Allowed

Libert a. Vaz v. the State of Karnataka

Karnataka HC6 Dec 2023CRL.P/102021/2022

Case brief

AI extract

What is this about?

The High Court quashed an order directing a complaint be filed against the petitioner without a preliminary enquiry under Section 340 Cr.P.C. It directed the Sessions Judge to register a new enquiry case, as findings of alleged tampering with court records warranted an opportunity for the accused to be heard.

What did the court decide?

Impugned order directing complaint filing quashed; separate miscarriage case under S. 340 Cr.P.C. to be registered for enquiry.

Libert a. Vaz Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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NC: 2023:KHC-D:14260 CRL.P No. 102021 of 2022

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 102021 OF 2022

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BETWEEN:

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LIBERT A. VAZ, AGE. 60 YEARS, OCC. SECOND DIVISION ASSISTANT, WORKING IN THE COURT OF CIVIL JUDGE, SAVANUR, DIST. HAVERI-581110.

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… PETITIONER

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(BY SRI. J.S. SHETTY, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY ITS PUBLIC PROSECTOR, HIGH COURT OF KARNATAKA, DHARWAD-581110.

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CHIEF ADMINISTRATIVE OFFICER, PRINCIPAL DISTRICT & SESSIONS COURT, HAVERI, DIST. HAVERI-581110.

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… RESPONDENTS

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPI Date: 2023.12.16 11:12:32 +0530

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(BY SRI. P.N. HATTI, HCGP FOR R1 & R2)

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THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO THAT THE ENTIRE CRIMINAL PROCEEDINGS IN CC NO.234/2017 (PRIVATE COMPLAINT NO.111/2017) OF THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HANGAL, FILED BY THE SECOND RESPONDENT AGAINST THE PETITIONER/ACCUSED NO.4 HEREIN, FOR THE OFFENCE PUNISHABLE U/S 191, 193, 194, 195, 463, 466 R/W SECTION 34 OF IPC, MAY KINDLY BE QUASHED, BY ALLOWING THIS CRIMINAL PETITION, IN THE ENDS OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed seeking quashing of the entire proceedings in C.C.No.234/2017 pending on the file of the Senior Civil Judge and JMFC, Hanagal, registered for the offences punishable under Sections 191, 193, 194, 195, 463 and 466 read with Section 34 of Indian Penal Code (hereinafter referred to as the “IPC”, for brevity).

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Heard learned counsel for the petitioner and learned High Court Government Pleader for respondents. 3. The respondent No.2, as per the directions of the learned Sessions Judge passed in S.C.No.28/2015 dated 18.09.2017 contained in para 31 of the said judgment has lodged complaint before the Senior Civil Judge and JMFC, Hangal. It came to be registered in P.C.No.111/2017. The said complaint came to be

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registered against this petitioner (accused No.4) and three others (accused Nos.1 to 3). As the respondent No.2 has filed complaint in the capacity of the public officer, learned

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Magistrate has dispensed with recording the sworn statement and took cognizance for the offences under Sections 191, 193, 194, 195, 463 and 464 read with Section 34 of the IPC and ordered to register criminal case against this petitioner and three others and accordingly, C.C.No.234/2017 has been registered and pending on the file of the Senior Civil Judge and JMFC, Hangal. The petitioner sought quashing of the said proceedings in C.C.No.234/2017.

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Learned counsel for the petitioner would contended that learned Sessions Judge without holding a preliminary enquiry as required under Section 340 of the Criminal Procedure Code (hereinafter referred to as the Cr.P.C.”, for brevity) has passed order directing respondent No.2 to file complaint against the petitioner and three others. On that point, he placed reliance on the decision of Co-ordinate Bench of this Court in case rendered on petitions filed by accused Nos.1 to 3 in Criminal Petition No.101524/202, Criminal Petition No.101303/2018 clubbed with Criminal Petition

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No.100237/2018. With these, learned counsel for the petitioner has prayed for quashing of the proceedings of the criminal case registered against the petitioner in C.C.No.234/2017.

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Per contra, learned High Court Government Pleader would contend that learned Sessions Judge while giving the findings in the judgments passed in S.C.No.28/2015 in paragraph 31 has opined that an enquiry should be made into an offence referred in Clause (b) of Sub Section (1) of Sec. 195 of Cr.P.C. against the petitioner and three others. He further contended that the proceedings against other three persons, who are accused Nos.1 to 3 in C.C.No.234/2017 have been quashed by this Court on the ground of the preliminary enquiry has not been held by learned Sessions Judge as required under Section 340 of the Cr.P.C. He further submits that the similar benefit can be given to the petitioner subject to holding of an enquiry against the petitioner in proceedings initiated under Section 340 of the Cr.P.C before the learned Sessions Judge.

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Learned Sessions Judge while disposing of S.C.No.28/2015 in the judgment dated 18.09.2017 has

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made following observations in paragraphs 22 to 31 as under:

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“22) PW.14 Dr.Kuri is the medical officer in Government hospital, Hangal and a responsible Government servant who is supposed to discharge his duty as per the norms known to law and he cannot act by favouring any of the parties. On the other hand, it appears from the evidence of PW.14 Dr.Kuri that he has totally forgotten his responsibility as a medical officer and as per his say he has made an endorsement as per Ex.P.24(a) on the alleged statement of the victim without her presence and he has shown disregard to such norms and it appears that he has acted in an irresponsible manner. He is also legally bound by an oath to state the truth only. Before starting to give evidence, he has taken oath before the court and while giving evidence, he has totally deviated from the evidence available on record and such of the materials would goes to show that PW.14 Dr. Nagaraj Kuri though he is legally bound by an oath to state truth only, but he has given a false evidence knowing fully well that it is a false and far away from truth. Such of his conduct of giving false evidence would constitute the offences punishable u/Ss.191 and 193 of IPC.

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Ex.D.1 is the certified copy of Ex.P.24 which is a statement of the victim Pavitra (Ex.D.1 and Ex.P.24 are the same documents) and after the arrest of the accused, for moving bail petition, they have obtained certified copy of the order sheet, statement of the victim Pavitra, FIR and bail petition was filed before the I Addl., District and Sessions Court at Haveri as Criminal Misc. No.386/2014 and the same was allowed on imposing conditions. The entire file of Crl. Misc. No.386/2014 has been called for reference in this case at

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the request of the learned defence counsel and the same is available on record.

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In Crl.Misc. No.386/2014, advocate for accused petitioner has produced the certified copy of the order sheet, FIR, copy of the statement of the victim Pavitra, copy of the order sheet and copy of the requisition sent by the Investigating Officer on 31.8.2014 for conversion of the case into one u/S.302 IPC. Among them, certified copy of the order sheet, FIR, statement of the victim were obtained from JMFC court, Hangal on 30.8.2014. Ex.D.1 is the certified copy of Ex. P.24 which is the statement of the victim Pavitra. In the same as on 30.8.2014, the endorsement" Taken infront of me, Sd/Dr.N.S.Kuri with seal of medical officer, Government hospital, Hangal" was not there on the original statement of the victim Pavitra. The said endorsement has been marked as Ex.P.24(a). Ex.P.24 is the original statement of the victim Pavitra. Ex.D.1 is its certified copy. If we read both Ex. P.24 and Ex.D.1 with bare eye, it is clear to the court that the aforesaid endorsement marked as Ex.P.24(a) has been inserted subsequent to 30.8.2014.

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Ex. P.26 is the FIR. On reading of the same, it is seen that PW.15 Abdul Khadar, then H.C. of Hangal police has registered the FIR on the basis of the statement of the victim as per Ex.P.24 on 28.8.2014 and on the same day at 5.05 p.m., FIR has been reached to the learned JMFC, Hangal. Along with the FIR, original statement marked as Ex.P.24 was also with the learned JMFC on 28.8.2014 at 5.05 p.m. Ex.D.1 certified copy of Ex. P.24 was taken by the advocate for accused on 30.8.2014 from the learned JMFC, Hangal and as on that date, Ex. P.24(a) endorsement was not appearing in Ex.P.24. It would goes to show that Ex.P.24(a) endorsement has been made by some of the interested persons while the document Ex.P.24 was in custody of the learned JMFC, Hangal. Such of the materials would clearly goes to show that while Ex.P.24 original statement of the victim was in custody of the court, some interested persons in collusion with the then pending clerk of the criminal

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branch of the learned JMFC, Hangal have created an endorsement as per Ex.P.24(a).

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Having reached to the conclusion that Ex.P.24(a) endorsement has been falsely created in collusion with the then criminal pending clerk of the learned JMFC, Hangal, I wanted to ascertain as to who are all have played mischief in creating the said endorsement as per Ex.P.24(a).

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On going through the evidence available on record, it is seen that PW.14 Dr. Nagaraj Kuri is the medical officer who has treated the injured Pavitra and as per the prosecution case, he has made an endorsement as per Ex.P.24(a), PW.15 Abdul Khadar was the S.H.O. and he has recorded the statement of the victim as per Ex.P.24 on 28.8.2014 and PW.18 Mahadeva Yeligar was the then P.S.I. of Hangal Police Station and he was incharge of the investigation of this case from 28.8.2014 to 1.9.2014. This court has secured the information as to who was the criminal pending clerk of Senior Civil Judge and JMFC court at Hangal during August 2014 and as per the information furnished by the learned JMFC, Hangal through their O.No.1011/2017 dated 25.7.2017, have submitted a report stating that from 1.6.2013 to 22.6.2015 one Mr.Libert A. Vaz S.D.A. (hereinafter referred as 'Vaz') was the criminal pending clerk of the said court. Along with the report, they have sent the Attendance Register and order sheet of the leaves availed by the staff of the said court. For convenient sake, it is marked as Ex.C.1. On reading of such materials, it is clear to the court that Vaz was the criminal pending clerk and he was in custody of the connected papers of this case at Hangal P.S. Cr.No. 126/2014.

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On perusal of the oral evidence of PW.14 Dr. Nagaraj Kuri, PW.15 Abdul Khadar and PW.18 Mahadeva Yeligar with the documents marked as Exs.D.1, D.2, Ex.P.23, Ex.P.24 and Ex.P.28, it is clear to the court that Ex.P.24(a) endorsement is not the original

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endorsement made at the time of recording the statement of the victim on 28.8.2014 as per Ex.P.24 and the same was subsequently created. Ex.P.24(a) reads as under;

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"Taken infront of me, Sd/- Dr.N.S.Kuri with seal of medical officer, Government hospital, Hangal"

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FIR Ex.P.26 was registered for the offences punishable u/Ss.498-A and 307 r/w. S.34 IPC. Evidence on record would goes to show that injured Pavitra died in KIMS Hospital at Hubli while taking treatment on 31.8.2014. In para 5 and 7 of his evidence, Investigating Officer - PW.18 has stated that he has received information on 31.8.2014 at 7.00 p.m., about the death of injured Pavitra while taking treatment in KIMS Hospital and on the same day night he has submitted written request to the JMFC, Hangal for conversion of the case into one u/S.302 IPC and later handed over the investigation to CW.26 - PW.17 then C.P.I. of Hangal.

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Ex.D.1 and Ex.D.2 would goes to show that on 30.8.2014 advocate for accused have obtained certified copy of Ex.P.24 and the same is marked as Ex.D.1. On reading of the same, it is seen that as on 30.8.2014, Ex.P.24(a) endorsement was not there on Ex.P.24 and such of the materials would goes to show that Ex.P.24(a) has been subsequently created by PW.14 Dr.Nagaraj Kuri, PW.15 Abdul Khadar and PW.18 Mahadeva Yeligar then P.S.I. in collusion with the pending clerk Vaz. Such of the materials would further goes to show that after conversion of the case into one u/S.302 of IPC in order to give more color to their case, PW.15 Abdul Khadar and PW.18 Sadev SESSI Yelgiar then P.S.I. appears to have hatched a plot for making such endorsement as per Ex.P.24(a) and in pursuance of such of their plot, they have prevailed upon PW.14 Dr.Nagaraj Kuri and Mr.Vaz then criminal pending clerk and ultimately they have forged and created such false endorsement as per Ex.P.24(a) in order to get conviction for such a severe charge u/S.302 IPC which is punishable with death or life imprisonment.

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NC: 2023:KHC-D:14260 CRL.P No. 102021 of 2022

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Admittedly after registering the FIR on 28.8.2014, the FIR Ex.P.26, statement of the victim Ex.P.24 with connected order sheet and other papers were in custody of Vaz, then criminal pending clerk of JMFC, Hangal. It would goes to show that the aforesaid persons have forged the record of the court in collusion with each other. Creation or forging the document or record of the court by the outsiders i.e., PWs.14, 15 and 18 in collusion with Vaz is a serious offence and the same has been committed by the aforesaid persons and for the aforesaid reasons coupled with the facts and circumstances of the case such of their act has been made as punishable for the offences u/Ss.194, 195, 463 and 466 r/w. S.34 IPC. Such of the illegal act of the aforesaid persons would be a penal act under the aforesaid provisions of Indian Penal Code and the same is to be enquired into by the jurisdictional magistrate. In that event, this court has to proceed as per the provisions of Sec. 195(1)(b)(i)(ii) and u/S.340 of Cr.P.C. The aforesaid persons have committed a serious crime by creating the court record and by looking to the facts and circumstances of the case, in my opinion it is expedient in the interest of justice that an enquiry should be made into an offence referred to in Clause (b) of Sub Section (1) of Sec. 195 of Cr.P.C. against the aforesaid persons and in view of my finding referred supra, there is no need of any preliminary enquiry by this court on that material aspect and accordingly I deem it proper to direct the Chief Administrative Officer of the District court, Haveri authorizing him to write a complaint in that regard and submit or send it to the jurisdictional magistrate i.e., Senior Civil Judge and JMFC at Hangal for taking appropriate action against the aforesaid persons as per law..”

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On perusal of the aforesaid observations made

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by learned Sessions Judge, there is an allegation against this petitioner having tampered the Court documents

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namely Ex.P.24, while it is in his custody. In para 31, the learned Sessions Judge has opined that an enquiry should be made into an offence referred in Clause (b) of Sub Section (1) of Sec. 195 of Cr.P.C against the petitioner and three others. Learned Sessions Judge further held that in view of his findings referred in paragraphs 22 to 31, there is no need of any preliminary enquiry and directed the Chief Administrative Officer of the District Court, Haveri, to lodge the complaint. On reading of sub-section (1) of section 340 of Cr.P.C holding of preliminary enquiry is necessary as the petitioner and three other persons were not given an opportunity of hearing.

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It is only after holding a preliminary enquiry to be held in separate miscellaneous case to be registered under Section 340 of the Cr.P.C. learned Sessions Judge can direct filing of the complaint, if it is held that the petitioner and three other have been committed offences under Section 191, 193, 194, 195, 463 and 464 read with Section 34 of the IPC as observed in paragraphs 22 to 31 of the judgment passed in S.C.No.28/2015.

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This Court on the petition filed by accused Nos.1 to 3 has quashed the order dated 18.09.2017 passed in S.C.No.28/2015 by Principal District and Sessions Judge, Haveri, insofar as it relates directing the Chief Administrative Officer of Principal District and Sessions Judge, Haveri, to file complaint under Section 195(1)(b)(i)(ii) and u/S.340 of Cr.P.C. and consequently, quashed the proceedings in C.C.No.234/2017 against the accused Nos.1 to 3. Petitioner herein also entitled to the said benefit of quashing proceedings in C.C.No.234/2017.

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On perusal of the orders passed by Co-ordinate Bench of this Court in the petitions referred (supra), the observations made by learned Sessions Judge in paragraphs 22 to 31 are not quashed or set-aside. The registration of the complaint by Chief Administrative Officer and consequently, the proceedings in C.C.No.234/2017 are quashed by the Co-ordinate Bench of this Court in the said three criminal petitions. Therefore, the observations made by learned Sessions in paragraphs

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22 to 31 remains, except the directions to the Chief Administrative Officer, to lodge a complaint.

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The present petitioner and three other persons were required to be given opportunity in an enquiry held against them to ascertain their involvement in commission of the offences punishable under Sections 191, 193, 194, 195, 463 and 464 read with Section 34 of the IPC as observed by learned Sessions Judge in paragraphs 22 to 31. Therefore, the enquiry is required to be held against this petitioner and three others in view of the observations of the learned Sessions Judge contained in paragraphs 22 to 31 of the judgment passed in S.C.No.28/2013 in separate proceedings which will be registered under Section 340 of the Cr.P.C. and enquiry should be held by learned Sessions Judge. Even the orders passed by the Co-ordinate Bench of this Court in three petitions filed by the accused Nos.1 to 3 is not impediment to hold enquiry against them also as observations of the learned Session Judge contained in paragraphs 22 to 31 are not set-aside

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by Co-ordinate Bench of this Court. In view of the above, the following:

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ORDER

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The petition is allowed.

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The impugned order dated 18.09.2017 passed in S.C.No.28/2015 by Principal District and Sessions Judge, Haveri, insofar as it relates directing the Chief Administrative Officer of Principal District and Sessions Judge, Haveri, to file complaint against the accused No.4 under Section 195(1)(b)(i)(ii) and u/S.340 of Cr.P.C. is hereby quashed.

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Consequently, the proceedings against the petitioner herein in C.C.No.234/2017 pending on the file of the Senior Civil Judge and JMFC, Hangal, stands quashed.

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Learned Principal District and Sessions Judge, Haveri, is directed to register a separate miscellaneous case under Section 340 of the Cr.P.C

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against this petitioner and three others (accused Nos.1 to 3 in C.C.No.234/2017) and hold enquiry and give opportunity to the petitioner and three others.

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Registry is directed to send copy of this order to the learned Principal District and Sessions Judge,

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Haveri, for compliance.

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Sd/JUDGE

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AC CT:BCK List No.: 1 Sl No.: 23

Libert a. Vaz v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Libert a. Vaz v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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