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Basappa Basavantanpa Sureban and ors. Vs. Ningangouda Dyavanagouda Patil - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1978CriLJ460
AppellantBasappa Basavantanpa Sureban and ors.
RespondentNingangouda Dyavanagouda Patil
Excerpt:
.....one of such cases, as pointed out by their lordships, is the one where the complaint suffers from fundamental legal defect such as want of sanction or absence of a complaint by legally competent authority and the like. 6. in this view of the matter, the order made by the learned magistrate is obviously illegal and must be set aside in order to prevent the abuse of the process of the court as well as to preserve the ends of justice, the petition is, therefore, allowed and the order of the magistrate is set aside......of conspiracy under section 120-b read with sections 196, 193, 455 and 167 of the i. p. code. the learned magistrate considered the complaint and ultimately thought that prima facie the three accused a-2 to a-4 could be summoned for the offences under sections 19s and 455 of the i. p. code. however, in the opinion of the learned magistrate, a-l namely, rajanikant j. kakade, the head cons table, could not be proceeded against, as he was performing his public duty and hence he could not be summoned for any of the offences alleged against him. as such a-l was discharged. being dissatisfied with the order of the learned magistrate, the present petition is filed by a-2 to a-4.3. sri. b. v. deshpande, the learned counsel for the petitioners, submitted that the learned magistrate who issued.....
Judgment:
ORDER

D.B. Lal, J.

1. This petition Under Section 482 of the Code of Criminal Procedure, 1973, is directed against the order of the Judicial Magistrate First Class, Ramdurg, in C.C. No. 801 of 1976, dated 30-12-1976, issuing process against petitioners-accused for the offences Under Sections 193 and 455 of the I. P. Code.

2. The facts giving rise to the present petition are these: A private complaint was filed by one Ningangouda, respondent, against Rajanikant J. Kakade, head Constable of Ramdurg Police Station and these three petitioners-accused alleging that A-4 was doing police and revenue patilki service of Mudakavi village and, as such, had some rivalry with the complainant Ningangouda, who was the revenue watandar patel. Accordingly, A-4 being friendly to Rajanikant J. Kakade, the Head-Constable, both of them conspired to disrepute the complainant so that he would be rendered unfit for the patilki service. With that object in view, the three petitioners and Rajanikant J. Kakade, the Head-Constable, concocted a false police complaint by one Bailappa, alleging that some gold ornaments and cash of Rs. 500/- were stolen from his house and that the complainant Ningangouda was harbouring Basappa, the accused, of that theft case. Accordingly, on 3-5-1975, the three petitioners (A-2 to A-4) and Rajanikant J. Kakade (A-l) went to the house of the complainant Ningangouda and woke him up. He was arrested and hand-cuffed and brought to the Mudakavi chawadi where false panchnamas were written. It was mentioned that the complainant produced the gold ornaments, as well as some cash out of the properties stolen. These false documents were prepared at the instance of A-l to A-4 and subsequently, A-l being the Head-Const able submitted the charge-sheet and C. C. 170 of 1975 was instituted in the Court of the Magistrate. The trial in that case took place and ultimately it was found that no offence was made out and the accused were acquitted. After the acquittal of the accused in that case,, the complainant Ningangouda considering that the previous case set up against Basappa was false and frivolous and the complainant Ningangouda was made an instrument to facilitate the investigation in that case with the avowed object of disrupting him, filed the present complaint before the Magistrate saying that the four accused committed the offences of conspiracy Under Section 120-B read with Sections 196, 193, 455 and 167 of the I. P. Code. The learned Magistrate considered the complaint and ultimately thought that prima facie the three accused A-2 to A-4 could be summoned for the offences Under Sections 19S and 455 of the I. P. Code. However, in the opinion of the learned Magistrate, A-l namely, Rajanikant J. Kakade, the Head Cons table, could not be proceeded against, as he was performing his public duty and hence he could not be summoned for any of the offences alleged against him. As such A-l was discharged. Being dissatisfied with the order of the learned Magistrate, the present petition is filed by A-2 to A-4.

3. Sri. B. V. Deshpande, the learned counsel for the petitioners, submitted that the learned Magistrate who issued the process against the three accused, committed error on two points (1) Under Section 195 of the Code of Criminal Procedure, inasmuch as the offence Under Section 455 was so intermingled with the offence Under Section 193 of the I.P.C. Code that no cognizance could be taken unless the prior complaint in writing by the Court was filed and, (2) Under Section 170 of the Karnataka Police Act, A-2 to A-4 having accompanied the Head-Constable A-l, in furtherance of the performance of his public duty, were the other persons accompanying the police officer, and the entire offence being committed in the same transaction, the prosecution could not be entertained except with the previous sanction of the Government.

While elaborating his argument under the first point referable to Section 195 of the Code of Criminal Procedure, the learned counsel relied upon the very complaint case filed by Ningangouda. In that complaint, it was emphasized at more than one place that all the four accused acted conjointly and the common object was to fabricate false panchanamas in order to implicate Ningangouda so that he was disreputed. It was stated that A-4 was friendly to A-l and similarly A-2 and A-3 were henchmen of A-4. All the four accused conspired to foist a false criminal case involving the complainant in the theft case. Accordingly, A-l brought them to the house of the complainant, who was arrested and handcuffed and thereafter the complainant was taken to the Mudakavi chawadi and the false panchanamas were prepared. Therefore, the entire occurrence was one and the same transaction. All the accused acted conjointly and their avowed object was to use the panchanamas as evidence in C.C. 170 of 1975 to serve the double purpose of getting the conviction of the accused in that case and also to get the conviction of the complainant Ningangouda being in league with that accused. According to the complainant, the objective of these four accused ultimately failed and the accused in that case were acquitted. Therefore, it is more than clear that the offence Under Section 193 of the I. P. Code which was none else but preparation of the false panchanama, which was subsequently used in a criminal case was part and parcel of the other events that arose in the case, namely, the visit of the four accused to the house of Ningangouda, the arrest of the latter and disrespect shown to him, ultimately leading to the preparation of the false panchanama. In fact, the preparation of the false panchanama could not be separated from the other course of conduct imputed against the accused. In fact, the entry was effected in the house to procure the false documents. What else could be the objective? The learned counsel, therefore, relied on Chandra Kishore Jha v. State of Bihar (1975 Cri LJ 1939) (Pat) for the proposition that where offences are so inter-mingled with each other that it is impossible to separate them for trial in respect of any particular offence which does not attract the provisions of Section 195 (1) (b), it is not open to a court to proceed with the trial of some offences only by dropping charges for other offences attracting that section. This decision was followed by me in G. K. Tacked v. B. J. Desai (Criminal Petn. No. 276 of 1976 decided on 3-8-1976 (Kant)). The learned counsel also relied on the decision In re V. V. L. Narasimhamurthy (AIR 1955 Mad 237) for a similar proposition. It was held that where on the facts disclosed in the complaint two offences are made out, one, Under Section 193 I.P.C. is necessary and the other Under Sections 467 and 471 I.P.C. for which a complaint by court is not necessary, the party should not be allowed to evade the provision relating to a complaint by court. In such a case the court should not take cognizance of the complaint unless there is a complaint by court as required by Section 195 (1) (b).

The contention of the learned counsel for the respondent that the act of entry into the house and thereafter handcuffing of Ningangouda, were separate from the subsequent act of the writing of the panchanama, in my opinion, will not be correct. As per allegations made in the complaint, the entire transaction was one and, in fact, one action could not stand independent of the other. As evident, the object was to create false evidence against Ningangouda and with that objective all the four accused entered his house and committed these acts. Therefore, if two offences, one Under Section 193 and the other Under Section 455 of the I. P. Code were committed, based on identical facts and cir- cumstances, it was difficult to separate the trial of one from the other. If a prior complaint in writing was required for one of the two offences, it was similarly required for the other offence. The finding of the learned Magistrate that for the offence Under Section 455, prior complaint in writing by the Court was not required will not be correct in the circumstances of the case.

4. The second point urged by Sri B. V. Deshpande related to Section 170 of the Karnataka Police Act. According to that section, even for a case of an alleged offence against such other person who accompanies the police officer who performs the public duty, previous sanction of the Government is required. Under the scheme of that section, the police officer and other persons accompanying him in the performance of his public duty required the previous sanction before prosecution can be instituted against them. A-2 to A-4 were no doubt assisting A-l in the performance of his public duty. They had gone with him to stand witness for the panchanama. Similarly, as previous sanction of the Government was required for A-l, the case of A-2 to A-4 was also covered in the category of 'complaint persons' as mentioned in Section 170. For their prosecution as well the previous sanction of the Government was needed and such a sanction was not taken, the prosecution could not be entertained. Therefore, on this point also, there was an error in the order of the learned Magistrate as he could not summon the accused and could not entertain the prosecution against them.

5. In the last, the learned counsel for the respondent referred to Section 482 of the Code of Criminal Procedure and appealed to the restricted jurisdiction of the High Court. According to the learned counsel the interference could only be made in a case of abuse of process of the Court. The learned Magistrate, contended the learned counsel, considered the case carefully. He thought it fit to issue the process and, therefore, this Court should be reluctant to interfere with the order. In that connection, a reference was made to Nagawwa v. Veeranna Shivalingappa Koujalgi, 1976 (2) Kant LJ 1. In that case their Lordships were dealing with the order of the Magistrate issuing process in a complaint case and categorized certain cases in which the order of the Magistrate issuing process could be quashed or set aside by the Court. One of such cases, as pointed out by their Lordships, is the one where the complaint suffers from fundamental legal defect such as want of sanction or absence of a complaint by legally competent authority and the like. It was pointed out on behalf of the petitioner that the present case would fall under that category. It was certainly a case where a fundamental legal defect was committed by the learned Magistrate inasmuch as Section 195 of the Code of Criminal Procedure was not cared for and Section 170 of the Karnataka Police Act was ignored. The question regarding want of sanction arose with reference to Section 170 of the Karnataka Police Act, There was absence of a complaint by legally competent authority Under Section 195 of the Code of Criminal Procedure. Therefore, the present case appears to be directly covered under this decision of the Supreme Court.

6. In this view of the matter, the order made by the learned Magistrate is obviously illegal and must be set aside in order to prevent the abuse of the process of the Court as well as to preserve the ends of justice, The petition is, therefore, allowed and the order of the Magistrate is set aside. The present proceedings against the petitioners-accused may, therefore, be quashed.


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