Kerala High Court
Rajan vs State Of Kerala on 23 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 23RD DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
CRL.MC NO. 5493 OF 2021
AGAINST SC 214/2001 OF I ADDITIONAL SESSIONS COURT,KOLLAM
CC 8/2006 OF CHIEF JUDICIAL MAGISTRATE ,KOLLAM
PETITIONER/ACCUSED:
RAJAN
AGED 52 YEARS,S/O.CHELLAPPAN CHETTIAR,
AZHOORTHAZVILAKATH VEEDU,
AZHOOR DESOM, CHIRAYINKEEZHY PANCHAYATH,
SARKARA VILLAGE.
BY ADVS.
SRI.M.T.SURESHKUMAR
SRI.R.RENJITH
RESPONDENT/COMPLAINANT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM - 682 031.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON,
08.02.2023 THE COURT ON 23.03.2023 PASSED THE FOLLOWING:
Crl.M.C. 5493/21 -:2:-
"C.R."
BECHU KURIAN THOMAS, J.
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Crl.M.C No.5493 of 2021
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Dated this the 23rd day of March, 2023
ORDER
The deposition given by the petitioner in a case tried by the
Sessions Court has landed him as an accused for the offence of
perjury. Pursuant to the order of the Sessions Court finding grounds
to proceed against the petitioner under section 340 of the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.') a complaint has been
forwarded to the Magistrate and registered as C.C. No.8 of 2006 on
the files of the Chief Judicial Magistrate's Court, Kollam. Petitioner has
invoked the jurisdiction of this Court under section 482 Cr.P.C to quash
the said proceedings.
2. In a notorious case referred to as 'Kalluvaathukkal liquor
tragedy' petitioner was examined as PW71. The case was numbered
as S.C. No.214 of 2001 before the 1st Additional Sessions Court,
Kollam. When petitioner was examined in court, he deposed contrary
to the statement given by him under section 164 Cr.P.C. and therefore
he was declared hostile. While deposing in court, he stated that his
earlier statement was under threat and coercion from the police.
Despite petitioner turning hostile to the persecution case, the main
accused were convicted and their conviction was upheld all along
including the Supreme Court though the sentences were modified in
respect of some of the accused. The decision is reported in Chandran
alias Manichan alias Maniyan and Others v. State of Kerala
[(2011) 5 SCC 161].
3. In the meantime, the learned Sessions Judge had observed
in paragraph 365 of the judgment that, petitioner herein had given
false evidence and initiated action under section 344 Cr.P.C, by
registering a case as M.C. No.8 of 2002 in S.C. No.214 of 2001 on the
files of the 1st Additional Sessions Court, Kollam. Later, by an order
dated 17.11.2005, after a preliminary enquiry the court was of the
opinion that there were prima facie grounds for proceeding against the
petitioner since he had turned hostile to the prosecution case denying
bluntly the statement given by him under section 164 Cr.P.C. On the
above basis, the learned Sessions Judge forwarded the findings to the
Judicial First Class Magistrate's Court, Kollam under section 344(3)
Cr.P.C along with a complaint and the relevant passage of the
judgment in the sessions case. The Chief Judicial Magistrate took
cognizance of the offence as C.C. No.8 of 2006 and issued process to
the petitioner for his appearance.
4. In the meantime since the Supreme Court had stayed the
entire proceedings in the Special Leave Petition preferred by the
accused, the complaint against the petitioner was not proceeded
further. After the Supreme Court disposed of the SLP, the learned
Magistrate proceeded with C.C. No.8 of 2006 and it was at this
juncture that this petition has been preferred.
5. Sri.M.T.Suresh Kumar, learned counsel for the petitioner
contended that the prosecution was successful in obtaining conviction
for most of the accused before the Sessions Court and therefore the
proceedings under section 340 Cr.P.C ought not to have been resorted
to. It was also contended that given the long lapse of time the court
ought to have dropped all proceedings against the petitioner and
further that the proceedings are vitiated by illegality and impropriety.
6. Sri.Vipin Narayan, learned Public Prosecutor on the other
hand contended that the proceedings have been initiated on valid and
legal grounds and therefore there is no reason to interfere and the law
must take its course.
7. Petitioner is being proceeded against for deposing before the
Sessions Court in S.C. No.214 of 2001 as PW71 contrary to the
statement given by him to the Magistrate earlier, under section 164
Cr.P.C The deposition of the petitioner as PW71 was on 17.08.2001.
Despite petitioner resiling from his earlier statement under section
164 Cr.P.C, the learned Sessions Judge had found the main accused
guilty and even sentenced him and other accused to life
imprisonment.
8. When a person resiles from his earlier statement given on
oath, in a subsequent deposition, also given on oath, it is not easy to
arrive at a conclusion as to which of the statements were false. If the
earlier statement made under section 164 Cr.P.C was false, then the
witness cannot be expected to stick to the said statement solely for
the purpose of avoiding a prosecution for perjury.
9. It is not any and every statement made by a witness that the
court should initiate action for perjury. If such a course of action is
adopted, there would be very little time for courts for any serious
work other than directing prosecution for perjury. The gravity of the
false statement, the circumstances under which such statement was
made and the repercussion of such a statement, are matters which
the court ought to bear in mind before initiating a prosecution for the
offence of perjury. Resiling from an earlier sworn statement need not
in every circumstance result in initiating action for giving false
evidence. Individual discretion must be exercised based on the
factors mentioned above.
10. In the decision in Thomman v. IInd Additional Sessions
Judge (1993 (2) KLT 774), a learned single Judge of this Court had
observed as follows:
"3. No doubt, what the appellant said before the magistrate and
what he deposed before the Sessions Court are diametrically
opposite to each other. At least, one of them must, therefore,
be necessarily false. According to the appellant, what he told
the magistrate was false. It is not the law that every false
testimony should be put through the procedure prescribed in
S.340 of the Code. To attract the procedure, the person
concerned should have intentionally given false evidence for the
purpose of being used in a judicial procedure and the court
should have been of opinion that it was expedient in the interest
of justice to take action against him. Merely because a person
gave false evidence, it is inadvisable or inexpedient to take
action against him. "It is not any and every statement made by
a witness that the court would wish to examine. If the court is
to notice every falsehood that is sworn to by parties in courts
there would be very little time for courts for any serious work
other than directing prosecution for perjury. Again the edge of
such weapon would become blunted by indiscriminate use. The
gravity of the false statement, the circumstances under which
such statement is made, the object of making such statement
and its tendency to impede and impair the normal flow of the
course of justice are matters for consideration when the court
decides on the propriety of instituting a complaint for perjury
(vide Muraleekrishna Das v. I.G. of Police, 1978 KLT 292)."
11. Similarly a division bench of this court in Kuriakose v.
State of Kerala (1995 (1) KLT 76) had observed that courts should
be prima facie satisfied that the proceedings under section 340 Cr.P.C
should be initiated for the interests of justice and that there must be
prima facie evidence supporting a conclusion that false evidence was
tendered.
12. On a perusal of the above referred judgments, it is evident
that for every false statement made before a court, prosecution under
section 340 of the Cr.P.C ought not to be initiated. Similarly it is not
necessary in every case that the subsequent statement before court
given as a deposition should necessarily be the false one. Therefore,
a summary enquiry is to be conducted by the prosecuting court itself
to arrive at a conclusion that the statement given before court was
false.
13. In the case on hand, the alleged false evidence given by the
petitioner did not have any impact on the prosecution case. The main
accused were all convicted by the trial court itself. There was no
material prejudice caused to the prosecution case due to the petitioner
resiling from his earlier statement. Further, almost 21 years have now
elapsed since the date of giving evidence as PW71 and 17 years since
complaint was directed to be filed. At this distance of time, in the
peculiar circumstances of the case, prosecuting the petitioner for
giving false evidence would only be a waste of judicial time especially
since despite petitioner's evidence, the prosecuting agency had
brought forth sufficient evidence and material to prove the guilt of the
accused.
14. In view of the above discussion, this Court is of the view
that the prosecution against the petitioner in C.C. No.8 of 2006 on the
files of the Chief Judicial Magistrate's Court, Kollam initiated pursuant
to Annexure A2 and Annexure A3 is an abuse of the process of court.
Therefore all proceedings pursuant to Annexure A2 and Annexure A3
on the files of the 1st Additional Sessions Court, Kollam and pending
as C.C. No.8 of 2006 on the files of the Chief Judicial Magistrate's
Court, Kollam are quashed.
This criminal miscellaneous case is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX OF CRL.MC 5493/2021
PETITIONER'S/S' ANNEXURES
ANNEXURE A1 TRUE COPY OF THE STATEMENT OF THE
PETITIONER BEFORE THE SESSIONS COURT,
KOLLAM IN SC NO.214/2001 DATED
17/8/2021.
ANNEXURE A2 TRUE COPY OF THE ORDER DATED 17/11/2005
PASSED BY THE 1ST ADDITIONAL DISTRICT
JUDGE, KOLLAM.
ANNEXURE A3 TRUE COPY OF THE COMPLAINT BY THE 1ST
ADDITIONAL SESSIONS JUDGE, KOLLAM DATED
17/11/2005.
