IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S. DIXIT WRIT PETITION No.26309/2019 & WRIT PETITION No.28702/2019 (GM-CPC) BETWEEN :
M/s. Applesoft No.39, 1st Main, 1st Cross, Shivanagar, West of Chord Road, Bengaluru-560 010 (by Sri N. Anbarasan, CEO GPA Holder Age 56 years S/o. M. Narasimhalu, Proprietor) … PETITIONER (By Dr. S. Krishnamurthy, Adv.) AND :
1. The Director General, Centre for Development of Advanced Computing (C-DAC) Pune University Campus, Ganesh Khind, Pune-411 007 2. The Director, CDAC Corporate Office, Agriculture College Campus, Near District Industries Centre, Shivajinagar, Pune-411 005 3. The Secretary to Government, Department of Information Technology, Ministry of C & I Technology, Electronics Niketan, 6, CGO Complex, New Delhi-110 003. … RESPONDENTS (By Sri Ashok G.V., Advocate for R1 and R2; Sri B.S. Pramod, CGC, for R3) These Writ Petitions are filed under Article 227 of the Constitution of India with a prayer that based on the express position of law on issues adverted to in this writ petition coupled with documentary evidence on hand along with facts narrated herein to call for records of the case O.S. No.8799/2012 (XXIX ACC & SJ Bangalore) including the two IA’s X/2016 and XII/2017 all dismissed together on 23.03.2019 from the relevant Court and to set aside the impugned order on the said case of the said two IA’s delivered on 23.03.2019 to ensure justice and fair play in the said suit O.S.No.8799/2012 by XXIX ACC and SJ and Annexure-A.
These Writ Petitions coming on for Preliminary Hearing this day, the Court passed the following;
O R D E R The petitioner being plaintiff in O.S. No. 8799/2012 is invoking the writ jurisdiction of this Court for assailing the order dated 23.03.2019 made by the learned XXIX Additional City Civil and Sessions Judge, Bengaluru City, a copy where of is at Annexure A whereby his application filed under the provisions of Section 340 Cr.P.C., 1973 read with Section 151 CPC for taking steps against D.W.1 & others for deposing falsely in the Court below has been rejected.
2. At the stage of preliminary hearing the contesting respondent Nos.1 & 2 having entered appearance through their counsel suo motto oppose the writ petition on the ground of availability of alternate and equally efficacious appellate remedy as provided under Section 341 of Cr.P.C., which reads as under:
“(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (*1) or sub-Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.”
3. Having heard the learned counsel for the parties and having perused the petition papers this Court declines to grant indulgence in the matter since the petitioner has, as rightly pointed out by the learned counsel for respondents, a remedy of statutory appeal, that is, Section 341 of Cr.P.C. and petitioner has not offered any explanation as to why he should invoke the writ jurisdiction instead of invoking appellate jurisdiction.
4. The contention of the petitioner that since Fundamental Rights of the petitioner have been violated, the writ petition is maintainable is misconceived in view of the co decision of the Apex Court in the case of NARESH SHRIDHAR MIRAJKAR & OTHERS VS. STATE OF MAHARASHTRA, AIR 1967 SC 1, wherein, para no. 38 reads as under:
“(38). The argument that the impugned order affects the fundamental rights of the petitioners under Art. 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decisions. When a Judge deals with matters brought before him for his adjudication, he first decides questions of fact on which the parties are at issue, and then applies the relevant law to the said facts. Whether the findings of fact recorded by the Judge are right or wrong, and whether the conclusion of law drawn by him suffers from any infirmity, can be considered and decided if the party aggrieved by the decision of the Judge takes the matter up before the appellate Court. But it is singularly inappropriate to assume that a judicial decision pronounced by Judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Art. 19(1). What the judicial decision purports to do is to decide the controversy between the parties brought before the Court and nothing more. If this process is borne in mind, it would be plain that the judicial verdict pronounced by Court in or in relation to a matter brought before it for its decision cannot be said to affect the fundamental rights of citizens under Art. 19(1).”
In the above circumstances, the writ petitions being devoid of merits are disposed relegating the petitioner to the alternate remedy, all contentions of the parties having been kept open.
It is needless to mention that the period spent in prosecuting this writ petition shall be discounted while computing the period of limitation prescribed by law for preferring the appeal.
No costs.
Sd/- JUDGE LRS.