Sreejith Premachandran vs Biju Ramesh
2021 Latest Caselaw 1724 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

          THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

    MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942

                       OP(Crl.).No.383 OF 2020

AGAINST THE ORDER/JUDGMENT IN CRL.M.P 935/2020 DATED 30-11-2020
 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-2,
                      THIRUVANANTHAPURAM

    CRIME NO.6/2014/SIU-1TVPM OF VACB, THIRUVANANTHAPURAM ,


PETITIONER:

               SREEJITH PREMACHANDRAN
               AGED 42 YEARS
               S/O PREMACHANDRAN,
               RESIDING AT PURA 21, SREEPRASURA, NETHAJI ROAD,
               POOJAPPURA, THIRUVANANTHAPURAM-695012.

               BY ADVS.
               SRI.T.ASAFALI
               SMT.LALIZA.T.Y.

RESPONDENTS:

      1        BIJU RAMESH
               AGED 55 YEARS
               S/O RAMESAN, RAJADHANI COMPLEX, EAST FORT, POST,
               THIRUVANANTHAPURAM-695023.

      2        THE SUPERINTENDENT OF POLICE
               VACB, SPECIAL INVESTIGATION UNIT, NO.1,
               THIRUVANANTHAPURAM, REPRESENTED BY PUBLIC
               PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

               R1 BY ADV. SMT.P.DEEPTHI
               R1 BY ADV. SRI.C.P.SAJI

OTHER PRESENT:

               SRI B JAYASURYA-SR PP

     THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11-01-2021,
THE COURT ON 18-01-2021 DELIVERED THE FOLLOWING:
 O.P.(Crl) No.383/2020
                                   2




                     R.NARAYANA PISHARADI, J
                     ************************
                       O.P.(Crl) No.383 of 2020
              ---------------------------------------------
              Dated this the 18th day of January, 2021


                              JUDGMENT

The petitioner filed an application under Section 340 (1) of

the Code of Criminal Procedure, 1973 (for short 'the Code')

in the Court of the Judicial First Class Magistrate-II,

Thiruvananthapuram for initiating prosecution against the first

respondent by instituting a complaint for committing an offence

punishable under Section 193 of the Indian Penal Code (IPC).

2. Ext.P1 is the copy of the application filed by the

petitioner under Section 340 (1) of the Code. The crux of the

allegations in this application is that the first respondent, while

giving statement before the Judicial First Class Magistrate-II, O.P.(Crl) No.383/2020

Thiruvananthapuram under Section 164(5) of the Code, in the

course of investigation of the case which was registered as VC-

No.6/2014/SIU-1 by the Vigilance and Anti-corruption Bureau

(VACB), made false statement on oath and he voluntarily

produced a mobile phone and an edited compact disc before the

learned Magistrate. It is alleged that the compact disc produced

by the first respondent before the learned Magistrate contained

record of the conversations contained in the mobile phone and

that such recorded conversations had been edited.

3. As per Ext.P2 order, the court below found that it has

no jurisdiction to entertain the application filed by the petitioner

and the application was returned for presentation before the

proper court.

4. The petitioner has filed this Original Petition under

Article 227 of the Constitution of India, challenging the legality

and propriety of Ext.P2 order.

5. Heard learned counsel for the petitioner and the first

respondent and also the learned Public Prosecutor.

6. The relevant portion of Ext.P2 order reads as follows:

O.P.(Crl) No.383/2020

"Heard. Perused the records. The 164 statement of witness No.1 in the above mentioned case is recorded by the learned magistrate on 30.5.2015 as per the direction of the Hon'ble Chief Judicial Magistrate, Thiruvananthapuram. No judicial proceeding with respect to that offence is pending before the Judicial I Class Magistrate Court-II, Thiruvananthapuram. The term 'Court' in S.340(1) Cr.P.C indicates that there must be power to record evidence and to come to a judicial determinates on the evidence so recorded. Here the matter is pending before the vigilance court. Hence this court has no jurisdiction to entertain this petition and it is returned for presenting before proper court."

7. Learned counsel for the petitioner contended that the

court below failed to exercise its jurisdiction by refusing to

entertain the application filed by the petitioner. Learned counsel

would contend that the petitioner had filed the application under

Section 340 (1) of the Code in the proper Court which had got

the power to institute a complaint against the first respondent for

committing any of the offences enumerated under Section 195 O.P.(Crl) No.383/2020

(1) (b)(i) of the Code.

8. Learned counsel for the first respondent has raised the

following contentions. (1) The petitioner is a total stranger to the

case registered and investigated by the VACB and the

proceeding before the learned Magistrate and therefore, the

petitioner has no locus standi to file an application under Section

340(1) of the Code. (2) When the statement of a witness is

recorded by the Magistrate under Section 164 of the Code, the

Magistrate exercises power under the Code not as a Court but in

his capacity as a judicial officer. Therefore, there was no

proceeding, much less any judicial proceeding, in any court in

relation to which any of the offences enumerated under Section

195(1)(b)(i) of the Code was committed. (3) No application

under Section 340 (1) of the Code would lie after conclusion of

the proceeding, if any, which was pending before a court.

9. Section 340(1) of the Code states that, when, upon an

application made to it in that behalf or otherwise, any Court is of

opinion that it is expedient in the interests of justice that an

inquiry should be made into any offence referred to in clause (b) O.P.(Crl) No.383/2020

of sub-section (1) of Section 195, which appears to have been

committed in or in relation to a proceeding in that Court or, as

the case may be, in respect of a document produced or given in

evidence in a proceeding in that Court, such Court may, after

such preliminary inquiry, if any, as it thinks necessary,-(a) record

a finding to that effect; (b) make a complaint thereof in writing;

and (c) send it to a Magistrate of the first class having

jurisdiction.

10. Section 195(1)(b)(i) of the Code provides that, no

Court shall take cognizance of any offence punishable under

Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both

inclusive) and 228 IPC, when such offence is alleged to have

been committed in, or in relation to, any proceeding in any Court,

except on the complaint in writing of that Court or by such officer

of the Court as that Court may authorise in writing in that behalf,

or of some other Court to which that Court is subordinate.

11. The petitioner is a total stranger to the case which was

investigated by the VACB. In Natarajan v. Subba Rao : AIR

2003 SC 541, the Apex Court has observed as follows: O.P.(Crl) No.383/2020

"In ordinary crimes not adverted to under Section 195 Cr.P.C, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 Cr.P.C. For that matter, the wordings of Section 340 Cr.P.C are significant. The Court will have to act in the interest of justice on a complaint or otherwise".

12. A court directing a prosecution for perjury does so

not to vindicate the grievance of any party but to safeguard the

prestige and the dignity of the Court and to maintain the

confidence of the people in the efficacy of the judicial process.

Solemnity is attached to an oath taken by a witness. When a

party speaks to a thing which is not true or which he has reason

to believe to be not true under oath he is flouting the

administration of justice and the Court is interested in seeing

that this does not go unnoticed. The offender must then be

brought to book. Therefore the court initiates a prosecution

wherein the accused can have a fair trial. This is primarily a

matter for the Court and not for a party even when a party

moves a petition for taking action for perjury against another. O.P.(Crl) No.383/2020

The party, even when he is an applicant under Section 340 of

the Code, is more or less an informant bringing to the Court's

notice a situation which may call for action, a situation which

possibly the court may otherwise miss to notice. There is no

rule that only a party to a proceeding would be competent to

move the Court under Section 340 of the Code. In appropriate

cases even at the instance of a stranger the Court may look into

a plea that a witness or a party has been guilty of giving false

evidence (See Muraleekrishna Das v. Inspector General of

Police : 1978 KLT 292).

13. In the light of the law laid down in the aforesaid

decisions, the contention of the first respondent that the

petitioner has no locus standi to file an application under Section

340 (1) of the Code cannot be accepted.

14. There is also no merit in the contention of the learned

counsel for the first respondent that when the Magistrate

records the statement of a witness under Section 164 of the

Code, he acts as persona designata and not as a court. As per

Section 6 of the Code, Magistrates are labelled as criminal O.P.(Crl) No.383/2020

courts. Section 3 of the Indian Evidence Act also states that a

Court includes all Judges and Magistrates.

15. It is no doubt true that the Code assigns to a

Magistrate various functions which do not strictly fall within the

sphere of judicial duties. It does not mean that a Magistrate

does not act as a Court. The Code does not contain any provision

to the effect that no function performed by a Magistrate in

relation to criminal proceedings whether handled by him or dealt

with by the police would be regarded as function performed by a

Court. Even while exercising the powers under the Code at a

point of time before taking cognizance of any offence, a

Magistrate acts as a Court. Taking cognizance of an offence by a

Magistrate under Section 190 of the Code is not a condition

precedent for him to be regarded as a Court (See Kamalapati

Trivedi v. State of West Bengal : AIR 1977 SC 777).

16. Yet another contention raised by the learned counsel

for the first respondent is that an application under Section 340

(1) of the Code cannot be filed after conclusion of the proceeding

which was pending before the court and such an application can O.P.(Crl) No.383/2020

be filed only during the course of such proceeding. There is no

merit in this contention also. There is no requirement that the

proceeding in relation to which the offence has been committed

shall be pending at the time of filing the application under

Section 340 (1) of the Code. (See State of Maharashtra v.

Sk.Bannu and Shankar: AIR 1981 SC 22). An application

under Section 340(1) of the Code can be filed even after the

conclusion of the proceeding (See Wazir Singh v. Kulwant

Singh: 1997 SCC OnLine P&H 1084).

17. Section 340(1) of the Code refers to proceeding in a

court and it does not mention judicial proceedings. Of course,

the first part of Section 193 IPC would show that it is necessary

that the acts mentioned in that part shall be committed in any

stage of a judicial proceeding to make them offences under that

provision. But, the second part of Section 193 IPC does not

contain any such requirement. Section 2(i) of the Code states

that judicial proceeding includes any proceeding in the course of

which evidence is or may be legally taken on oath. However, the

question whether recording the statement of a witness under O.P.(Crl) No.383/2020

Section 164 of the Code is a judicial proceeding or not, does not

arise for consideration by this Court at this stage because it is a

matter to be considered by the Court which deals with the

application under Section 340(1) of the Code in order to

determine whether any offence punishable under Section 193 IPC

has been, prima facie, committed by the first respondent.

18. As per the allegation in Ext.P1 application, when the

first respondent produced the compact disc before the learned

Magistrate, it had already been edited. Section 195(1)(b)(ii) of

the Code would be attracted only when the offences enumerated

in the said provision have been committed with respect to a

document after it has been produced or given in evidence in a

proceeding in any court i.e. during the time when the document

was in custodia legis (See Iqbal Singh Marwah v. Meenakshi

Marwah : AIR 2005 SC 2119). But, there is no allegation in

Ext.P1 application that the first respondent has committed any of

the offences mentioned in Section 195(1)(b)(ii) of the Code. The

allegation is only that he committed an offence punishable under

Section 193 IPC which is one of the offences mentioned in O.P.(Crl) No.383/2020

Section 195(1)(b)(i) of the Code. The offences mentioned under

Section 195(1)(b)(i) and Section 195(1)(b)(ii) are clearly

distinct. The first category of offences refers to offences of false

evidence and offences against public justice, whereas, the second

category of offences relates to offences in respect of a document

produced or given in evidence in a proceeding in any court.

Though Section 340 of the Code is a generic section for offences

committed under Section 195(1)(b), the same has different and

exclusive application to clauses (i) and (ii) of Section 195(1)(b)

of the Code (See Narendra Kumar Srivastava v. State of

Bihar : AIR 2019 SC 2675).

19. In the light of the decision of the Apex Court in

Kamalapati Trivedi (supra), the view of the learned Magistrate

that, the term 'Court' in Section 340(1) of the Code means the

court which has power to record evidence and to come to a

judicial determination on the evidence so recorded, is clearly

erroneous. The words "such court" in Section 340(1) of the Code

mean the very court before which a person has made false

statement or tendered in evidence any document in respect of O.P.(Crl) No.383/2020

which the offence is alleged to have been committed. In other

words, the expression "such Court" in Section 340(1) of the

Code refers to that court before which the relevant proceeding

is/was pending and which is competent to file a complaint in

respect of the offences under Section 195(1)(b) of the Code.

20. Of course, the view of the learned Magistrate could

have been accepted if the VACB had, after investigation, filed any

charge sheet against the accused in the Special Court/Vigilance

Court and the trial of the case was conducted in that

Court. But, the VACB has filed a refer report in the case before

the Special Court. In Bannu and Shankar (supra), the Apex

Court has noticed the decision of the Madras High Court in

Maromma V. Emperor : (AIR 1933 Madras 125) in which it

was held that a false statement made during police investigation

before a Magistrate and recorded under Section 164 of the Code

regarding an offence of murder, which is triable only by a

Sessions Court, must be held to be in relation to the trial in the

Sessions Court and a complaint for the offence punishable under

Section 193 IPC in relation to such statement can be given by the O.P.(Crl) No.383/2020

Sessions Court. The Supreme Court has explained the rationale

behind this decision as follows:

"If the two proceedings, one in which the offence is committed and the other, the final proceedings, in the same or a transferee court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed "in relation to" the proceedings before the Court to whom the case was subsequently transferred or which finally tried the case".

The situation in the present case is not as stated above.

Therefore, the view taken by the learned Magistrate cannot be

accepted as correct.

21. The discussion above leads to the conclusion that the

Court of the Judicial First Class Magistrate-II,

Thiruvananthapuram has jurisdiction to entertain and consider

the application filed by the petitioner under Section 340(1) of the

Code.

22. Consequently, the original petition is allowed and

Ext.P2 order is set aside. The Court of the Judicial First Class O.P.(Crl) No.383/2020

Magistrate-II, Thiruvananthapuram is directed to receive on file

Ext.P1 application and to consider and dispose of it in accordance

with law.

Sd/-

R.NARAYANA PISHARADI, JUDGE al/-JJ O.P.(Crl) No.383/2020

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE APPLICATION VIZ CRL M.P NO.935/2020 DATED 30TH NOVEMBER 2020 FILED BEFORE THE HON'BLE COURT OF JFCM NO.2 THIRUVANANTHAPURAM.

EXHIBIT P2 CERTIFIED COPY OF THE ORDER DATED 30TH NOVEMBER 2020 MADE IN CRL MP.

NO.935/2020 ON THE FILE OF THE HON'BLE COURT OF JFCM NO.2 THIRUVANANTHAPURAM.

RESPONDENTS' EXHIBITS : NIL

TRUE COPY

PS TO JUDGE

al/-