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2021 DIGILAW 960 (KAR)

O. L. RAJENDRA SON v. STATE OF KARNATAKA

2021-11-25

M.NAGAPRASANNA

body2021
ORDER : The petitioner is before this Court calling in question the proceedings pending in C.C.No.224 of 2016 before the Judicial Magistrate First Class, Third Court, Davangere City initiated against the petitioner for offences punishable under Sections 465, 468 and 149 of the Indian Penal Code. 2. Brief facts leading to the filing of the present criminal petition, as borne out from the pleadings, are as follows: The petitioner is accused No.3 in the proceedings in C.C.No.224 of 2014. The Tahsildar of Davangere registers a complaint against one Sri K.H.Channabasappa alleging that the said Sri K.H. Channabasappa had applied for a certificate of alienation of lands in respect of Sy.No.118/2A., 2B, and 113/3 of Nituvalli village and Sy.No.110/3F of Anekonda Village. Though there was no order of conversion issued in favour of Sri K.H. Channabasappa, the accused created an order of conversion and had stolen an unsigned endorsement dated 4-01-2010 and consequently executed a registered sale deed on 20-02-2010. Based upon the aforesaid allegations, the Tahsildar registers a complaint before the jurisdictional Police. An FIR was registered based upon the said complaint in Crime No.44 of 2010 on 15.03.2010 for offences punishable under Sections 465, 468 read with Section 149 of the IPC. 3. The police on completion of investigation the respondent police have also filed a charge sheet against the accused for the offences punishable under Sections 378, 471 and 149 of the IPC which is now numbered as C.C.No.224 of 2014. The petitioner who is accused No.3 was a witness who had affixed his signature to the alleged deed of sale which is fraudulently executed in terms of the complaint. On the police filing an FIR, the petitioner filed an application seeking his discharge from the proceedings. The Court before whom the discharge application was filed allowed the application in part and discharged the petitioner for the offence punishable under Section 471 of the IPC and directed framing of charge in respect of offences punishable under Sections 379 and 149 of the IPC. The petitioner being aggrieved by the order refusing to discharge him from the proceedings preferred a revision petition before the District and Sessions Judge under Section 397 of the Cr.P.C. 4. The petitioner being aggrieved by the order refusing to discharge him from the proceedings preferred a revision petition before the District and Sessions Judge under Section 397 of the Cr.P.C. 4. The revisional Court by its order dated 03.02.2017 dismissed the revision petition and affirmed the finding of the trial Court in discharging the petitioner only in respect of offence punishable under Section 471 of the IPC and sustaining the other offences. The petitioner being aggrieved by the order dated 03.02.2017 and the order refusing to discharge him from proceedings has filed the subject petition calling in question the entire proceedings invoking the jurisdiction under Section 482 of the Code of Criminal Procedure. 5. Heard Sri Gangadhar R.Gurumath, learned senior counsel along with Sri Abhinay Y.T., learned counsel for the petitioner and Sri K.S.Abhijith, learned High Court Government Pleader for the respondents. 6. The learned senior counsel would submit that the petitioner is only an attesting witness to the document and there is no allegation of theft against him. The investigation conducted and the charge sheet filed is against accused No.1 who is alleged to have committed theft of the document from the office of the Tahsildar. Being an attesting witness, the petitioner cannot be tried for the offence under Section 379 which is for the offence of theft or even under Section 149 as the petitioner was not a party to any of the happenings in the scene of crime. 7. On the other hand, the learned High Court Government Pleader would submit that on conclusion of investigation, the Police have also filed charge sheet and what remains is only conduct of trial against the accused in which the petitioner can come out clean of the trial if he is not concerned with any offence and this Court at this juncture should not interfere with the order passed by the courts below. 8. I have given my anxious consideration to the submissions made by the learned senior counsel and the learned High Court Government Pleader and have perused the material on record. 9. The afore-narrated facts are not in dispute. The complaint lodged by the Tahsildar alleged fabrication of documents against the accused on 11-03-2010. The complaint reads as follows: 10. 8. I have given my anxious consideration to the submissions made by the learned senior counsel and the learned High Court Government Pleader and have perused the material on record. 9. The afore-narrated facts are not in dispute. The complaint lodged by the Tahsildar alleged fabrication of documents against the accused on 11-03-2010. The complaint reads as follows: 10. A perusal of the aforesaid complaint would indicate that two endorsements were issued by the Tahsildar to the effect that lands in the survey numbers found in the complaint were not converted. The endorsements were that no conversion orders were passed converting the lands from agriculture to non agricultural purposes. It is alleged that the document of conversion is created and a sale deed is also executed on 20.02.2010 and khata is likely to be transferred any time soon. 11. An investigation was sought to be conducted by the Police in terms of the aforesaid complaint pursuant to which an FIR came to be registered on 15.03.2010 for offences punishable under Sections 465, 468 and 149 of the IPC against several of the accused. That the complaint did not name any of the accused but the FIR came to be registered against the petitioner as accused No.3. Pursuant to the conduct of investigation, the Police have also filed the charge sheet against the petitioner for offences punishable under Sections 379, 471 read with 149 of the IPC. Column No.17 of the charge sheet reads as follows:- 12. A perusal of the afore-extracted column No.17 of the charge sheet would indicate in the aftermath of the investigation also the Police filed a charge sheet indicating that an endorsement was issued by the office of the Tahsildar that no conversion order was passed in respect the subject lands and on the same day the 8th accused stole the papers from the table of the Tahsildar, on 20-02-2010 created a document of conversion and executed a sale deed. Insofar as the petitioner is concerned there is no allegation that he is a party to any of these transactions. He is only arrayed as accused as he is an attesting witness. On filing of the charge sheet, the petitioner filed an application for discharge from the proceedings. The application for discharge was partly allowed concerning Section 471 and offences punishable under Sections 379 and 149 of the IPC were sustained to be tried. He is only arrayed as accused as he is an attesting witness. On filing of the charge sheet, the petitioner filed an application for discharge from the proceedings. The application for discharge was partly allowed concerning Section 471 and offences punishable under Sections 379 and 149 of the IPC were sustained to be tried. This was challenged before the Sessions Court by invoking Section 397 of the Cr.P.C. by filing criminal revision petition. The Sessions Court dismissed the revision petition filed by the petitioner notwithstanding the finding that no statement of witnesses has implicated the petitioner. Paragraphs 18 in the order in the revision petition reads as follows: “18. No doubt in the statement of the witnesses they have not stated that the present petitioner has stolen the said document. But, it is the specific case of the prosecution that all the accused in furtherance of their common object with an intention to create some documents, have stolen or committed theft of the unsigned endorsement dated 4-01-2010 from the office of Tahsildar, Davangere. So, that is sufficed to frame the charge against the present petitioner also. So, the learned Magistrate considering Section 300 of Cr.P.C., and the decision relied by the prosecution and also the charge sheet filed in this case for the offence punishable under Section 379 read with Section 149 of the IPC and the charge sheet filed before the Chitradurga JMFC court for different offences, has rightly hold that Section 300 of Cr.P.C. is not attracted to the present case. The learned Magistrate has discussed the provisions and considering the decisions relied by both the sides has rightly hold that there is material to frame the charge against the accused for the offence punishable under Section 379 r/w Section 149 of IPC. The decisions relied by the learned counsel for the revision petitioner are not come to the help of the revision petitioner. Taking into consideration all these aspects, I hold that the learned Magistrate has not committed any error in holding that there is material to frame the charge against the accused for the offence punishable under Section 379 read with Section 149 of IPC. So, impugned order does not require interference by this Court. Accordingly, I answer point No.1 in the negative.” (Emphasis added) 13. Section 3 of Transfer of Property Act, 1882 reads as follows: "3. So, impugned order does not require interference by this Court. Accordingly, I answer point No.1 in the negative.” (Emphasis added) 13. Section 3 of Transfer of Property Act, 1882 reads as follows: "3. Interpretation clause.—In this Act, unless there is something repugnant in the subject or context,— “immoveable property” does not include standing timber, growing crops or grass; ‘‘instrument” means a non-testamentary instrument; 1[“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;] “registered” means registered in 2[3[any part of the territories] to which this Act extends] under the law4 for the time being in force regulating the registration of documents; “attached to the earth” means— (a) rooted in the earth, as in the case of trees and shrubs; (b) imbedded in the earth, as in the case of walls or buildings; or (c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;" What can be gathered from Section 3 of the Transfer of Property Act is that two or more witnesses have seen the executant sign the instrument and in affirmation of this fact each of them have signed the instrument in the presence of the executant. Therefore, the witness cannot be seen to be privy to the contents of the document. The Apex Court in the case of M.L. ABDUL JABBAR SAHIB v. M.V. VENKATA SASTRI AND SONS 1969 (1) SCC 573 delineates the role of the witness to a document interpreting Section 3 of the Transfer of Property Act as follows: "7. Therefore, the witness cannot be seen to be privy to the contents of the document. The Apex Court in the case of M.L. ABDUL JABBAR SAHIB v. M.V. VENKATA SASTRI AND SONS 1969 (1) SCC 573 delineates the role of the witness to a document interpreting Section 3 of the Transfer of Property Act as follows: "7. Section 3 of the Transfer of Property Act gives the definition of the word “attested” and is in these words: “ Attested’ in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.” In the light of the judgment of the Apex Court an attesting witness need not be privy to the contents of the document unless he is signing the document in any other capacity. 14. The Apex Court in the latest judgment reported in M.SRIKANTH v. STATE OF TELANGANA (2019) 10 SCC 373 while affirming the finding of the High Court of Telangana which had quashed proceedings against attesting witnesses holds as follows: "26. We fail to understand, as to how after observing the aforesaid, the learned Judge could have refused to quash the proceedings against Accused 4. Not only that, but on the basis of the said observations, the learned Judge himself has observed that it will not be in the interest of justice to permit the police authorities to arrest the accused for the purposes of investigation. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and Accused 1 executing the lease deed on the basis of the said forged and fabricated documents were only against Accused 1, ought to have exercised his jurisdiction to quash the proceedings qua Accused 4 also. We are of the considered view, that the learned Judge, having found that the entire allegations with regard to forgery and fabrication and Accused 1 executing the lease deed on the basis of the said forged and fabricated documents were only against Accused 1, ought to have exercised his jurisdiction to quash the proceedings qua Accused 4 also. We find that the learned Judge ought to have applied the same parameters to the present Accused 4, which had been applied to the other accused whose applications were allowed. 27. Insofar as the criminal appeals arising out of the special leave petitions filed by the original complainant is concerned, we absolutely find no merit in the appeals. The learned Single Judge has rightly found that there was no material to proceed against Accused 5 — HPCL and its officers Accused 6 and 9 as also Accused 7 and 8, who have been roped in, only because they were the attesting witnesses. The learned Single Judge has rightly exercised his jurisdiction under Section 482 CrPC. 28. Insofar as original Accused 4 is concerned, we have no hesitation to hold, that his case is covered by categories (1) and (3) carved out by this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . As already discussed hereinabove, even if the allegations in the complaint are taken on its face value, there is no material to proceed further against Accused 4. We are of the considered view, that continuation of criminal proceedings against Accused 4, M. Srikanth, would amount to nothing else but an abuse of process of law. As such, his appeal deserves to be allowed." (Emphasis supplied) The Apex Court holds that HPCL and its officers/accused 6 and 9 as also accused 7 and 8, who have been roped into a criminal proceeding only because they were attesting witnesses. The Apex Court affirms the order passed by the High Court of Telangana quashing proceedings against attesting witnesses. 15. It is also germane to notice the judgment of the Apex Court in the case HEMKUNWAR BAI v. SUMERSINGH AND OTHERS, Civil Appeal No.8827 of 2011 decided on 25th September, 2019 with regard to the role of attesting witnesses in the execution of a document. 15. It is also germane to notice the judgment of the Apex Court in the case HEMKUNWAR BAI v. SUMERSINGH AND OTHERS, Civil Appeal No.8827 of 2011 decided on 25th September, 2019 with regard to the role of attesting witnesses in the execution of a document. The Apex Court holds as follows: “The main issue is whether Ratankuwarbai, who was an illiterate lady and suffering from cancer, has executed these documents or not. The defendants examined Antar Singh and Laxman Singh who are witnesses to all the three documents. As far as Laxman Singh is concerned, he clearly stated that at the time of registration of the sale deeds and the Will, the sub-Registrar concerned had read out the subject matter of the three documents in short to Ratankuwarbai. He also heard the sub-Registrar at that time. It has been contended that both these witnesses have stated that they were not aware of the contents of the documents, when they signed as witnesses. The witnesses need not necessarily know what is contained in the documents. Furthermore, when these witnesses state that the Sub-Registrar had told the gist of the documents to the deceased then they become aware of the nature of the documents at the time of registration thereon. In fact both Antar Singh and Laxman Singh had deposed with regard to transfer of the consideration.” (Emphasis supplied) 16. The Apex Court clearly holds that the witnesses need not necessarily know what is contained in the document except what was brought out in the evidence. But, the evidence in the case at hand even during the investigation does not divulge any other role of the petitioner beyond that is indicated in Column 17 of the charge sheet which no where mentions the name of the petitioner. The revisional Court also holds that no witness has stated that the petitioner is a party to any of the proceedings of crime. Having said so, the revisional Court ought to have discharged the petitioner for the offences punishable under Section 379 and 149 of the IPC, as without doubt the incidents narrated will not and cannot link the petitioner with the offence punishable under Section 379 or Section 149 of the IPC as he is only an attesting witness. Permitting the trial to continue against the petitioner would without doubt result in miscarriage of justice and an abuse of the process of law. Permitting the trial to continue against the petitioner would without doubt result in miscarriage of justice and an abuse of the process of law. Abuse of the process of law has several hues and forms. 17. The Apex Court in the case of CHANDRAN RATAN SWAMY V. K.C.PALANI SWAMY, (2013)6 SCC 740 while quoting the judgments rendered by the Supreme Court of England, has held as follows: "35. In Hui Chi-ming v. R. [(1992) 1 AC 34 : (1991) 3 WLR 495 : (1991) 3 All ER 897 (PC)], the Privy Council defined the word “abuse of process” as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case. 36. In the leading case of R. v. Horseferry Road Magistrates' Court, ex p Bennett [(1994) 1 AC 42 : (1993) 3 WLR 90 : (1993) 3 All ER 138 (HL)], on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances: (i) where it would be impossible to give the accused a fair trial; or (ii) where it would amount to misuse/manipulation of process because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of the particular case. 37. In R. v. Derby Crown Court, ex p Brooks [(1984) 80 Cr App R 164 (DC)], Lord Chief Justice Ormrod stated: “It may be an abuse of process if either (a) the prosecution has manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation of conduct of his defence by delay on the part of the prosecution which is unjustifiable.” …. …. …. …. ….. 39. …. …. …. ….. 39. This Court in State of Karnataka v. L. Muniswamy [ (1977) 2 SCC 699 : 1977 SCC (Cri) 404] , observed that the wholesome power under Section 482 CrPC entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The Court observed in this case that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. It was held in this case: (SCC p. 703, para 7) “7. … In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” (Emphasis supplied) The principal laid down in the aforesaid case has been followed in plethora of judgments by the Apex Court. 18. 18. In the light of the facts obtaining in the case at hand, the afore-quoted judgments of the Apex Court and the principles laid down therein, continuing the impugned proceedings against the petitioner would degenerate into harassment. This Court in exercise of its jurisdiction under Section 482 of Cr.P.C., would not permit such proceedings to continue which would result in miscarriage of justice or be an abuse of the process of the law. 19. For the aforesaid reasons, the following: ORDER i. Criminal Petition is allowed. ii. Proceedings in C.C.No.224/2014 pending before the J.M.F.C., III Court, Davanagere stands quashed qua the petitioner. The observation made in the course of this order is only for the purpose of consideration of the case under Section 482 of Cr.P.C., the same shall not bind or influence the criminal Court in the conduct of trial against any other accused.