IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA WRIT PETITION NO.17775/2015(GM-RES) BETWEEN:
MR. C. MAHESH KUMAR S/O LATE SHRI. CHIKKAIAH LIFE TRUSTEE & FINANCIAL ADMINISTRATOR M/S TADIKELA SUBBAIAH TRUST (R) - SHIMOGA AGED ABOUT 50 YEARS RESIDENT OF “AVVANA MANE”, GANDHINAGAR, BADHRAVATHI SHIVAMOGGA DISTRICT-577301 ... PETITIONER (By Sri. M S SHYAM SUNDAR, ADVOCATE) AND:
1.THE STATE OF KARNATAKA BY JAYANAGAR POLICE STATION SHIMOGA TOWN, SHIMOGA-5773012.
2.SHRI T SUBBARAMAIAH , S/O LATE SHRI SUBBAIAH AGED ABOUT 75 YEARS CHAIRMAN & MANAGING TRUSTEE M/S TADIKELA SUBBAIAH TRUST (R), SUBBAIAH HOSPITAL, JAIL ROAD SHIVAMOGGA CITY-577 301 ... RESPONDENTS (By Sri.DILDAR SHIRALLI, HCGP P FOR R1; Sri.S.B. TOTAD, ADVOCATE FOR CAVEATOR/RESPONDENT NO.2) THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE PROCEEDINGS BEFORE THE III ADDL. CIVIL JUDGE & JMFC, SHIMOGA IN PCR.NO.609/2015 VIDE ANNEX-A TO THE PETITIONER AND RESULTANT FIR IN CRIME NO.41/2015 DTD.16.4.2015 VIDE ANNEX-B ON THE FILE OF THE R-1 POLICE STATION viz., JAYANAGAR POLICE STATION, SHIMOGA.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for petitioner, learned counsel for respondent No.2 and learned HCGP for respondent No.1. Perused the records.
2. The respondent herein presented a private complaint under Section 340 and 195(b)(i) of Cr.P.C. seeking a direction to the Shirasthedar of the Court of III Additional Civil Judge and JMFC, Shivamogga, to proceed in accordance with the order dated 24.01.2015 in Cr.No.476/2014 passed by the JMFC.II, Shivamogga.
3. In a proceeding in Crime No.476/2014, the petitioner herein moved an application seeking better treatment during his custody. Along with the said application, he produced a medical certificate said to have been issued by Jayadeva Institute of Cardiology, Bengaluru. On considering the said document, the learned JMFC-II passed the following order:-
“The only contention urged by the accused is that his ill-health did not permit him to appear before the I.O. and co-operate with the investigation. I have carefully went through all the medical records produced by the parties. In the report of the District Surgeon, Mc Gann Hospital, Shivamogga, it was stated that the accused has intermittent typical cardiac chest pain and requires immediate evaluation, where cath-lab facility is available. When he was shifted to Jayadeva Trinity Cardiac CT Centre, Bangalore, he has merely complained chest pain and on examination no serious ailment was detected. It is further reported that patient was not willing for CAG examination and after dignose some tablets were prescribed and he was discharged and sent back to prison hospital. But in this court, he has produced a report of Jayadeva Cardica Centre, Bangalore, wherein an handwriting advice was inserted to get treatment in Multi Speciality Hospital of Cardiology and Nephrology. On the basis of the said report, this Court has ordered to shift him to Bhagwan Mahaveer Jain Hospital, Bangalore, for treatment. Later it is said to have revealed that the accused herein manipulated the medical reports issued by the Jayadeva Cardiac Centre, Bangalore and inserted “advised to get the treatment in put Multi Speciality Hospital of Cardiology and Nefrology”. In this regard, the I.O. obtained certified copy of the report dated 8.12.2014, in which the above writing is not found. The accused neither appeared before this Court nor appeared before the I.O. even after the discharge from the Mahaveer Jain Hospital, Bangalore. The certified copy of the report dated 8-12-2014 clearly indicates that the accused No.1 himself inserted the above sentence to the medical report to mislead this Court and admitted to a Multi Speciality Hospital. The records also show that he was admitted to a Special ward to escape from the detention in the prison. Learned counsel appearing for the accused also unable to give a proper explanation for the alleged fraudulent act of the accused. Therefore, at this stage there are strong reasons to believe that the accused himself manipulated the medical records and fraudulently misled this Court and obtained an order dated 11-12-2014. It is pertinent to note that the manipulation of the records and other medical records clearly show that the accused No.1 is not suffering from any type of serious ailments and he can appear before the I.O. and co-operate with the investigating officer.”
Based on the above order, the second respondent, a private individual, approached the learned Magistrate under Section 340 of Cr.P.C. seeking for a direction to the Shirasthedar to take action against the petitioner.
4. Section 340 of Cr.P.C. deals with the procedure in respect of the offences 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. As per the said Section, if the Magistrate dealing with the case is of the opinion that any offence has been committed in respect of a document produced or given in evidence before him, after conducting such preliminary enquiry, if any, as he thinks necessary, he shall (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.
5. The order referred to above clearly indicates that the learned Magistrate did not find it expedient to proceed against the accused under Section 340 of Cr.P.C. That being the case when a third party invoked Section 340 of Cr.P.C., the learned Magistrate ought to have applied his mind to the facts whether such a complaint is tenable in view of the bar contained under Section 195 of Cr.P.C. Unfortunately, the learned Magistrate on receiving the complaint referred the matter for investigation under Section 156(3), the relevant order reads as under:-
“The matter is referred to Jayanagar PSI for investigation under Section 156(3) of Cr.P.C. Call for a report by 12.6.”
The learned Magistrate has not applied his mind to the facts and he has not even bothered to see whether such a complaint was in accordance with the requirements of Section 195 of Cr.P.C. Therefore without expressing any opinion on the legal contentions urged by the learned counsel for the petitioner, the impugned order dated 15.04.2015 is set aside. The matter is remanded to the learned Magistrate to reconsider the complaint afresh in the light of the observations made in this order and thereafter proceed in accordance with law.
All the legal contentions are left open for consideration at the appropriate stage.
Sd/- JUDGE *alb/-.