Point of law : 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 executants

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 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 anxio