BASAPPA BASAVANTAPPA SUREBAN Vs. NINGANGOUDA DYAVANAGQUDA PATIL

JUDGEMENT

(1.) This petition under Sec.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 Secs. 193 and 455 of the I.P.Code.

(2.) The tacts 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 Accused 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-1) went to the house of the complainant Ningangouda and woke him up. He was arrested and handcuffed and brought to the Mudakavi Chawadi where false panchanamas 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-1 to A-4 and subsequently, A-1 being the Head-Constable, 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 disreputing him, filed the present complaint before the Magistrate saying that the four accused committed the offences of conspiracy under Sec.120-B read with Secs. 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 Sees 193 and 455 of the I.P.Code. However, in the opinion of the learned Magistrate, A-1 namely, Rajanikant J.Kakada, the Head-Constable, 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 accusd, committed error on two points-(1) under Sec. 195 of the Code of Criminal Procedure, in as much as the offence under Section 455 was so intermingled with the offence under Section 193 of the I.P.Code that no cognizance could be taken unless the prior complaint in writing by the Court was filed and, (2) under Sec. 170 of the Karnataka Police Act, A-2 to A-4 having accompanied the Head-Constable A-1, 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 Sec.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 CC.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 Sec.193 of the I.P.Code which was none else but preparation of the false panchanamas, 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 CrlLJ 1939. for the proposition that where offences are so intermingled 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 Sec. 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.Takkad v. B.J.Desai, CrIP 276/76 dt.3-8-76. 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 S.193 I.P.C. for which a complaint by court is necessary and the other under Ss.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 S.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 Sec.193 and the other under Sec.455 of the I.P.Code were committed, based on identical facts and circumstances, 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 Sec.455, prior complaint in writing by the Court was not required will not be correct in the circumstances of the case.