Kerala High Court
K.B.Ganesh Kumar vs State Of Kerala on 27 October, 2023
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 27TH DAY OF OCTOBER 2023 / 5TH KARTHIKA, 1945
CRL.MC NO. 3465 OF 2021
AGAINST THE ORDER/JUDGMENT CC 624/2021 OF JUDICIAL MAGISTRATE
OF FIRST CLASS -I,KOTTARAKKARA
PETITIONER/ACCUSED NO.2:
K.B.GANESH KUMAR
AGED 55 YEARS
S/O R.BALAKRISHNA PILLAI, TNH 4, J LANE, TAGORE
NAGARA, MANCHALLOOR, VAZHUTHACAUD P.O.,
THIRUVANANTHAPURAM
BY ADVS.
S.RAJEEV
K.K.DHEERENDRAKRISHNAN
V.VINAY
M.S.ANEER
R.ANIL R
B.RAMAN PILLAI (SR.)(R-260)
RESPONDENTS/STATE/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA ERNAKULAM- 682 031
2 SUDHEER JACOB
S/O M.K. JACOB VAIDHYAN, MAHIMA, KIZHAKKEKARA,
THEVALAKKARA P.O., MYNAGAPALLY VILLAGE, KUNNATHOOR
TALUK, KOLLAM DISTRICT- 690 524
Crl.M.C.No.3465 of 2021
2
BY ADVS.
SRI.S.SREEKUMAR (SR.)
SMT.TINA ALEX THOMAS
SRI.HARIMOHAN
SMT.SREEJA V., PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
16.10.2023, THE COURT ON 27.10.2023 PASSED THE FOLLOWING:
Crl.M.C.No.3465 of 2021
3
CR
P.V.KUNHIKRISHNAN, J.
------------------------------
Crl.M.C.No.3465 of 2021
----------------------------------------------
Dated this the 27th day of October, 2023
ORDER
This Criminal Miscellaneous Case is filed to quash the
proceedings in C.C.No.624/2021 on the file of the Judicial First
Class Magistrate Court - I, Kottarakkara as against the
petitioner.
2. Petitioner is the 2nd accused in the above case. The 2 nd
respondent herein filed a private complaint before the Judicial
First Class Magistrate Court - I, Kottarakkara against the
petitioner and another alleging offences punishable under
Sections 120B, 192, 193, 182, 469, 471 r/w Section 34 IPC.
Annexure-I is the complaint. The learned Magistrate has taken
Crl.M.C.No.3465 of 2021
cognizance under Sections 193, 182, 469, 471 and 120(B) IPC.
Aggrieved by the order taking cognizance and also against
Annexure-I complaint, this Criminal Miscellaneous Case is filed.
3. The short facts in Annexure-I complaint are like this:
The Government of Kerala has constituted a Commission of
Inquiry under the Commissions of Inquiry Act for the purpose of
making an inquiry into an issue which is known as 'Solar Scam
and allied financial transactions'. Accused No.1 in Annexure-I
complaint was one of the witnesses before the Solar Scam
Commission. It is the case of the 2 nd respondent/complainant
that the 1st accused in Annexure-I made baseless and wild
allegations against the then Chief Minister of Kerala, Ministers,
M.L.As etc., in the proceedings before the said Commission as
CW 108. Petitioner herein, who is the 2nd accused in Annexure-I
complaint, is the Member of the Legislative Assembly from
Pathanapuram Assembly Constituency. The 1 st accused in
Annexure-I complaint produced and marked a letter before the
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Commission on 13.05.2016 allegedly written by her on
19.07.2013 as Ext.X-531, X-639(b). According to the
complainant, this letter was marked under the pretext that the
1st accused wrote this letter while she was in police custody in
relation to the investigation of Crime No.368/2013 of
Perumbavoor Police Station. The 1st accused was arrested on
03.06.2013 by the Perumbavoor Police in connection with Crime
No.368/2013. She was remanded to judicial custody and was
send to the Sub Jail, Pathanamthitta. Before admitting in the jail,
her body was searched by the jail authorities and they had found
a letter. The 1st accused was permitted to keep the letter in her
custody while in jail, is the submission of the complainant in
Annexure-I complaint. On 23.07.2013, Adv.Phenny Balakrishnan
came to the jail to collect the letter. The Superintendent of jail
permitted the 1st accused to hand over the letter to Adv. Phenny
Balakrishnan after receiving a proper receipt indicating the
number of pages of the letter. After the issuance of a receipt to
Crl.M.C.No.3465 of 2021
Adv. Phenny Balakrishnan, the letter was collected by him from
the 1st accused. It is also the case of the complainant in
Annexure-I that, in the course of proceedings before the
Commission of Inquiry itself, CW58 - Mr.Viswanatha Kurup who
was the Superintendent of jail, Pathanamthitta was examined
and deposed before the Commission that the 1 st accused had
handed over a letter/notes to her lawyer, Adv. Phenny
Balakrishnan on 23.07.2013 at Pathanamthitta jail. It was
deposed by the said Mr.Viswanatha Kurup that, Adv. Phenny
Balakrishnan executed a receipt to the effect that the letter has
only 21 pages. The receipt was marked as Ext.X-174 before the
Commission. Further, it has come out in evidence before the
Commission that the 1st accused sent a complaint dated
28.07.2013 through Superintendent, Attakulangara jail to the
Additional Chief Judicial Magistrate, Ernakulam which was
marked as Ext.X-190 before the Commission. The learned
Magistrate forwarded the complaint to the Station House Officer,
Crl.M.C.No.3465 of 2021
Ernakulam North Police Station for investigation. It is submitted
that, there is no allegation against anybody in that complaint.
However, it is the case of the 2nd respondent/ complainant that,
Ext.X-531 and 639(b) letter produced by the 1 st accused and
marked on 06.06.2016 in the Commission had 25 pages. It is
also submitted that in this letter the 1st accused alleged that
several persons who are high dignitaries sexually harassed her
and also took money from her. The Commission of Inquiry
accepted this letter in evidence and acted on it and issued
recommendations to the Government. On receipt of the report of
the Inquiry Commission, the Government of Kerala constituted a
Special Investigation Team and decided to investigate into the
recommendations which also contained the allegations in the so-
called letter.
4. While so, on 11.11.2017, Adv. Phenny Balakrishnan in
a press conference made a disclosure that the letter produced by
the 1st accused before the Commission of Inquiry was not the
Crl.M.C.No.3465 of 2021
original letter and the letter produced by the 1 st accused in the
Commission (Ext.X-531, Ext.X-639(b)) is a fabricated false
document. It was also alleged that the false letter was
fabricated at the instance of the 2 nd accused who is the
petitioner herein. It is submitted that the disclosure of
Mr.Phenny Balakrishnan was reported by all major dailies. A
news item published in the Indian Express Daily dated
12.11.2017 is extracted in Annexure-I complaint. It is also
submitted that the above disclosure made by Adv. Phenny
Balakrishnan is the disclosure of an information about the
commission of offences under the Indian Penal Code. It is
submitted by the complainant, the 2nd respondent herein, that
Adv. Phenny Balakrishnan reveals that, accused Nos.1 and 2
hatched a criminal conspiracy at Kottarakkara and in pursuance
to the criminal conspiracy committed the offence of fabricating
false evidence defined under Section 192 of the IPC by making a
document containing a false statement intending that it may
Crl.M.C.No.3465 of 2021
appear in a judicial proceeding or a proceeding taken by law
before a public servant as such and that false statement, so
appearing in evidence, may cause any person who in such
proceeding is to form an opinion upon the evidence, entertain an
erroneous opinion touching any point material to the result of
such proceeding. It is also the case of the complainant that the
offence under Section 193 IPC is also committed by the accused.
According to the complainant, the accused in Annexure-I
complaint has an axe to grind against the then Chief Minister,
Cabinet Ministers and other political leaders and hence hatched a
criminal conspiracy to create false evidence and produced it
before the Commission of Inquiry. It is also submitted that, in
pursuance of the criminal conspiracy hatched between the
accused, a letter alleged to be written on 19.07.2013 knowing
fully well that the contents of the letter are false, was produced
before the Commission of Inquiry on 13.05.2016. The
Commission of Inquiry wholly relied on this fabricated false
Crl.M.C.No.3465 of 2021
document and submitted certain recommendations to the
Government is the submission of the complainant in the
complaint before the lower court. Therefore, it is submitted that
the accused committed the offences under Sections 120B, 192,
193, 182, 469, 471 r/w Section 34 IPC.
5. After filing the complaint, the sworn statement of eight
witnesses were recorded on the side of the complainant. Based
on the above statement, the learned Magistrate found that there
is prima facie evidence to take cognizance against accused Nos.1
and 2 under Sections 193, 182, 469, 471 and 120(B) IPC.
Accordingly, summons was issued to the petitioner and the 1 st
accused. Aggrieved by the issue of process and also challenging
Annexure-I complaint, this Criminal Miscellaneous Case is filed.
6. Heard the learned Senior counsel Adv. B.Raman Pillai
for the petitioner as instructed by Adv. S.Rajeev and the learned
Senior counsel Adv. S.Sreekumar as instructed by Adv.Tina Alex
Thomas appearing for the 2nd respondent. I also heard the
Crl.M.C.No.3465 of 2021
learned Public Prosecutor.
7. The learned Senior counsel appearing for the
petitioner submitted that, even if the entire allegations in
Annexure-I complaint are accepted in toto, no offence is made
out. The Senior counsel takes me through Section 193 and 182
of IPC. The Senior counsel submitted that, for taking cognizance
of offences under Section 193 and 182, there is a bar under
Section 195 of the Criminal Procedure Code. The counsel takes
me through Sec.195 Cr.P.C. and submitted that since there is a
bar for taking cognizance, the learned Magistrate erred in taking
cognizance of offences under Secs.193 and 182 of the IPC. After
narrating the ingredients of Secs. 193 and 182 IPC, the senior
counsel submitted that even if the entire allegations are
accepted, the above offences are not attracted. The senior
counsel also submitted that no offence under Secs. 469 and 471
is attracted in this case. Sec.469 states about forgery for the
purpose of harming reputation and Sec. 471 states about using
Crl.M.C.No.3465 of 2021
as genuine a forged document or electronic record. The senior
counsel submitted that the admitted case of the complainant is
that A1 originally prepared a 21 page letter and handed over the
same to Adv. Phenny Balakrishnan from the jail. Thereafter, A1
forged her own letter making it a 25 page letter. Even if that
contention is accepted, the offence of forgery is not made out is
the submission of the senior counsel. The senior counsel relied
on the judgment in Manmohan Shenoy D. and others v.
State of Kerala and others [2019 (4) KHC 482] in which it is
observed that, for attracting the offence of forgery, the
documents must purport to have been made, signed or sealed
by a person who did not in fact make it. In this case, the senior
counsel submitted that the complainant only says that the 1 st
accused corrected her own letter subsequently. That would not
amount to forgery is the submission. The senior counsel also
relied on the judgment in Mohammed Ibrahim and others v.
State of Bihar and Another [2009 (8) SCC 751] to
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substantiate his contention that the ingredients of forgery is not
made out in this case. The senior counsel also relied on the
judgment of this Court in Mathew v. George [1989 (1) KLT
470] and contended that writing a false statement in an affidavit
or other document by the maker himself would not attract the
offence of forgery. The senior counsel also relied on the Apex
Court judgment in Dr. Subramanian Swamy v. Arun Shourie
[2014 (3) KLJ 655].
8. The senior counsel, Sri.S.Sreekumar appearing for the
2nd respondent submitted that Sec.195 Cr.P.C. is not attracted in
this case because the offence alleged was committed before
producing the same before the judicial commission. The senior
counsel relied on the judgment of the Supreme Court in
Kishorbhai Gandubhai Pethani v. State of Gujarat and
Another. [2014 (13) SCC 539]. The senior counsel,
S.Sreekumar also submitted that the learned Magistrate has only
taken cognizance of the offence and the contentions raised by
Crl.M.C.No.3465 of 2021
the petitioner can be raised at the stage of Sec. 244 Cr.P.C. by
filing a discharge petition.
9. This Court considered the contentions of the petitioner
and the respondents. Annexure-I is a private complaint filed by
the 2nd respondent against the petitioner and another. First of
all, it is to be noted that the 1st accused in Annexure-I complaint
is not made a party in this Crl.M.C. Serious allegations are made
against the 1st accused in Annexure-I complaint. At the time of
arguing the case, the petitioner contended that the 1 st accused
committed the mistakes if any and the petitioner is not
responsible for the same. Without making the 1 st accused as a
party in this Crl.M.C, the petitioner cannot blame the 1 st accused
and try to escape from the criminal proceedings. The contentions
raised by the petitioner against the role of the 1 st accused in
Annexure-I complaint cannot be accepted or discussed by this
Court at this stage because the 1 st accused is not a party in this
Crl.M.C. Without hearing her, it would not be proper on the part
Crl.M.C.No.3465 of 2021
of this Court to accept the case of the petitioner that the 1 st
accused committed certain mistakes for which the petitioner is
not responsible. When a petition is filed under Section 482 Cr.P.C
by one of the accused in a private complaint or one of the
accused in a final report submitted by the police to quash the
criminal proceedings against that accused, and if there is any
conflict of interest between the accused persons or if one of the
accused contend that, the offence if any is actually committed by
the co-accused, without making the co-accused a party, the
Criminal Miscellaneous petition is not maintainable. Of course, if
the contention of one of the accused is independent or not
contradictory to others, in such situations, if the other accused
are not made party, there may not be any prejudice to the other
accused. But if the case of all the accused is interconnected or if
there is an allegation of conspiracy between the accused,
without making all the accused as parties, a petition under
Section 482 Cr.P.C to quash criminal proceedings is not
Crl.M.C.No.3465 of 2021
maintainable. Here in Annexure-I complaint, conspiracy is
alleged between the 1st and 2nd accused. In such circumstances
without hearing the other accused, this court cannot decide the
matter. For that simple reason itself, this Criminal Miscellaneous
case is not maintainable. But some legal contentions raised by
the petitioner is to be considered.
10. Before discussing the legal contentions, it is to be
noted that, Annexure-I is a private complaint. The learned
Magistrate recorded the statement of the complainant under
Sec. 200 Cr.P.C. and thereafter, recorded the sworn statement of
the seven other witnesses. Based on the sworn statement of the
complainant and the other witnesses, the learned Magistrate
found that there is sufficient ground for proceeding against the
petitioner and the 1st accused. At the stage of issuing process
under Sec. 204 Cr.P.C., the duty of the court is only to find out
whether there is sufficient ground for proceeding with the case.
If the learned Magistrate after considering the statement on oath
Crl.M.C.No.3465 of 2021
of the complainant and of the witnesses is of the opinion that
there is no sufficient ground for proceeding, the Magistrate can
dismiss the Complaint under Sec. 203 Cr.P.C. Once process is
issued under Sec. 204 Cr.P.C. in a private complaint, Sec. 244
Cr.P.C. onwards is applicable because it is a case instituted
otherwise than on a police report. At the stage of Secs. 200 and
204 Cr.P.C., the Magistrate is considering whether there is
'sufficient ground for proceeding' based on the statement on
oath of the complainant and the witnesses produced by the
complainant. But at the stage of Sec.244 Cr.P.C., the
complainant has to adduce evidence when the accused appears
or is brought before a Magistrate. As per Sec. 244 Cr.P.C., the
Magistrate shall proceed to hear the prosecution and take all
such evidence as may be produced in support of the prosecution.
At that stage, the prosecution has to give evidence. Thereafter, if
upon taking all the evidence referred to in Sec. 244 Cr.P.C., the
Magistrate considers for reasons to be recorded that no case
Crl.M.C.No.3465 of 2021
against the accused has been made out which, if unrebutted
would warrant his conviction, the Magistrate shall discharge him.
When such evidence has been taken or at any previous stage of
the case, the Magistrate is of the opinion that there is ground for
presuming that the accused has committed an offence, he shall
frame in writing a charge against the accused. Therefore, the
stage of taking of cognizance of the offence and issuing process,
and the stage when the charge is to be framed against the
accused or alternatively the accused is to be discharged are
different stages as per the Code. As I mentioned earlier, at the
stage of taking cognizance, the Magistrate only needs to
conclude whether there is sufficient ground for proceeding. But
at the stage of Section 244 Cr.P.C to Section 246 Cr.P.C, the
Magistrate has to consider the evidence produced by the
prosecution and decide whether a charge is to be framed or not.
11. In this case, the Magistrate only considered whether
there is sufficient reason to proceed with the case. I am of the
Crl.M.C.No.3465 of 2021
considered opinion that Annexure-II is an order passed by the
Magistrate after considering the available statements recorded
on oath and there is nothing to interfere with Annexure-II order.
12. The main contention raised by the learned Senior
Counsel Sri.B.Raman Pillai is that the offences under Sections
193 IPC and 182 IPC are not prima facie made out. I do not
want to discuss the same in detail at this stage especially
because the 1st accused is not a party in this case. Any
discussion on that may prejudice the interest of the 1 st accused.
Therefore, that question is left open and the petitioner can raise
that question at the time of Section 244 Cr.P.C by filing a
discharge petition.
13. The next legal contention raised by the petitioner is
that there is a bar in taking cognizance of offences under
Sections 193 and 182 IPC as per Section 195 Cr.P.C. But I am of
the considered opinion that the bar under Section 195 Cr.P.C is
Crl.M.C.No.3465 of 2021
not applicable in this case. The admitted case of the prosecution
is that the alleged forgery is committed before the alleged
forged document is produced before the Judicial Commission.
There is no case to the complainant that the forgery happened
after producing the document before the Commission. In such
circumstances, the dictum laid down by the Apex Court in
Kishorbhai Gandubhai Pethani's case (supra) is applicable.
Paragraphs 10, 12 to 14 are extracted hereunder:
"10. In the instant case, admittedly, the documents had been
forged and fabricated. The manipulation, if any, had been made
prior to filing of those documents in the court. Therefore, the
question arises whether in such a fact situation, provisions of
Sections 195 and 340 CrPC are attracted.
Xxxxxxx
12. However, a Constitution Bench of this Court in Iqbal Singh
Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, after
considering a large number of judgments on the issue, held as
under: (SCC pp.389-91, paras 31& 33-34).
"31. That apart, the section which we are required to
interpret is not a penal provision but is part of a
procedural law, namely, the Code of Criminal Procedure
which elaborately gives the procedure for trial of criminal
cases. The provision only creates a bar against taking
Crl.M.C.No.3465 of 2021
cognizance of an offence in certain specified situations
except upon complaint by court. A penal statute is one
upon which an action for penalties can be brought by a
public officer or by a person aggrieved and a penal Act in
its wider sense includes every statute creating an offence
against the State, whatever is the character of the
penalty for the offence. The principle that a penal statute
should be strictly construed, as projected by the learned
counsel for the appellants can, therefore, have no
application here.
Xxxxxxx
33. In view of the discussion made above, we are of the
opinion that Sachida Nand Singh has been correctly
decided and the view taken therein is the correct view.
Section 195(1)(b)(ii) CrPC 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.
34. In the present case, the will has been produced in the
court subsequently. It is nobody's case that any offence
as enumerated in Section 195(1)(b)(ii) was committed in
respect to the said will after it had been produced or filed
in the Court of the District Judge. Therefore, the bar
created by Section 195(1)(b)(ii) CrPC would not come
into play and there is no embargo on the power of the
court to take cognizance of the offence on the basis of
the complaint filed by the respondents."
(emphasis added)
Crl.M.C.No.3465 of 2021
13. This Court in Ram Dhan v. State of U.P. considered this very
aspect of the matter and relying upon the earlier judgment of this
Court in Sachida Nand Singh v. State of Bihar came to the
conclusion that if the fabrication of false evidence takes place or
the document is tampered with before filing in the court, the
provisions of Section 195 CrPC would not be attracted. It is only
when the document is tampered with after filing in the court that
the bar provided in Section 195 CrPC would be attracted. A similar
view has been reiterated on the issue by this Court in P.
Swaroopa Rani v. M. Hari Narayana, Mahesh Chand Sharma v.
State of U.P., C. Muniappan v. State of T.N., Institute of
Chartered Accountants of India v. Vimal Kumar Surana and C.P.
Subhash v. Inspector of Police.
14. This Court while considering the issue in Rugmini Ammal v. V.
Narayana Reddiar reiterated a similar view while placing reliance
upon Sachida Nand Singh explaining as under: (Iqbal Singh
Marwah case, (SCC pp. 387-88, paras 25-26)
"25. An enlarged interpretation to Section 195(1)(b)(ii),
whereby the bar created by the said provision would also
operate where after commission of an act of forgery the
document is subsequently produced in court, is capable
of great misuse. As pointed out in Sachida Nand Singh
after preparing a forged document or committing an act
of forgery, a person may manage to get a proceeding
instituted in any civil, criminal or revenue court, either by
himself or through someone set up by him and simply file
the document in the said proceeding. He would thus be
protected from prosecution, either at the instance of a
private party or the police until the court, where the
document has been filed, itself chooses to file a
complaint. The litigation may be a prolonged one due to
which the actual trial of such a person may be delayed
Crl.M.C.No.3465 of 2021
indefinitely. Such an interpretation would be highly
detrimental to the interest of the society at large.
26. Judicial notice can be taken of the fact that the
courts are normally reluctant to direct filing of a criminal
complaint and such a course is rarely adopted. It will not
be fair and proper to give an interpretation which leads
to a situation where a person alleged to have committed
an offence of the type enumerated in clause (b)(ii) is
either not placed for trial on account of non-filing of a
complaint or if a complaint is filed, the same does not
come to its logical end. Judging from such an angle will
be in consonance with the principle that an unworkable
or impracticable result should be avoided."
14. The admitted case of the 2nd respondent/complainant
in Annexure-I complaint is that the letter was fabricated before
producing the same before the Judicial Commission. In the light
of the dictum laid down in Kishorbhai Gandubhai Pethani's
case (supra), the bar under Section 195 Cr.P.C is not applicable
in this case for taking cognizance of the offences under Sections
193 and 182 IPC. The admitted case of the complainant is that
the forgery is committed by the 1 st accused herself by
substituting a 21 page letter received by Adv. Phenny
Balakrishnan from the jail to a 25 page letter and the same is
Crl.M.C.No.3465 of 2021
produced before the Judicial Commission. Therefore, the alleged
forgery has happened before the document is produced before
the Judicial Commission. Therefore, in the light of Kishorbhai
Gandubhai Pethani's case (supra), I am of the considered
opinion that Section 195 Cr.P.C bar is not applicable in the facts
and circumstances of this case.
15. The next point raised by the petitioner is that there is
no forgery even if the prosecution case is accepted. The
petitioner relied on the judgment of this Court in Manmohan
Shenoy's case (supra) and Mathew's case (supra) and
submitted that if the maker herself corrects a document that will
not amount to forgery. As I mentioned earlier, I do not want to
make any observation about the same at this stage because the
1st accused is not a party in this case. Any discussion on that
point may prejudice the interest of the 1st accused. Therefore,
that question too is left open to be decided at the time of
framing of charge and the petitioner can also file a discharge
Crl.M.C.No.3465 of 2021
petition at the appropriate stage raising all these contentions.
16. Moreover, even if the learned Magistrate has taken
cognizance of offences only under Sections 193, 182, 469, 471
and 120B IPC at that stage of taking cognizance, there is no bar
against framing charge with some other offences after the stage
of Section 244 Cr.P.C, if any evidence to that effect is adduced.
Whether this is a case, which ought to be thrown into the
dustbin at the preliminary stage itself is also a question. Very
serious allegations are raised by the 2 nd respondent in Annexure-
I complaint. It is stated that a conspiracy is hatched to trap the
former Chief Minister of Kerala and the petitioner is actively
involved in it. This court called for the sworn statement of CW1
to CW8 from the lower court and perused the same. CW1 is the
complainant himself. He has no direct knowledge regarding the
commission of offence. CW2, Adv. Phenny Balakrishnan has
given sworn statement before the learned Magistrate to the
effect that he collected a letter containing 21 pages from the 1 st
Crl.M.C.No.3465 of 2021
accused in the presence of the jail superintendent of
Pathanamthitta jail. He also stated that he was the counsel for
the 1st accused in 33 cases and subsequently, relinquished
vakalath for the 1st accused. As per his sworn statement, the 1 st
accused required CW2 to reveal names of political leaders
suggested by A1. As observed by the learned Magistrate, from
the deposition of CW2 it is revealed that A1 annexed four
additional pages to the 21 page original letter, as dictated by one
Saranya Manoj and one Pradeep Kumar, the personal assistants
of A2, as directed by A2. CW3 has no direct knowledge regarding
the commission of the offence. CW4 is the then Pathanamthitta
District Jail Superintendent and he has deposed that he saw 21
pages of the letter written by A1 in her possession and he
handed over the same to CW2. The statement of CW2 is
supported by CW4. CW5 is the then Chief Minister, Sri. Oommen
Chandy. CW5 has stated that A2 had some displeasure towards
him with respect to his ouster from the council of ministers.
Crl.M.C.No.3465 of 2021
CW6, who was the personal staff of A2 deposed that A1 and A2
were in close relationship and A2 had influence over A1. It will
be better to extract the relevant portion of the statement given
by CW6 here:
"......എനന്നും മനന്ത്രിയയാകയാനുള്ള ആഗ്രഹന്നും അദദ്ദേഹന്നും ചന്ത്രില ദനേതയാക്കളള
അറന്ത്രിയന്ത്രിച. എനയാൽ ചന്ത്രില കയാരണങ്ങളയാൽ അതന്ത്രിനു സയാധന്ത്രിചന്ത്രില.
മനന്ത്രിയയാകണളമനന്ന് അദദ്ദേഹന്നും ആഗ്രഹന്ത്രിചന്ത്രിരുന. ആ സമയതന്ന് ഞങ്ങൾ
നേല അടുപ്പതന്ത്രിലയായന്ത്രിരുന. എനയാൽ ഒരു ദകയാൺഗ്രസന്ന്
പ്രവർതകളനേന നേന്ത്രിലയന്ത്രിൽ മനന്ത്രിയയാക്കയാതതന്ത്രിലുള്ള നേനീരസന്നും എദനയാടന്ന്
തുറനന്ന് പറഞ. മുൻ മുഖഖ്യമനന്ത്രി ശനീ. ഉമ്മൻ ചയാണന്ത്രിയടക്കമുള്ളവർക്കന്ന്
ഞയാൻ പണന്ത്രിളകയാടുക്കുളമനന്നും ഇവനയാളരളയയാളക്ക ളപണ്ണുദകസന്ത്രിൽ
ളപടുത്തുളമനന്നും ഇവനയാർ അനുഭവന്ത്രിക്കുളമനന്നും അദദ്ദേഹന്നും
പറഞന്ത്രിരുന......."
17. From the above statement it is clear that the 2 nd
accused made a statement in the presence of CW6 that he wants
to implicate the former Chief Minister Oommen Chandi in a
sexual harassment case. In the above statement, CW6 also
deposed that since he is a congressman, the grievance of the
petitioner of not being included in the council of Ministers was
shared with him. It is true that these are sworn statements
Crl.M.C.No.3465 of 2021
recorded by the Magistrate. These are not evidence because the
same is not tested with cross examination. But, for taking
cognizance, a sworn statement given by a witness is relevant.
CW6 is none other than the personal staff of the petitioner at
that time. CW7 was the subsequent District Jail Superintendent,
Pathanamthitta. He also gave a sworn statement. He also
produced the interview register showing the details of
application submitted by Adv.Phenny Balakrishnan for getting
permission to meet Saritha S. Nair. But he stated that the
acknowledgment receipt given by Adv.Phenny Balakrishnan to
the then Jail Superintendent is seen missing.
18. CW8 is an advocate practicing at Punalur. He is an eye
witness. According to him, during the period from 27.06.2001 to
13.09.2014, he was working as personal staff of the 2 nd accused/
petitioner, as LD Clerk. He deposed that during the time
between 9.30 am and 10 am, on Sunday of 10.05.2015, when
he reached the office of the MLA, Pathanapuram, accused Nos.1
Crl.M.C.No.3465 of 2021
and 2 were there and CW8 heard the 2nd accused saying to the
1st accused that "CM ളനേ കൂടന്ത്രി ഉൾളപ്പടുതണന്നും. അളലങന്ത്രിൽ ശരന്ത്രിയയാവന്ത്രില.
ബയാക്കന്ത്രിളയലയാന്നും തളന്റെ കകയന്ത്രിലുണന്ന് ." It is true that this is also a sworn
statement of the witness given before the Magistrate which is
not tested by cross examination. But, for the purpose of taking
cognizance, I am of the opinion that the sworn statement given
by CW8 cannot be ignored, because he also a member of the
personal staff of the petitioner.
19. Therefore, the sworn statement given by CW2, Adv.
Phenny Balakrishnan and CW4, the then Pathanamthitta District
Jail Superintendent would show that the 1 st accused gave a 21
page letter to Adv. Phenny Balakrishnan from the jail. CW5, the
then Chief Minister Sri.Oommen Chandi clearly stated that there
is displeasure from the side of the petitioner towards him
because he was not included in the Council of Ministers. The
sworn statement of CW6 who was the personal staff of the
Crl.M.C.No.3465 of 2021
petitioner and the sworn statement of CW8 who was working as
personal staff, LD Clerk of the 2nd accused are also important.
They need not be disbelieved at this stage, because they are
admittedly the personal staff members of the petitioner. After
going through these sworn statements of the witnesses, the
Magistrate has taken cognizance of the offence. That is more
than enough at this stage to take cognizance of the offence.
Moreover, whether this amounts to the offence for which the
Magistrate has taken cognizance or whether any other offences
are made out, is to be decided at the stage starting from Section
244 of the Code of Criminal Procedure.
20. Serious allegations are raised against the petitioner
who is a Member of the Legislative Assembly by the 2 nd
respondent in which conspiracy is also alleged stating that the
petitioner hatched a conspiracy with the 1 st accused to implicate
the former Chief Minister of Kerala Sri.Oommen Chandi. The
former Chief Minister has passed away. Such an allegation
Crl.M.C.No.3465 of 2021
should not be in the air because his soul will not forgive the
same. The continuation of this case is necessary not only for the
soul of the former Chief Minister and his bereaved family, but
also to prove the integrity of the petitioner too. Let the soul of
our former Chief Minister rest in peace. On the other hand, if
such an allegation against the petitioner who is a Member of the
Legislative Assembly is incorrect, the petitioner can take
appropriate steps for malicious prosecution against the 2 nd
respondent/ complainant. Therefore, I am of the opinion that
this case is to be proceeded and should arrive at a logical
conclusion for the interest of the soul of the former Chief
Minister and if the allegations are wrong, it will prove the
integrity of the petitioner, who is a Member of the Legislative
Assembly, a known politician.
21. Therefore, I am not inclined to quash Annexure-I
complaint at this stage. The petitioner is free to raise all the
contentions at the stage of framing charge by filing a discharge
Crl.M.C.No.3465 of 2021
petition. If such a discharge petition is filed at the appropriate
stage, the Magistrate will consider the same untrammelled by
any observation in this order. This order is passed based on the
order passed by the Magistrate while taking cognizance. The
stage of taking cognizance and the stage of framing charges are
different. Therefore, the Magistrate should consider the
available evidence at the stage of framing charges,
untrammelled by any observation in this order and proceed with
the case in accordance with law.
The upshot of the above discussion is that there is no merit
in this criminal miscellaneous case and hence it is dismissed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM/SKS/das/JV
Crl.M.C.No.3465 of 2021
APPENDIX OF CRL.MC 3465/2021
PETITIONER ANNEXURES
ANNEXURE I THE CERTIFIED COPY OF THE COMPLAINT IN CC
NO.624/2021 PENDING ON THE FILE OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-I KOTTARAKKARA
ANNEXURE II THE CERTIFIED COPY OF THE ORDER DATED
28.06.20212
RESPONDENTS EXHIBITS :NIL
//TRUE COPY// PA TO JUDGE
