IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.805/2013 BETWEEN B SUBBARAYAPPA, S/O LATE BYRAPPA, MAJOR, MUTHYALAPET, MULBAGAL TOWN, KOLAR DISTRICT, WORKING AS HEAD MASTER, KODENAHALLI VILLAGE, MULBAGAL TALUK, KOLAR DISTRICT-563129. ... PETITIONER (BY SRI B ANAND, ADV.) AND 1. F ABDUL KALEEM SHERISTEDAR PRINCIPAL CIVIL JUDGE & JMFC COURT MULBAGAL KOLAR DIST.-563129 2. STATE OF KARNATAKA ... RESPONDENTS (BY R-1 SERVED AND UNREPRESENTED, SRI NASRULLA KHAN, HCGP FOR R2.) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO QUASH ALL THE PROCEEDINGS IN C.C.NO.312/2012 ON THE FILE OF THE PRL. C.J. & J.M.F.C., MULBAGAL.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner has sought to quash the proceedings initiated against him in CC NO.312/2012 for the offences punishable under Section 192 and 193 of IPC.
2. A perusal of the complaint lodged by the first respondent indicates that, the petitioner herein was examined as a witness i.e. PW. 5 in CC No.135/2011. In his evidence, the petitioner deposed that, on 21.7.2012 he did not attend the duties in the School. Since the trial Court having found that the statement made by the witness was false on the face of it, the trial Court conducted an enquiry by calling for the records from the school authorities namely the attendance register and having ascertained that on 21.7.2012, the petitioner had in fact marked his attendance and has attended the duties in the school, directed prosecution of the petitioner under Section 192 and 193 of IPC. Accordingly, the Shirestedar lodged a complaint before the Prl.Civil Judge and JMFC under Section 200 of Cr.PC.
3. Learned counsel for the petitioner submits that, the procedure adopted by the learned Magistrate is not in accordance with the provisions of the code. The complaint in question was submitted under Section 190 of Cr.P.C. Under the said circumstance, the proper course required to be adopted by the learned Magistrate was to record the sworn statement of the complainant and his witnesses and record a finding to the effect that the petitioner namely the witnesses examined by the Court had knowingly and willingly given false evidence and should have taken recourse to Section 344 of the Code. Since in the instant case, the trial Court has not conducted any enquiry and has not recorded any finding so as to proceed against the petitioner for the alleged offence under Sections 192 and 193 of IPC the proceedings initiated against the petitioner are wholly illegal and amount to abuse of process of Court and is, liable to be quashed in exercise of the jurisdiction of this Court under Section 482 of Cr.PC.
4. Respondent no.1 is duly served and is unrepresented.
5. Learned HCGP has argued in support of the impugned action and has submitted that the procedure adopted by the learned Magistrate is in accordance with the provisions of the Code and therefore there no reason to quash the proceedings.
6. The contentions urged by the learned counsel for the petitioner, in my view, are not applicable to the facts of the case. Section 340 of Cr.PC deals with the procedure in cases in relation to the offences affecting administration of justice. The section reads as follows:
“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) 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.
(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;
(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.”
7. A bare reading of said provisions makes it clear that, on the application submitted by any of the parties, if Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence 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 either in respect of a document produced or given in evidence in a proceeding in that Court, and that Court may after such preliminary enquiry may resort to the following if it thinks necessary:
i) Record a finding to that effect;
ii) Make a complaint thereof in writing and send it to the Magistrate of First Class having jurisdiction.
8. In the instant case, the averments made in the complaint disclose that the learned Magistrate has held an enquiry by calling for attendance register from the School where the petitioner was working and having ascertained that the petitioner has deliberately given false evidence even though he had attended the duties on that day, found it proper to direct registration of the complaint under Section 340 of IPC. I do not find any illegality in the procedure adopted by the learned Magistrate.
9. The argument of Learned counsel for the petitioner that Section 344 of the Cr.PC. is applicable to the facts of this case cannot be accepted. The said provision operates in a different sphere. As per Section 344 of Cr.PC, if, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both.
10. This provision does not debar the Court from taking recourse to Section 340 of IPC. Sub-section (3) of Section 344 of Cr.PC makes this position further clear. Sub-section (3) of Section 344 reads as under:
“(3) Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section.”
11. In the light of above discussion, the contention urged by the petitioner is rejected.
Consequently, the petition is dismissed.
Sk/- CT-HR Sd/- JUDGE