Mr Vinay R Kulkarni Vs State of Karnataka by

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO SET ASIDE THE ORDER OF TAKING COGNIZANCE BY THE PRINCIPAL CIVIL JUDGE AND JMFC, DHARWAD IN PCR NO.337/2020 DATED 04.12.2020, FOR THE OFFENCE P/U/S 195-A OF IPC, WHICH IS NOW PENDING ON THE FILE OF LXXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-82) IN SPECIAL C.C.NO.1856/2021.

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THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CAV ORDER

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The petitioner is before this Court calling in question an order dated 04-12-2020 passed by the Principal Civil Judge and JMFC, Dharwad in P.C.R.No.337 of 2020 taking cognizance of the offence punishable under Section 195-A of the Indian Penal Code which is now pending in Special Case No.1856 of 2021 before the LXXXI Additional City Civil & Sessions Judge, Bengaluru City.

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Heard Sri C.V. Nagesh, learned senior counsel appearing for the petitioner and Sri P. Prasanna Kumar, learned Special Public Prosecutor appearing for the respondent.

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3. Facts, in brief, germane are as follows:-

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The history that is germane to consider the issue in the case at hand dates back to 15-06-2016. On 15-06-2016 a crime comes to be registered against unknown persons in Crime No.135 of 2016 in connection with the murder of one Yogesh Gowda, a political representative of the area. On completion of investigation, the Dharwad Sub-urban Police submitted charge sheet against six persons for offences punishable under Sections 143, 147, 148, 120B, 302, 201 r/w Section 149 of the IPC. The case was then committed to the Court of Sessions where it is numbered as S.C.50 of 2017. The trial against those six persons commenced. The Government of Karnataka entrusted the complaint for conduct of further investigation to the hands of the Central Bureau of Investigation (‘CBI’).

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During the course of investigation, the respondent/CBI is said to have found that the charge sheeted accused were not the ones who had actually assaulted and executed the murder of Yogesh Gowda but they were others. It was also found that accused

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No.1 who had surrendered had arranged eight other persons to commit the murder from another place and they were the actual assailants. The CBI then submitted its charge sheet. It was found that the eyewitnesses to the incident Sri Dattatreya, Sri Anand, Sri Mohan, Sri Vinayak and Kum. Lakshmi, CW-2 to CW-5 had turned hostile to the prosecution in their examination before the Court, which had began to try S.C.No.50 of 2017. It was then allegedly found that those witnesses were intimidated by the petitioner and accused Nos. 2 to 8 prior to their examination as eye witnesses before the Court.

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The allegation was that all those eye witnesses who were intimidated to turn hostile were all housed in a particular resort and the petitioner had visited the said resort at Goa. Based upon such intimidation which was said to have revealed in the further investigation by the CBI, the Investigating Officer placed a request before the learned Magistrate to take cognizance of the offence punishable under Section 120B, 341, 342 and 195A of the IPC. The learned Magistrate, before whom the said requisition was placed by the CBI, took cognizance as obtaining under Section 190(2) of the

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Cr.P.C. for the offences punishable under Section 195A of the IPC only against the petitioner and 7 other accused persons. Since the petitioner was a former Minister, the matter was transferred to the Special Court and the Special Court registers Special Case No.1856 of 2021. The petitioner now aggrieved by the said order of taking of cognizance by the concerned Court on 4-12-2020 is knocking at the doors of this Court in the subject petition.

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The learned senior counsel Sri C.V. Nagesh appearing for the petitioner would vehemently contend that there is a jurisdictional error in the Court of the learned Magistrate taking cognizance of the offence under Section 195-A of the IPC. The procedure stipulated under Section 340 of the Cr.P.C., which is mandatory is completely given a go-bye. It is his submission that it is only the concerned Court before which the proceedings were on must take cognizance of the offence under Section 195-A IPC. A complaint cannot be filed before an altogether different Court which was not privy of the evidence or any proceedings before it. Therefore, the order of taking cognizance without the Court having

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jurisdiction would cut at the root of the matter. He would seek quashment of entire proceedings.

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Per contra, the learned Special Public Prosecutor appearing for the CBI Sri P. Prasanna Kumar would refute the submissions to contend that for an offence under Section 195-A of the IPC there can be a complaint by any eye witness or any person before any forum which need not be that it should be by those persons or before the particular Court. He would seek to place reliance upon a judgment of the High Court of Calcutta reported in HOMNATH

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NIROULA v. STATE OF WEST BENGAL¹ .

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The learned senior counsel would join issue to contend that it is not the judgment of the High Court of Calcutta that would bind the issue, but the judgment of the Apex Court in the case of M.R. AJAYAN v. STATE OF KERALA² , covers the issue where the Apex Court considers this very issue and holds that it is only that Court, after following the procedure, can initiate proceedings against the person.

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1 2024 SCC OnLine Cal 7323

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2 2024 SCC OnLine SC 3373

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A coordinate Bench of this Court had passed the following

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interim order on 05-01-2024:

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“Learned counsel Sri.C.H.Hanumantharya appearing for the accused petitioner submits that one Mr.M.Gangadhara Shetty has been appointed as the Special Public Prosecutor, learned CBI counsel submits that he was not aware of this development and therefore the matter be adjourned to revert after having some conference. He also assures the Court that the proceedings in the Court below shall not be precipitated.

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Call this matter week after next.

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Petitioner to comply with office objections and this order to be released only after compliance and not otherwise.”

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When the matter came up for consideration before this Bench,

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elaborate interim order, after hearing the parties, was passed on 22-08-2024. The said order reads as follows:

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“Heard the learned Senior Counsel Sri. C.V. Nagesh appearing for the petitioner.

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The petitioner calls in question an order of the learned Magistrate taking cognizance of the offence punishable under Section 195-A of the Indian Penal Code, 1860 (for short IPC). The learned Senior Counsel would submit that Section 195-A of IPC the offence deals with threatening a person to give false evidence. Learned Senior Counsel submits that the procedure for an enquiry on an offence under Section 195 is stipulated in Section 340 of Code of Criminal Procedure, 1973 (for short Cr.P.C.).

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Section 195-A of IPC reads as follows:

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"195. Giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment - Whoever gives or fabricates false evidence intending thereby to cause, or knowing it to be likely that he will thereby cause, any person to be convicted of an offence which [by the law for the time being in force in [India] is not capital, but punishable with [imprisonment for life], or imprisonment for a term of seven years or upwards, shall be punished as a person convicted of that offence would be liable to be punished."

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Section 340 of Cr.P.C. reads as follows:

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"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,-

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(a) record a finding to that effect; (b) make a complaint thereof in writing;

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(c) send it to a Magistrate of the first class having jurisdiction; 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

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(d) bind over any person to appear and give evidence before such Magistrate.

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(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

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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.

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(3) A complaint made under this section shall be signed. –

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(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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(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.

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(4) In this section, "Court" has the same meaning as in section 195."

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The only difference that has cropped up in the year 2009 by way of an amendment to the Cr.P.C. is Section 195A coming in, by way of the amendment, it reads as follows:

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"195A. Procedure for witnesses in case of threatening, etc.- A witness or any other person may file a complaint in relation to an offence under section 195A of the Indian Penal Code (45 of 1860)."

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Section 195-A of the Cr.P.C. permits a witness or any other person to file a complaint in relation to offence punishable under Section 195-A of IPC supra .

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The submission of the learned Senior Counsel is that merely because permission is granted to a witness or any person to file a complaint, the procedure under Section 340 of Cr.P.C. cannot be given a go by for an offence punishable under Section 195 or 195-A of IPC.

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There is merit in what the learned Senior Counsel would contend. If the provisions of the statute quoted supra , is pitted against the order that is passed by the concerned

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Court taking cognizance of the offence, it would prima facie fall fowl of the statute. The learned Senior Counsel would further submit that the proceedings are to be before the concerned Court. The concerned Court in the case at hand is the Court of Session, the Special Court dealing with the matter. But the complainant -CBI in the case at hand registers a complaint before the learned Magistrate at Dharwad and cognizance is taken by the learned Magistrate.

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In the light of the lack of jurisdiction at the hands of the Court that has taken cognizance as also the procedure under Section 340 not being followed even to its semblance, I deem it appropriate to stall further proceedings before the concerned Court, qua the impugned offence, till the next date of hearing.

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List on 05-09-2024.”

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The afore-mentioned interim order is in subsistence even today.

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I have given my anxious consideration to the submissions

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made by the respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. The issue now lies in a narrow compass. The facts that led to registration of complaint before the Court of the learned Magistrate are narrated hereinabove. The impugned order of taking cognizance reads as follows:

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“ ORDER

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“Acting under Section 190(2)(a) of CrPC, cognizance is taken for the alleged offence punishable under Section 195-A of IPC against the accused No.1 to 8.

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Hence, office is directed to close the PCR and register the criminal case against the accused No.1 to 8 and issue summons to accused No. 1 to 8.

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Further office is directed to keep the CD in safe custody till further order.

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For: Appearance of accused

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Call on 2-01-2021.

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Sd/-

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SHRI.KURANI KANT DHAKU,

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PRINCIPAL CIVIL JUDGE & PRINCIPAL JMFC, DHARWAD.”

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Accused Nos. 1 to 8 against whom cognizance is taken are as

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follows:

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1. “SHRI VINAY RAJASHEKHARAPPA KULKARNI

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1. BASAVARAJ SHIVAPPA MUTTAGI,

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1. VIKAS RAMESH KULBURGI,

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1. SHRI. ERANNA NAGAPPA MALIWAD,

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1. BASAYYA THIKRAKAYA HIREMATH,

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1. BABU NINGAPPA KATAGI,

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1. AMITH RANGAPPA DODAMANI

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1. LOGENDRA S/O CHELVA KUMAR ALIAS BABU VK.”

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The cognizance is taken on a complaint preferred before the

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Principal Civil Judge and JMFC, Dharwad in P.C.R.No.337 of 2020.

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Therefore, it was taking of cognizance upon a private complaint

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registered for an offence under Section 195-A of the IPC. Section 195-A of the IPC reads as follows:

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“ 195-A. Threatening any person to give false evidence .—Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

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and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced.”

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For an offence to become punishable under Section 195A, procedure is stipulated under the Cr.P.C., as Section 195A of the IPC punishes a person who threatens a person to give false evidence before the Court. Therefore, what is required to be noticed is the procedure for such punishment. It is obtaining in Section 340 of the Cr.P.C. Section 340 of the Cr.P.C. reads as

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follows:

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" 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,

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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, -

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(a) record a finding to that effect;

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(b) make a complaint thereof in writing;

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(c) send it to a Magistrate of the first-class having jurisdiction;

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(d) take sufficient security for the appearance of 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

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(e) bind over any person to appear and give evidence before such Magistrate.

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(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.

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(3) A complaint made under this section shall be signed. –

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(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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(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.

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(4) In this section, "Court" has the same meaning as in section 195."

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Section 340 deals with procedure to be followed for Section 195. In the year 2009 an amendment springs to the Cr.P.C., by introduction of Section 195A. Section 195A of the Cr.P.C., deals with procedure for witnesses in case of threatening. A witness or any other person may file a complaint in relation to an offence under Section 195A of the IPC. Section 340 of the Cr.P.C., mandates a procedure by which an application should be made before the Court before which the proceedings have happened and if that Court is of the opinion that in the best interest of justice an inquiry should be made into any offence referred to sub-clause (b) of sub-section (1) of Section 195 it should conduct a preliminary inquiry and proceed further. Therefore, it is that very Court which is empowered to entertain such complaints and proceed further in the matter of offence punishable under Section 195A of the IPC.

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The issue in the case at hand is with regard to threatening of witnesses before the Court of Sessions. The complaint is preferred before the learned Magistrate which was not the Court before which those witnesses were examined. Therefore, the said Court had no jurisdiction to entertain the complaint and

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take cognizance of the offence. It is by now too well settled principle of law that introduction of Section 195A in the IPC or Section 195 in the Cr.P.C., would not obviate the procedure as obtaining under Section 340 of the Cr.P.C. The Apex Court in its latest judgment in the case of M.R. AJAYAN supra considers this issue and holds as follows:

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20. We now proceed to examine the second issue, which pertains to the bar of prosecution under Section 195(1)(b) of the Cr. P.C. It reads as:

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“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

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(1) No Court shall take cognizance —

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(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Penal Code, 1860, or

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(ii) of any abetment of, or attempt to commit, such offence, or

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(iii)of any criminal conspiracy to commit such offence,

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except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;…

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(b)(i) of any offence punishable under any of the following sections of the Penal Code, 1860, namely, section 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have

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been committed in, or in relation to, any proceeding in any Court, or

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(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

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(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (I) or sub-clause (ii),

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except on the complaint in writing of that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate .

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(2) Where a complaint has been made by a public servant under clause (a) of Sub-Section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint;

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Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

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(3) In clause (b) of Sub-Section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, provincial or State Act if declared by that Act to be a Court for the purposes of this section.

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(4) For the purposes of clause (b) of SubSection (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees or sentences of such former Court, or in the case of a civil Court from whose

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decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate;

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Provided that—

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a. where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

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b. where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.”

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21. The principles relating to prosecutions under Section 195 Cr. P.C., as expounded by this Court in SachidaNand Singh v. State of Bihar (3-Judge Bench )⁸ ; M.S. Ahlawat v. State of Haryana (3-Judge Bench )⁹ ; Iqbal Singh Marwah v. Meenakshi Marwah (5-Judge Bench )¹⁰ ; Perumal v. Janaki (2-Judge Bench )¹¹ ; and Sivamani (supra) are:

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i. The procedure prescribed under Section 195 Cr. P.C. is mandatory in nature.

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ii. The Section curtails the general right of a person and the general right of a Magistrate to register a complaint when the offences enumerated thereunder are committed.

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iii. The Section deals with three distinct categories of offences : (1) contempt of lawful authority of public servants, (2) offence against public justice, and (3) offence relating to documents given in evidence.

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iv. Broadly, the scheme of the Section requires that the offence should be such which has a direct bearing on the discharge of lawful duties of a public servant or has a direct correlation with the

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proceedings in a Court of justice, affecting the administration of justice.

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v. The provision only creates a bar against taking cognizance of an offence in certain specified situations except upon complaint by the Court.

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vi. To attract the bar under Section 195(1)(b), the offence should have been committed when the document was in “ custodia legis” or in the custody of the Court concerned.

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vii. The bar under Section 195(1)(b)(ii) cannot be thought to be applied when the forgery of a document has happened prior to its production in Court. The bar only applies in case the enumerated offence takes place after the production of the document or in evidence in any Court.

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viii. High Courts can exercise jurisdiction and power enumerated under Section 195 on an application being made to it or suo-motu, whenever the interest of justice so demands.

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ix. In such a case, where the High Court as a superior Court directs a complaint to be filed in respect of an offence covered under Section 195(1)(b)(i), the bar for taking cognizance, will not apply.

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22. In the instant case, the High Court, on the basis of the above bar on taking cognizance, has quashed the order taking cognizance and proceedings emanating therefrom. We are of the considered view, that this approach was not correct for the reasons set out below.

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23. At this stage, we must reiterate and re-emphasize the genesis of the proceedings in this case. On a perusal of the FIR, it is clear that based on the letter issued by the Kerala High Court dated 27^th September, 1994 and by the District Judge, Trivandrum, the offence was registered against the accused persons. The criminal proceedings clearly do not arise from a complaint by a private individual.

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24. Elaborating the law to the attending facts, we notice that this Court in Perumal (supra) had observed:

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“19. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate Court competent to entertain the appeals either from decrees or sentence passed by the original Court is treated to be a court concurrently competent to exercise the jurisdiction under Section 195(1). The High Courts being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such power either on an application made to it or suomotu whenever the interests of justice demand.”

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25. The above exposition came to be followed and expanded by this Court in Sivamani (supra), wherein it was observed:

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“12. …. While the bar against cognizance of a specified offence is mandatory, the same has to be understood in the context of the purpose for which such a bar is created. The bar is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person. The expression “the public servant or his administrative superior” cannot exclude the High Court. It is clearly implicit in the direction of the High Court quoted above that it was necessary in the interest of justice to take cognizance of the offence in question. Direction of the High Court is on a par with the direction of an administrative superior public servant to file a complaint in writing in terms of the statutory requirement. The protection intended by the section

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against a private person filing a frivolous complaint is taken care of when the High Court finds that the matter was required to be gone into in public interest. Such direction cannot be rendered futile by invoking Section 195 to such a situation. Once the High Court directs investigation into a specified offence mentioned in Section 195, bar under Section 195(1)( a ) cannot be pressed into service. The view taken by the High Court will frustrate the object of law and cannot be sustained.”

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(Emphasis supplied)

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26. The High Court differentiated the judgment of this Court in Sivamani (supra), to the facts of the case herein, stating that in this case, the final report came to be filed on the basis of an administrative order and not a judicial one. We are unable to agree with the reasoning of the High Court on this aspect.”

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(Emphasis supplied)

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Though the Apex Court holds that if it is interference with the administration of justice by forging the document of the Court or any other factor that finds its consideration in the said judgment, the question of locus standi would not become applicable. The issue in the case at hand is the Court before which the complaint ought to have been filed. The complaint if at all to be filed was to be filed before the Court before which it had jurisdiction to entertain the complaint for an offence under Section 195A of the IPC and not before a Court which did know what has happened before the other Court. Therefore, the issue lying in this narrow compass, the

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cognizance taken by the Court of the Magistrate would undoubtedly be an order without jurisdiction. The very complaint in P.C.R. No.337 of 2020 could not have been entertained by the learned Magistrate, as the offence was under Section 195A of the IPC and the procedure under Section 340 of the Cr.P.C., cannot be lost sight of by taking cognizance under Section 195A of the IPC. In that light, the very complaint and the order of taking cognizance are without jurisdiction and would resultantly be obliterated.

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13. For the aforesaid reasons, the following:

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O R D E R

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