in Court proceedings by the petitioner. The Court below having summarily registered the complaint on the basis of the sworn statement of the respondent and supporting witness, the petitioner is before this Court.

3. It is pointed out that there is a clear bar under Section 195(1)(b)(ii) of the Code of Criminal Procedure, 1973, (hereinafter referred to as 'the Cr.P.C.' for brevity) insofar as taking cognizance of an offence relating to a false document filed in Court proceedings and it is that Court alone, which would be competent to initiate proceedings in respect of any such false document and that a private complaint cannot be instituted on that basis.

4. However, the party appearing in person as respondent would place reliance on the judgment of a Constitutional Bench of the Supreme Court in Iqbal Singh Marwah and another v. Meenakshi Marwan and

another reported in ((2005) 4 SCC 370) and would draw attention to the concluding portion of the judgment, wherein after the discussion on the case law and the legal provisions, namely, Section 195(1)(b)(ii) of the Cr.P.C., the Supreme Court has held that Section 195(1)(b)(ii) of the Cr.P.C., would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e., during the time when the document was in custodia legis and that the bar created by the said Section would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the aggrieved party or party complaining. Therefore, the party- in-person would submit that he would clearly come under the second portion of the opinion expressed by the Constitution Bench and there is no embargo as sought to be contended by the petitioner. This is a question left open for consideration by the trial Court as the trial Court has merely registered the complaint and the same shall run its course. The decision cited above would appear to be in favour of the respondent- party- in-person.

The petition is, accordingly, disposed of."

(Emphasis supplied)

The finding of the co-ordinate Bench would directly hit the

petitioner. The finding is that the trial Court has merely registered

the complaint and the same should run its course. The judgment

relied on by the respondent appears to be in his favour and

recording the aforesaid finding, this Court disposes of the criminal

petition. The finding would clearly go against the petitioner. The

said order is not appended to the petition by the petitioner. The

petitioner, after disposal of the criminal petition supra, seeks his

discharge from the array of accused which comes to be rejected;

challenges the discharge before the revisional Court which also