KANTHARAJU T.P. vs THE STATE & ORS.

Heard the learned counsel for the petitioner and the learned High Court Government Pleader for the respondents - State. Perused the records.

The respondents-Police have registered a case against the petitioner in Crime No.110/2017 on the file of the VIII Addl. CMM Court,

Nrupathunga Road, Bengaluru City for the offence punishable under sections 120B, 197, 198, 201, 203, 465, 471 read with Section 34 of IPC.

The brief factual matrix that emanate from the records are that:

A case has been registered against the petitioner and others for the above mentioned offences stating that some of the documents collected by the

Police during the course of investigation. During the course of investigation, some of the disputed documents were sent to the laboratory, working

under Government of Karnataka, in which the petitioner herein is one of the expert in comparison of the finger print and handwriting. The petitioner

in fact compared the finger prints adopting certain methods and also submitted the report. However, at the time of sending the originals to the

laboratory, it is alleged that the Police have retained some photographs of the said disputed documents and they have also sent the disputed finger

print of the accused persons in Crime No.74/2010 to two private finger print comparison agencies for confirmation and they obtained report and

found that the finger prints which is forthcoming on the OMR Sheet of Akshath B. Haddanavar, is tallied with the specimen LTM and also

photocopy of the LTM found on the OMR Sheet on 20.6.2007. Having found the report of this petitioner, differ from the other private finger print

comparison agencies, the Police found some foul play with the accused persons with that of this petitioner and alleged collusion that this petitioner

was also involved in tampering of the document which were sent for examination by the Police during the course of investigation in Crime

No.74/2010.

On such allegations, the Police have registered a case against this petitioner along with other accused persons in Crime No.74/2010 for the

offence punishable under sections 120B, 197, 198, 201, 203, 465 471 read with Section 34 of IPC.

It is seen from the records that the documents which were sent to Forensic Science examination were all subjected to PF No.18/2010 in Crime

No.74/2010. The documents which are produced before the court were perused by the learned Magistrate and taken the documents to the

custody of the court and then at the request of the Police, the Magistrate has permitted those documents to be retained by the Police and it

appears, thereafter, the documents were sent to the laboratory for examination. It clearly goes to show that the documents were already produced

to the custody of the court and then the Police have taken those documents for the purpose of further investigation. Therefore, those documents

are deemed to be under the supervision of the court and the court is the dejure custodian, though the Police have taken those documents and they

are defacto custodians. Therefore, during the course of investigation, if those documents are found to be tampered by any person, it amounts to the

offence under the same transaction and there cannot be any separate complaint or a case can be registered by the Police for investigation. In the

same case, the said acts of the accused persons and any other person involved in the case can be investigated and the Police could file charge

sheet in the said case or if the charge sheet has already filed they can invoke the provision u/s.173(8) of Cr.P.C. to file additional charge sheet and

also implead any other accused which is involved in the said case.

Be that as it may, the Police have not only invoked the provision u/s.201, 203, 465, 471, 197, 198 and 120B read with Section 34 of IPC, but

also invoked Section 197 and 198 of IPC, to establish that if a person has issued or signed any certificate required by law to be given or signed or

relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point,

shall be punished in the same manner as if he gave false evidence. Section 198 of IPC refers to Using as true a certificate known to be false -

Whoever corruptly uses or attempts to use any suchs certificate as a true certificate, knowing the same to be false in any material point, shall be

punished in the same manner as if he gave false evidence.

According to the Police, issuance of the certificate or using of the certificate by this petitioner is with reference to the Crime already registered in

No.74/2010. In order to invoke Section 197 or 198 of IPC, there is a rider u/s.195 of Cr.P.C. Section 195 of Cr.P.C. refers to Prosecution for

contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - (1) No

Court shall take cognizance - (a)(i) of any offence punishable u/ss.172 to 188 (both inclusive) of the IPC or (ii) of any abetment of, attempt to

commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned

or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections of

the IPC Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been

committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable u/s.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. So proceedings in a case in my opinion, includes in the course of inquiry or trial before the court. Any proceeding the

word used in this Section is exhaustive enough even to consider the documents which are produced for the consideration of the court during the

course of inquiry or trial. Therefore, when the Police have invoked Sections 471, 475 or 476 of IPC, and that such offences are alleged to have

been committed in respect of the documents which are produced by the Police before the court and then taken back for further investigation. In

such an eventuality, the court cannot take cognizance of such offences unless on the complaint in writing to the court or by any such Officer of the

Court that court authorizes hand writing in this behalf that if those documents are produced along with charge sheet and if they are tampered which

was given back to the Police by the court, in such an eventuality, the Police can file those documents along with the further charge sheet and the

court can look into those materials and if the court is of the opinion that some other persons also involved in the case, the court can take

cognizance of such offence suomoto u/s.319 of Cr.P.C., committed any offence and issue notice to the concerned accused to bring him as an

accused before the court. Therefore, the Police cannot register a case independently on those provisions and independently investigate so far as

those aspects are concerned. Even after the trial if the court is of the opinion that accused or any person have committed any offence during the

pendency of the case by tampering documents or given false evidence. That court can lodge a complaint u/s.340 of Cr.P.C. after following the

procedure.

Under the above said circumstances, initiation of proceedings independently against this accused in Crime No.110/2017 for the above said

offences is bad in law and the same is liable to be quashed. However, it is made clear that during the course of investigation, if the Police found that

this accused/petitioner has also committed any offence, the Police are at liberty to file additional charge sheet u/s.173(8) of Cr.P.C. along with the

additional accused. In such an eventuality, the court has to examine and then only the court can take cognizance against those offences and call

upon the accused to face trial along with other accused. If the charge sheet has already filed, during the course of evidence, if the prosecution

makes out a case that some other accused have also committed an offence having conspiracy that the accused who are already appearing before

the court and made attempts to screening any documents or tampering any documents, the prosecution can also make an application u/s.319 of

Cr.P.C. to bring the other accused who have also committed the offence in connection with the same transaction.

After securing the presence of the accused in connection with the original case, if the court is of the opinion that the offences u/s.197, 198, 471,

465, are independent which are not connected with the said case, the court can also invoke the provision under Section 340 of Cr.P.C. and to

refer the same to some other Magistrate for conducting inquiry or trial. With this observation, the Writ Petition is allowed. The Investigating

Agency or the prosecution can invoke the above said options open to them at right point of time if need arises. Consequently, initiation of the FIR

in Crime No.110/2017 deserves to be quashed. According Crime No.110/2017 is hereby quashed.