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2023. KHC:22553 WP No.11639 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE28H DAY OF JUNE, 2023 BEFORE THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION No.11639 OF2023(GM-RES) BETWEEN: SRI. RAGHAVENDRA A S/O R.ARASAIAH AGED ABOUT49YEARS WORKING AS SENIOR SUB REGISTRAR, OFFICE OF SENIOR SUB REGISTRAR, BASAVANAGUDI, BANGALORE - 560004. …PETITIONER (BY SRI. SATISH K., ADVOCATE) AND:
1. THE STATE BY BASAVANAGUDI POLICE STATION REPRESENTED BY INSPECTOR OF POLICE, BASAVANAGUDI, BANGALORE-560004.
2. SRI.B.N. SREEKANTASWAMY S/O LATE K.S. NAGARAJA RAO AGED ABOUT63YEARS RESIDING AT NO.186/1, 3RD CROSS, 'D' ROAD, 2ND PHASE, IDEAL HOMES TOWNSHIP, RAJARAJESHWARI NAGAR, BANGALORE-560098. …RESPONDENTS (BY SRI. MAHESH SHETTY, HCGP FOR R1; SRI. B.N. SREEKANTASWAMY, PARTY-IN-PERSON - R2) THIS WP IS FILED UNDER ARTICLE226OF THE CONSTITUTION OF INDIA READ WITH SECTION482OF - 2 - NC:
2023. KHC:22553 WP No.11639 of 2023 CR.P.C., PRAYING TO QUASH THE IMPUGNED PCR No.8217/2016 (ANNX-Q) IMPUGNED FIRST INFORMATION REPORT IN CRIME NO.195/2016 DTD0109.2016 (ANNX-D) AND IMPUGNED
ORDERDTD2004.2023 PASSED IN CC NO.11657/2017 PENDING ON THE FILE OF HONBLE CHIEF METROPOLITAN MAGISTRATE COURT BANGALORE (ANNX-H) IN SO FAR AS IT RELATES TO THE PETITIONER IS CONCERNED (PROPOSED ACCUSED NO.6) AND ALL FURTHER PROCEEDINGS PURSUANT THERETO AND ETC. THIS PETITION, COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDERThe petitioner is before this Court calling in question order dated 20-04-2023 passed by the Chief Metropolitan Magistrate, Bengaluru in C.C.No.11657 of 2017 by which the petitioner is sought to be dragged into the case on an application filed by the prosecution under Section 319 of the Cr.P.C.
2. The facts, in brief, adumbrated are as follows: The petitioner at the relevant point in time was working as Senior Sub-Registrar, Basavanagudi Division, Bengaluru. When so functioning, the petitioner is said to have registered gift deeds brought before him in terms of the Act and the Rules i.e., Registration Act, 1908 and the Karnataka Registration Rules, 1965. The petitioner leaves the post after having - 3 - NC:
2023. KHC:22553 WP No.11639 of 2023 worked for two years at the said place. After the petitioner moving out of the said post, a private complaint comes to be registered by one B.N. Sreekantaswamy, the complainant against members of the family as also the petitioner who was arrayed as accused No.4. The learned Magistrate refers the matter under Section 156(3) of the Cr.P.C., for investigation at the hands of the jurisdictional Police. This, then becomes a crime in Crime No.195 of 2016 for offences punishable under Sections 463, 464, 465, 468, 471, 420 r/w 34 of the IPC. The Police conduct investigation and lay a charge sheet against all the accused except the petitioner. To say that the petitioner was dropped from the array of accused, the police did not file any charge sheet against him but cited him as a witness – CW- 7.
3. The other accused, on the ground that the petitioner had been dropped from the array of accused, knocked at the doors of this Court seeking quashment of entire proceedings on the ground that the issue was purely civil in nature. The other accused were accused Nos. 1 to 3 who filed Criminal Petition No.8744 of 2018. The said petition was dismissed by a co- ordinate Bench of this Court on 14-03-2023 holding that it was - 4 - NC:
2023. KHC:22553 WP No.11639 of 2023 a matter of trial for those accused to come out clean. While so doing, the Co-ordinate Bench reserved right in the prosecution to proceed against the petitioner under Section 319 of the Cr.P.C., subject to all statutory compliance. The petitioner who was cited as a witness in the proceedings was permitted to be brought in as an accused subject to statutory compliance that is necessary for invoking and allowing an application under Section 319 of the Cr.P.C. Pursuant to the order passed by this Court, an application came to be filed by the prosecution under Section 319 of the Cr.P.C., quoting the order passed by this Court to array the petitioner as accused instead of him being a witness – CW-7. The concerned Court by its order dated 20th April, 2023 issues notice to the petitioner on the application made by the prosecution to arraign him as accused No.6 in the aforesaid case. The moment notice is issued, the petitioner has knocked at the doors of this Court in the subject petition.
4. Heard Sri.Satish K., learned counsel appearing for the petitioner, Sri.Mahesh Shetty, the learned High Court Government Pleader appearing for respondent No.1 and Sri. B.N.Sreekantaswamy, party-in-person - respondent No.2.-. 5 - NC:
2023. KHC:22553 WP No.11639 of 2023 5. The learned counsel representing the petitioner would contend that what the petitioner did in the year 2013 was registering two gift deeds in favour one Smt. B.N. Parvati and her mother Smt. B.N. Kamalamma and the deeds were executed by Smt. B.N. Sharadamba. It is his submission that the petitioner had no role to play in the contents of the documents. They were brought before him and in terms of the Act and the Rules he has registered those documents. Therefore, there was no warrant for the concerned Court to issue notice even on the application under Section 319 of the Cr.P.C. He would further contend that merely because this Court had permitted the trial Court to bring in the petitioner, it was subject to statutory compliance, and it would be in terms of what the Apex Court has held. The other submission is that, the private complaint filed by the 2nd respondent/complainant did not accompany an affidavit as is necessary in law and therefore, the private complaint was not maintainable and the order directing the petitioner to be brought into the proceedings would again be illegal as genesis of the problem itself was not maintainable.-. 6 - NC:
2023. KHC:22553 WP No.11639 of 2023 6. On the other hand, the 2nd respondent/complainant who has appeared in person would seek to refute every one of the submissions made by the learned counsel for the petitioner. He would contend that the Sub-Registrar/petitioner did not register gift deeds in his office. He was called for private attendance. He is said to have visited the house of Smt. B.N. Sharadamba, taken her signatures and registered the documents thereon in favour of two other sisters. The 2nd respondent would submit that on the days the petitioner claims to have gone to the house of Smt. B.N. Sharadamba she was in ICU in the hospital and would submit that he has produced documents to that effect and, therefore, a fraud has been played by the Sub-Registrar in registering the two gift deeds. He would submit that it is a matter for trial for the petitioner to come out clean and he is rightly added as an accused by the trial Court.
7. The learned counsel for the petitioner would now join issue to contend that the private attendance is also a permitted exercise in law and that a Sub-Registrar in a given circumstance can go to the Executant, if the Executant is incapacitated to come to the office. It is his emphatic - 7 - NC:
2023. KHC:22553 WP No.11639 of 2023 submission that the petitioner has taken the thumb impressions/signatures of Smt. B.N. Sharadamba only and there is no dispute about it.
8. The learned High Court Government Pleader would toe the lines of the prosecution to contend that it is for the petitioner to come out clean and would seek dismissal of the petition.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and 2nd respondent and have perused the material on record. In furtherance whereof, the issue that falls for consideration is, ‘whether there was sufficient material against the petitioner to invoke Section 319 of the Cr.P.C. and bring in him as accused No.6 in place of him being a witness – CW-7’.
10. Before embarking upon consideration of facts of the case qua Section 319 of the Cr.P.C., I deem it appropriate to notice the line of law laid down by the Apex Court elucidating an exercise of power under Section 319 of the Cr.P.C. A Constitution Bench of the Apex Court rendered its judgment on - 8 - NC:
2023. KHC:22553 WP No.11639 of 2023 05-12-2022 in the case of SUKHPAL SINGH KHAIRA v. STATE OF PUNJAB1. After consideration of the entire spectrum of law, the conclusions drawn are as follows: “39.(I) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order?. The power under Section 319CrPC is to be invoked and exercised before the pronouncement of the order of sentence where there is a judgment of conviction of the accused. In the case of acquittal, the power should be exercised before the order of acquittal is pronounced. Hence, the summoning order has to precede the conclusion of trial by imposition of sentence in the case of conviction. If the order is passed on the same day, it will have to be examined on the facts and circumstances of each case and if such summoning order is passed either after the order of acquittal or imposing sentence in the case of conviction, the same will not be sustainable. 40.(II) Whether the trial court has the power under Section 319CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial?. The trial court has the power to summon additional accused when the trial is proceeded in respect of the absconding accused after securing his presence, subject to the evidence recorded in the split-up (bifurcated) trial pointing to the involvement of the accused sought to be summoned. But the evidence recorded in the main concluded trial cannot be 1 (2023) 1 SCC289- 9 - NC:
2023. KHC:22553 WP No.11639 of 2023 the basis of the summoning order if such power has not been exercised in the main trial till its conclusion. 41.(III) What are the guidelines that the competent court must follow while exercising power under Section 319CrPC?. 41.1. If the competent court finds evidence or if application under Section 319CrPC is filed regarding involvement of any other person in committing the offence based on evidence recorded at any stage in the trial before passing of the order on acquittal or sentence, it shall pause the trial at that stage. 41.2. The court shall thereupon first decide the need or otherwise to summon the additional accused and pass orders thereon. 41.3. If the decision of the court is to exercise the power under Section 319CrPC and summon the accused, such summoning order shall be passed before proceeding further with the trial in the main case. 41.4. If the summoning order of additional accused is passed, depending on the stage at which it is passed, the court shall also apply its mind to the fact as to whether such summoned accused is to be tried along with the other accused or separately. 41.5. If the decision is for joint trial, the fresh trial shall be commenced only after securing the presence of the summoned accused. 41.6. If the decision is that the summoned accused can be tried separately, on such order being made, there will be no impediment for the court to continue and conclude the trial against the accused who were being proceeded with. 41.7. If the proceeding paused as in para 41.1 above, is in a case where the accused who were tried are to be acquitted, and the decision is that - 10 - NC:
2023. KHC:22553 WP No.11639 of 2023 the summoned accused can be tried afresh separately, there will be no impediment to pass the judgment of acquittal in the main case. 41.8. If the power is not invoked or exercised in the main trial till its conclusion and if there is a split-up (bifurcated) case, the power under Section 319CrPC can be invoked or exercised only if there is evidence to that effect, pointing to the involvement of the additional accused to be summoned in the split-up (bifurcated) trial. 41.9. If, after arguments are heard and the case is reserved for judgment the occasion arises for the Court to invoke and exercise the power under Section 319CrPC, the appropriate course for the court is to set it down for re-hearing. 41.10. On setting it down for re-hearing, the above laid down procedure to decide about summoning; holding of joint trial or otherwise shall be decided and proceeded with accordingly. 41.11. Even in such a case, at that stage, if the decision is to summon additional accused and hold a joint trial the trial shall be conducted afresh and de novo proceedings be held. 41.12. If, in that circumstance, the decision is to hold a separate trial in case of the summoned accused as indicated earlier: (a) The main case may be decided by pronouncing the conviction and sentence and then proceed afresh against summoned accused. (b) In the case of acquittal the order shall be passed to that effect in the main case and then proceed afresh against summoned accused.” (Emphasis supplied) - 11 - NC:
2023. KHC:22553 WP No.11639 of 2023 Five Judge Bench of the Apex Court lays down guidelines for the competent Court to follow while exercising power under Section 319 of the Cr.P.C., The Apex court holds that if the Court would feel on evidence that the application filed under Section 319 with regard to involvement of any person on the basis of evidence recorded at any stage in the trial before passing the order of acquittal or sentence, it shall pause the trial at that stage, call upon, by issuance of summons, to the additional accused and follow the procedure on the appearance of the accused. What would emerge from the guidelines laid down, is that, if during the trial at any stage if one is to be brought in as accused in terms of the evidence, the Court shall pause the trial, issue summons and then continue the trial after arraigning of the said accused. Therefore, it is the power that is available, which has to be exercised cautiously and not in a routine manner. The said judgment is followed by the Apex Court in the case of VIKAS RATHI v. STATE OF U.P.2 wherein it is held as follows: “9. The principles of law with reference to exercise of jurisdiction under 319 Cr. P.C. are well settled.
10. The Constitution Bench in Hardeep Singh's case (supra), opined as under:— 2 2023 SCC Online SC211- 12 - NC:
2023. KHC:22553 WP No.11639 of 2023 “105. Power u/s 319 CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the magistrate or the sessions judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence laid before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus we hold that though only a prima facie case is to be established from the evidence laid before the court, not necessarily tested on the anvil of cross- examination, it requires much strong evidence that near probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power u/S319CrPC”. (emphasis supplied) …. …. ….
15. One of the arguments raised by learned counsel appearing for the parties was that in the case in hand, the High Court instead of appreciating the material placed on record by the parties in the form of evidence to find out as to whether a case was made out for summoning of the appellant as an additional accused, remitted the matter back to the trial court for consideration afresh. Remand in such a matter will only result in prolonging the litigation. The High Court only recorded that reasons assigned by the trial court for rejecting the application were not sufficient. To avoid delay, it would have been - 13 - NC:
2023. KHC:22553 WP No.11639 of 2023 proper exercise of power in case the High Court would have considered the material and opine as to whether a case was made out for summoning of additional accused. Whatever reasons have been recorded by the trial court in the order so passed, may not have been happily worded to the satisfaction of the High Court, but that error could have been corrected in exercise of revisional power.” (Emphasis supplied) The Apex Court further holds that there should be sufficient material to bring in an accused back into the web of trial or any other accused into the web of crime who has been dropped while filing the charge sheet or who was never an accused in a case.
11. It is again followed in JUHRU v. KARIM3. The usage of power under Section 319 of the Cr.P.C. is further elucidated in the said judgment in the following paragraphs: “11. Section 319 CrPC contemplates that: “319. Power to proceed against other persons appearing to be guilty of offence.— (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
12. Illuminating the scope of Section 319CrPC, the Constitution Bench of this Court in Hardeep Singh v. State 3 (2023) 5 SCC406- 14 - NC:
2023. KHC:22553 WP No.11639 of 2023 of Punjab [Hardeep Singh v. State of Punjab, (2014) 3 SCC92: (2014) 2 SCC (Cri) 86]. laid down that : (SCC pp. 126 & 138, paras 57 & 105-106) “57. Thus, the application of the provisions of Section 319CrPC, at the stage of inquiry is to be understood in its correct perspective. The power under Section 319CrPC can be exercised only on the basis of the evidence adduced before the court during a trial. So far as its application during the course of inquiry is concerned, it remains limited as referred to hereinabove, adding a person as an accused, whose name has been mentioned in Column 2 of the charge-sheet or any other person who might be an accomplice. *** 105. Power under Section 319CrPC is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from the evidence led before the court, not necessarily tested on the anvil of cross-examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319CrPC. In Section 319CrPC the purpose of providing if ‘it - 15 - NC:
2023. KHC:22553 WP No.11639 of 2023 appears from the evidence that any person not being the accused has committed any offence’ is clear from the words ‘for which such person could be tried together with the accused’. The words used are not “for which such person could be convicted”. There is, therefore, no scope for the court acting under Section 319CrPC to form any opinion as to the guilt of the accused.” (emphasis in original) 13. This Court has very recently, in Sukhpal Singh Khaira v. State of Punjab [Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC289 (2023) 1 SCC (Cri) 454]. , succinctly explained the powers bestowed on the Court under Section 319CrPC and ruled that : (SCC p. 300, para
15) “15. At the outset, having noted the provision, it is amply clear that the power bestowed on the Court is to the effect that in the course of an inquiry into, or trial of an offence, based on the evidence tendered before the Court, if it appears to the Court that such evidence points to any person other than the accused who are being tried before the Court to have committed any offence and such accused has been excluded in the charge-sheet or in the process of trial till such time could still be summoned and tried together with the accused for the offence which appears to have been committed by such persons summoned as additional accused.
14. In Hardeep Singh [Hardeep Singh v. State of Punjab, (2014) 3 SCC92: (2014) 2 SCC (Cri) 86]. , it has been eloquently held that the word “evidence” in Section 319CrPC has to be broadly understood and thus materials which have come before the court in course of enquiry can be used for: (i) corroboration of evidence recorded by court after commencement of trial; - 16 - NC:
2023. KHC:22553 WP No.11639 of 2023 (ii) for exercise of power under Section 319CrPC; and (iii) also to add an accused whose name is shown in Column 2 of the charge-sheet. It was further explained that statement made in examination-in-chief also constitutes “evidence” and the court while exercising power under Section 319CrPC post commencement of trial, need not wait for evidence against person proposed to be summoned, to be tested by cross-examination.
15. In Sukhpal Singh Khaira [Sukhpal Singh Khaira v. State of Punjab, (2023) 1 SCC289: (2023) 1 SCC (Cri) 454]. , the Constitution Bench refreshed the guidelines that the competent court must follow while exercising power under Section 319CrPC. It was ruled that:
15. 1. If the competent court finds evidence or if application under Section 319CrPC is filed, regarding involvement of any other person in committing the offence based on evidence “recorded at any stage in the trial” before passing of the order on acquittal or sentence, it shall pause the trial at that stage and the court shall proceed to decide the fate of the application under Section 319CrPC. 15.2. If the court decides to summon an accused under Section 319CrPC, such summoning order shall be passed before proceeding further with the trial in the main case and depending upon the stage at which the order is passed, the trial court shall apply its mind to the fact as to whether such summoned accused is to be tried along with other accused or separately. 15.3. If the power under Section 319CrPC is not invoked or exercised in the main trial till its conclusion and if there is a split-up case, such power can be invoked or exercised only if there is evidence to that effect, pointing to the involvement - 17 - NC:
2023. KHC:22553 WP No.11639 of 2023 of the additional accused to be summoned in the split-up (bifurcated trial).
16. It is, thus, manifested from a conjoint reading of the cited decisions that power of summoning under Section 319CrPC is not to be exercised routinely and the existence of more than a prima facie case is sine qua non to summon an additional accused. We may hasten to add that with a view to prevent the frequent misuse of power to summon additional accused under Section 319CrPC, and in conformity with the binding judicial dictums referred to above, the procedural safeguard can be that ordinarily the summoning of a person at the very threshold of the trial may be discouraged and the trial court must evaluate the evidence against the persons sought to be summoned and then adjudge whether such material, more or less, carry the same weightage and value as has been testified against those who are already facing trial. In the absence of any credible evidence, the power under Section 319CrPC ought not to be invoked. ... … …. D. Conclusion 20. In light of the above discussion, we are of the considered view that while summoning of Appellant 1 sustains, but that of Appellants 2 and 3 will be far-fetched and they cannot be subjected to trial on the basis of mere strong suspicion. The High Court order under challenge is accordingly set aside qua Appellants 2 and 3.
21. Having held that Appellant 1 has been rightly summoned and is liable to be tried along with his son and wife, the next question that requires consideration is as to the manner in which the trial will proceed hitherto. (Emphasis supplied) - 18 - NC:
2023. KHC:22553 WP No.11639 of 2023 This is again reiterated in the case of JITENDRA NATH MISHRA v. STATE OF U.P4, wherein it is held as follows: “9. Section 319, Cr.P.C., which envisages a discretionary power, empowers the court holding a trial to proceed against any person not shown or mentioned as an accused if it appears from the evidence that such person has committed a crime for which he ought to be tried together with the accused who is facing trial. Such power can be exercised by the court qua a person who is not named in the FIR, or named in the FIR but not shown as an accused in the charge-sheet. Therefore, what is essential for exercise of the power under section 319, Cr. P.C. is that the evidence on record must show the involvement of a person in the commission of a crime and that the said person, who has not been arraigned as an accused, should face trial together with the accused already arraigned. However, the court holding a trial, if it intends to exercise power conferred by section 319, Cr. P.C., must not act mechanically merely on the ground that some evidence has come on record implicating the person sought to be summoned; its satisfaction preceding the order thereunder must be more than prima facie as formed at the stage of a charge being framed and short of satisfaction to an extent that the evidence, if unrebutted, would lead to conviction.” (Emphasis supplied) On a coalesce of the judgments rendered by the Apex Court as quoted hereinabove, what would unmistakably emerge is that, the power available to the concerned Court should be exercised cautiously, not in a routine manner; based upon the 42023 SCC OnLine SC726- 19 - NC:
2023. KHC:22553 WP No.11639 of 2023 evidence and necessity for bringing in a person back into the web of crime/trial.
12. On the bed rock of the aforesaid principles elucidated by the Apex Court the case at hand requires to be noticed. The petitioner as Sub-Registrar goes to private attendance to the house of Smt. B.N. Sharadamba who executes two gift deeds on 11-03-2013 and 14-03-2013 – one in favour of Smt.B.N.Parvati, her sister and another in favour of her mother B.N.Kamalamma. The petitioner is said to have secured thumb impressions of Smt. B.N.Sharadamma on those gift deeds and is said to have registered the same in the private residence. The complainant is the brother of Smt. B.N.Sharadamba who has a claim over the property and by executing the gift deeds, the submission of the 2nd respondent is that, several other rights are created without the knowledge of the complainant, all because of the act of the petitioner in registering those gift deeds.
13. The documents produced would indicate that Smt. B.N. Sharadamba, the executants of the gift deeds on the particular days i.e., between 11-03-2013 and 14-03-2013 for - 20 - NC:
2023. KHC:22553 WP No.11639 of 2023 three days was hospitalized. Therefore, the issue is where did the petitioner take thumb impression of Smt. B.N.Sharadamba, as Smt. B.N.Sharadamba was hospitalized on those days on which she is said to have executed gift deeds. Alleging this foul play, the 2nd respondent registers a complaint once he comes to know of the fact of spiraling rights being created and his rights being taken away on the strength of gift deeds executed by his sister, as legal notices were caused upon the complainant with regard to the rights of Smt. B.N. Parvati and Smt. B.N.Kamalamma. All these, the complainant comes to know after the death of Smt. B.N. Sharadamba, the executant of the gift deeds. It is, therefore, the said private complaint comes to be registered. Certain paragraphs of the private complaint are germane to be noticed and are extracted for the purpose of quick reference: “10. The complainant submits that, the First Accused in the legal notice made the claim based on the alleged fraudulent Gift Deed purported to have been executed by Late.B.N.Sharadamba, in favour of the First Accused herein, on 11.03.2013, presented by the First Accused On 12.03.2013 before the Office of the Sub, Registrar, Basavanagudi, Bangalore-560 004, registered as the document No.BSG-1-07044/2012-13, Book-1, and stored in C.D. No.BSGD200 dated 13.3.2013. The copy of the said notice is produced herewith as Document No.1. It is pertinent to state that, Late.B.N. Sharadhamba is the elder sister of the - 21 - NC:
2023. KHC:22553 WP No.11639 of 2023 Complainant as well as the elder sister of the First Accused. 11.It is submitted that, the fraudulent Gift Deed came to the knowledge of the complainant for the first time only when the complainant received the aforesaid legal notice 10.02.2016. The complainant replied to the said notice, on 24.02.2016. The. Copy of the reply notice is produced herewith as Document No.2. The certified copy of the gift deed dated 11.03.2013 alleged to be executed by Late.B.N.Sharadhamba in favour of the First Accused is produced herewith as Document No.3.
12. It is submitted and relevant to state that, in pursuance thereof the First Accused has later filed a suit for possession against the complainant in 0.S.No.2018/2016, and the suit is now pending adjudication. The certified copy of the plaint is produced herewith as Document No.4.
13. The complainant submits that, the complainant filed the written statement and counter claim in the aforesaid suit, and he is contesting the above case on merits and in accordance with law. The Complainant has sought for many reliefs inter alia as consequential relief for the cancellation of the alleged Gift Deed dated 11.3.2013 more fully described is Supra. The written statement filed by the complainant is produced herewith as Document No.5
14.The complainant submits that, on the receipt of the legal notice as described in supra, the Complainant made his best efforts, i.e., discreet enquiry to ascertain the truth, in respect of the legality of the Gift Deed, physical and mental condition of Late, B.N. Sharadhamba during the alleged execution of the fraudulent Gift Deed. The complainant discovered the fraudulent act on the part of all the four Accused. The manner of the offenses committed by the Accused is more fully described hereunder.
15. The complainant submits that, the First Accused filed a suit for possession as stated in supra, in respect of the same scheduled property, - 22 - NC:
2023. KHC:22553 WP No.11639 of 2023 O.S. 2018/2016 and in the said suit it is an admitted fact that the complainant is in the possession of the said property bearing No.89, R.V.Road, Basavanagudi, Bangalore-560 004, and the complainant carrying on the profession as an Advocate.
16. The Complainant submits that, the alleged fraudulent Gift Deed is said to have been executed on 11.03.2013 and the donor Late. B.N. Sharadhamba is said to have been residing at No.89, R.V. Road, Bengaluru-560004.
17. The said fact is contrary to the averments in the plaint O.S. 2018/2016, filed by the First Accused. It is further submitted that the false fact stated in the Gift Deed, and the false shara made in the Gift Deed by the Fourth Accused clearly substantiate the same. It is relevant to state that, at no point of time, Late.B.N.Sharadamba was residing at No.89, R.V.Road, Basavanagudi, Bangalore 560004, after her marriage in 1992, and also as stated in the Gift Deed.
18. The complainant submits that, the alleged Deed of Gift is said to have been presented by the First Accused before the office of the Sub Registrar, Basavanagudi, Bangalore at 2.43 p.m. on 12.03.2013 and the Sub-Registrar's endorsement is to the effect that on the very same day i.e. on 12.03.2013 at about 5.40 p.m. to 5.55 p.m., Late.Smt.B.N.Sharadamba is said to have been affixed her L.T. marks in the presence of Senior Sub Registrar, at 89, R:V.Road, Basavanagudi, Bangalore.
19. The complainant submits that, the alleged donor Late.Smt.B.N.Sharadamba was in the hospital as an in-patient from 8.03.2013 to 6.04.2013 at Rangadurai Hospital, Shankarpuram, Bangalore and as such she was not present at the property bearing. No.89, R.V.Road, Basavanagudi, Bangalore-560004. Res Ipsa Loquitur. The photocopy of the Discharge Summary of the said hospital is produced herewith as Document No.6 to substantiate the same.-. 23 - NC:
2023. KHC:22553 WP No.11639 of 2023 20. The discharge summary issued by the Rangadurai Hospital, Bangalore, discloses that Late.B.N.Sharadamba was admitted on 8.03.2013 and discharged on 6.04.2013 and was suffering from the following ailments: Right Invasive Rhino cerebral mucormycosis Type II diabetes Mellitus Hypertension / Ischemic Heart disease with Chronic CCF Right Front parietal bleed - Left hemi paresis Right Cavernous sinus - Thrombus right eye blind Urinary tract infection External hemorrhoids 21. The complainant in support of his contention, herewith produces photocopy of the medical records issued by the Rangadurai Hospital, Shankarpuram, Bangalore as hereunder: a. First Discharge Summary --- Document No.7 b. Scanning report dated 07.03.2013 --- Document No.8 c. Admission record dated 08.03.2013 --- Document No.9 d. Case sheet dated from (09.03.2013 to 15.03.2013, consisting of 12sheets) --- Document No.10
22. The complainant further submits that, the medical records more fully described in supra as Document No.6 to 10, clearly substantiate that Late.B.N. Sharadhamba had difficulty in opening the eyes and in view of the ailments and in view of the fact that she was admitted to hospital and she was an inpatient there and therefore the question of the execution of the document does not arise as she had no independent capacity or mind and she was not in a sound state of disposition."
The private complaint has narration of minute details of what has happened. The petitioner Sub-Registrar is said to have visited the house of Smt. B.N. Sharadamba on 12-03- - 24 - NC:
2023. KHC:22553 WP No.11639 of 2023 2013 on which date she is said to have executed the gift deeds which are registered by the petitioner. Copious documents are appended to the private complaint demonstrating Smt. B.N. Sharadamba was in the hospital between 11-03-2013 to 14-03-2013. Therefore, the claim of the petitioner/Sub- Registrar that he had visited the house of the executant is rendered farther from truth, prima facie. It is nobody’s case that the Sub-Registrar visited the hospital and has taken the signatures/thumb impressions in the hospital. It is the specific case of the petitioner that he has visited the residence for private attendance at the time when the executant was in the hospital. Therefore, the question that arises is from whom, where and when the petitioner took the signature of Smt. B.N. Sharadamba. It is the emphatic submission that it was not in the hospital. If that be so, from whom he has taken the signatures or is it a fraud is a matter that had to be tried.
14. The learned Magistrate refers the matter for investigation which becomes a crime in Crime No.195 of 2016. The Investigating Officer drops the petitioner from the array of accused and makes him a complainant’s witness – CW-7 and draws up a charge sheet against all other accused. Accused 1 - 25 - NC:
2023. KHC:22553 WP No.11639 of 2023 to 3 therein knock at the doors of this Court seeking quashment of entire proceedings. This Court dismisses Criminal Petition No.8744 of 2018 filed by them by the following order: “10. It is not in dispute that certain property belonged to Smt. B. N. Sharadamba, which she derived at a partition reported in O.S.No.608/1985. This property is the cause for the controversy. The respondent No.1 claimed that Smt. B.N. Sharadamba was admitted in the hospital and was not in a position to execute any document and also was not in a position to comprehend her action. He alleged that taking advantage of the situation and in order to grab the property, the accused No.1 in conspiracy with the accused Nos.2 and 3 had created a document to seem as if Smt. B.N. Sharadamba had executed a gift deed in, favour of the accused No.1. CW.7 toed the line by endorsing on the document that he has visited Smt. B.N. Sharadamba at her residence and taken her signature and thumb impression in her residence and thereafter, registered the document. The aforesaid is a pure question of fact that has to be tried before the Trial Court and certainly not in a petition under Section 482 of Cr.P.C. It is for the accused to establish before the Court that the signature and thumb impression on the gift deed was in fact the signature and thumb impression of Smt. B.N. Sharadamba and that the said thumb impression and signature were made not when she was at the hospital but when she was at her residence.
11. In view of the above, the petitioners/ accused Nos. 1 to 3 have not made out any ground to quash the criminal proceedings against them. Hence, this criminal petition lacks merit and is dismissed.-. 26 - NC:
2023. KHC:22553 WP No.11639 of 2023 The right of the Trial Court to proceed against CW.7 under Section 319 of Cr.P.C. is kept open, subject to statutory compliance. Any observations made by this Court during the course of this order is only for the purpose of disposal of this petition and shall not impact or affect the Trial Court in deciding the case on merits" (Emphasis supplied) The observations made by the co-ordinate Bench forms the nucleus of the issue of dragging the petitioner back into the web of crime as accused No.6. The co-ordinate Bench reserves right of the trial Court to proceed against CW-7/petitioner under Section 319 subject to statutory compliance. The statutory compliance is the law that is laid down by the Apex Court in the afore-quoted judgments. The co-ordinate Bench while dismissing the petition filed by other accused clearly observes that Smt. B.N. Sharadamba who was no more then is said to have executed the gift deeds on 12-03-2013 when she was in the hospital and not in a position to execute any document. It further observes that the petitioner has toed the line by endorsing on the documents that he has visited Smt. B.N. Sharadamba at her residence at the time when she was in the hospital. Therefore, the coordinate Bench dismissed the petition filed by other accused.-. 27 - NC:
2023. KHC:22553 WP No.11639 of 2023 15. In the teeth of the aforesaid facts and on the face of unequivocal statement of the petitioner that he has visited the house of the executant/Smt. B.N.Sharadamba, he has to prove it in a trial as documents galore that Smt. B.N.Sharadamba on that very day was in the hospital and was not in a position to execute any document. Therefore, this would be circumstance enough for the trial Court to have brought in the petitioner back into the web of crime. In the considered view of this court, the petitioner ought not to have been dropped from the array of accused when the charge sheet was filed, as it was a classic case where the petitioner has to come out clean in the trial. Therefore, the submission of the learned counsel for the petitioner that he has been without rhyme or reason dragged back into the web of crime as an accused, thus deserves to be repelled.
16. The submission made by the learned counsel for the petitioner that the very private complaint was not maintainable as it did not accompany an affidavit is again noted only to be rejected as there is fundamental fallacy in the said submission. This Court is not examining the veracity of the private - 28 - NC:
2023. KHC:22553 WP No.11639 of 2023 complaint at this juncture but the veracity of the order dated 20-04-2023 passed on the application of prosecution under Section 319 of the Cr.P.C. Much water has flown beneath the bridge after the initiation of proceedings, for this Court to put the clock back to 2016, accepting the submission of the petitioner that the private complaint did not accompany an affidavit. Prima facie there are materials against the petitioner for the act that he has committed. It is therefore, for him to come out clean in full blown trial.
17. For the aforesaid reasons, finding no merit in the petition, the petition stands rejected. It is made clear that the observations made in the course of this order is only for the purpose of consideration of the case of the petitioner under Section 482 of Cr.P.C. and the same shall not bind or influence any other proceeding that the petitioner would avail of, in law, if any. Sd/- JUDGE KG List No.:
1. Sl No.:
3.