Kerala High Court
P.M.Mohiyuddheen vs The C.B.I on 7 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945
CRL.APPEAL NO. 1240 OF 2010
AGAINST THE ORDER DATED 25.03.2010 IN CC 5/1994 OF
SPECIAL COURT (SPE/CBI)-II, ERNAKULAM
APPELLANT/NOTICEE-DW1:
P.M.MOHIYUDDHEEN,
SUPDT.OF CUSTOMS, METHAR SQUARE,3RD
FLOOR,OPP.NORTH RAILWAY STATION,
KOCHI,ERNAKULAM.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
RESPONDENT/COMPLAINANT:
THE CENTRAL BUREAU OF INVESTIGATION,
KOCHI,REPRESENTED BY THE STANDING COUNSEL FOR
C.B.I, HIGH COURT OF KERALA, ERNAKULAM.
BY ADVS.
SRI.SREELAL WARRIAR, SC C.B.I.
SRI.M.V.S.NAMBOOTHIRY, SC C.B.I.
OTHER PRESENT:
SMT SEENA C., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL
HEARING ON 02.02.2024, THE COURT ON 07.02.2024 DELIVERED
THE FOLLOWING:
2
Crl.Appeal No.1240 of 2010
P.G. AJITHKUMAR, J.
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Crl.Appeal No.1240 of 2010
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Dated this the 7th day of February, 2024
JUDGMENT
This is an appeal filed under Section 341 of the Code of
Criminal Procedure, 1973 (Code). The Special Judge
(SPE/CBI)-II, Ernakulam after conducting an enquiry as
contemplated in Section 340 of the Code directed as per the
impugned order to file a complaint against the appellant for
his prosecution for an offence under Section 193 of the Indian
Penal Code, 1860 (IPC). Aggrieved thereby, this appeal has
been preferred.
2. Heard the learned Senior Counsel for the appellant
and the learned Standing Counsel for the Central Bureau of
Investigation.
3. C.C.No.5 of 1994 is the prosecution initiated by the
respondent against two persons for an offence punishable
under Section 13(1)(d) of the Prevention of Corruption Act,
1988 (PC Act). At the trial of that case, the appellant was
examined as a defence witness. He was DW1. After trial, the
accused were found guilty and convicted for the offences
under Sections 7 and 13(2) read with Section 13(1)(d) of the
PC Act. The court below while convicting the accused found
that the evidence warranted an enquiry as contemplated in
Section 340 of the Code so as to decide whether a complaint
should be filed against the appellant for his prosecution for
giving false evidence. The court below entered a finding as
per the impugned order that it was expedient in the interest
of justice to file a complaint against the appellant as
contemplated in Section 195(1)(b) of the Code before the
Chief Judicial Magistrate, Ernakulam.
4. The learned Senior Counsel would submit on behalf
of the appellant that having a similar enquiry initiated against
PW4 in C.C.No.5 of 1994 been quashed by this Court in the
common judgment in Crl.Appeal Nos.274 and 275 of 1996
and Crl.M.C.No.1388 of 1996, it is quite inappropriate to
sustain the impugned order. It is further submitted that the
appellant is now aged 73 years and his prosecution on a
charge for the offence under Section 193 of the IPC is not in
the interest of justice.
5. The learned Standing Counsel for the respondent
defended the order and submitted that the appellant being a
public servant was expected to help the prosecuting agency in
the prosecution which was lawfully instituted. He, instead,
braved to depose falsehood in court and his intention was
nothing but to salvage the accused.
6. This Court while allowing Crl.M.C.No.1388 of 1996
observed as follows:-
"21. The learned counsel appearing for the petitioner
in Crl.M.C. 1388/1996 submitted that the petitioner has
already retired from the service and is leading a quite
life. He is aged about 70 years. If he is proceeded
against by conducting an enquiry, as contemplated by
the court below, at this stage, it may not only affect
him, but also the entire members of his family. Counsel
also submitted that all the allegations, including
criminal cases registered against the petitioner had
ended in acquittal. Therefore, counsel submitted that at
this belated stage, the petitioner may not be subjected
to an enquiry under Section 340 Cr.P.C.
22. Although I have disbelieved PW4 in certain
aspects, particularly about the assault on the 2 nd
accused by the CBI officials, yet, considering the
peculiar facts and circumstances of the case, I am of
the view that an enquiry under Section 340 Cr.P.C. for
proceeding under Section 193 IPC need not be initiated
against PW4 at this stage. Hence, I quash Annexure A-
II proceedings initiated by the trial court."
7. Having gone through the impugned order, it cannot
be said that there is no material to justify the prosecution of
the appellant. The view taken by this Court to quash the
proceedings initiated under Section 340 of the Code in respect
of PW4 are equally applicable in respect of the appellant as
well. In every case of giving false evidence it may not be
expedient to initiate prosecution. When this Court quashed
the proceeding in the case of one among the two witnesses
against whom the enquiry was initiated, it is inappropriate to
say that it is expedient in the interest of justice to prosecute
the other witness. It is especially so when both are similarly
placed in terms of their role in the case and the age. In such
circumstances, I am of the view that the impugned order
requires interference.
Accordingly, this appeal is allowed and the impugned
order dated 25.03.2010 in C.C.No.5 of 1994 is set aside.
Sd/-
P.G. AJITHKUMAR, JUDGE
dkr
