IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 13TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.1678 OF 2018 (T-RES) BETWEEN:
KRIPLANI. M PROPRIETOR M/S. NEXT GEN TECHNOLOGIES NO.863, 7TH MAIN, 3RD CROSS, HAL 2ND STAGE INDIRANAGAR, BENGALURU-560 008.
... APPELLANT (BY SRI. B A BELLIAPPA, ADVOCATE) AND:
1. THE STATE BY ITS SECRETARY DEPARTMENT OF REVENUE VIDHANA SOUDHA BENGALURU-560 001.
2. THE COMMISSIONER OF COMMERCIAL TAXES 1ST MAIN ROAD GANDHINAGAR, BENGALURU-560 009.
3. THE ADDL. COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT) SOUTH ZONE, 4TH FLOOR "B" BLOCK, VTK-2, 80 FEET ROAD, KORAMANGALA BENGALURU-560 047.
4. THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT)-1 SOUTH ZONE VTK-2, 80 FEET ROAD KORAMANGALA BENGALURU-560 047.
5. THE ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT)-4 SOUTH ZONE VTK-2, 80 FEET ROAD KORAMANGALA BENGALURU-560 047.
6. SMT. SHAILA RAVIKUMAR PRESENTLY WORKING AS ASSISTANT COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT)-4, SOUTH ZONE VTK-2, 80 FEET ROAD KORAMANGALA BENGALURU-560 047.
7. THE STATE PUBLIC INFORMATION OFFICER OFFICE OF THE ADDITIONAL COMMISSIONER OF COMMERCIAL TAXES (ENFORCEMENT), SOUTH ZONE, VANIJYA THERIGE KARYALAYA-2 80 FEET ROAD KORAMANGALA BENGALURU-560 047.
8. S. M. SRINIVAS DCCT ENFORCEMENT-1 SOUTH ZONE VANIJYA THERIGE KARYALAYA-2 80 FEET ROAD KORAMANGALA BENGALURU-560 047.
9. MR. MANJUNATHASWAMY ACCT ENFORCEMENT-9 SOUTH ZONE VANIJYA THERIGE KARYALAYA-2 80 FEET ROAD KORAMANGALA BENGALURU-560 047.
(BY SRI. VIKRAM HUILGOL, HCGP.) ... RESPONDENTS THIS APPEAL IF FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.26717/2017 IN I.A.1/2018 DATED 04/04/2018.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, RAVI MALIMATH J., DELIVERED THE FOLLOWING:
JUDGMENT I.A.No.1 of 2018 was filed by the petitioner in Writ Petition No.26717 of 2017 with a prayer that the respondents – Department have filed a false affidavit before the Court and therefore, action should be initiated against them for having committed perjury in Court.
2. The learned Single Judge was of the view, that the petitioner having already been given an opportunity by the order dated 11.09.2017 to avail his remedies before the proper authorities, rejected the application. The said order is sought to be questioned in this appeal.
3. Learned counsel for the appellant submits that I.A.No.1 of 2018 was filed by the petitioner under Sections 340 and 195 of the Code of Criminal Procedure seeking initiation of appropriate action against respondent Nos.1 to 5 and 7 on the ground that they have furnished false evidence in the form of an affidavit. The settled position is that the Court has to grant the relief on considering the said application and if it finds that it should consider the application, should itself act as a complainant in terms of the procedure laid down therein. However, the application is rejected by holding that adequate opportunity has been given to the appellant and therefore, the question of considering the application after final decision of the case would not arise. I.A.No.1 of 2018 is not considered on merits. It has been rejected on the ground that the petitioner has already been given an adequate opportunity to avail his remedies before the proper authorities.
4. In our considered view, the learned Single Judge was entitled on facts to reject the I.A. No.1 of 2018 as being bereft of merits. However, that has not been done. It is rejected on the ground of an alternate remedy. This is an infraction of law. It is that Court alone, on considering the application would have to itself decide the application as per the procedure envisaged in the Code of Criminal Procedure.
5. Under these circumstances, the writ appeal is allowed. The impugned order dated 04.04.2018 passed on I.A.No.1 of 2018 in Writ Petition No.26717 of 2017 is set aside. I.A.No.1 of 2018 is restored to file for fresh consideration on facts and law by the learned Single Judge.
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JUDGE JUDGE NG* CT:bms