Kerala High Court
Dr.G.Kishore vs Joseph Thomas on 3 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
Crl.M.C. No.5581 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 / 12TH BHADRA, 1946
CRL.MC NO. 5581 OF 2017
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.154 OF 2016
OF CHIEF JUDICIAL MAGISTRATE, THRISSUR
PETITIONERS/ACCUSED NOS.1 & 2:
1 DR.G.KISHORE
AGED 55 YEARS, PRINCIPAL,LAXMIBAI NATIONAL
COLLEGE OF PHYSICAL EDUCATION,
THIRUVANANTHAPURAM. (ADDRESS AS SHOWN IN THE
COMPLAINT).
2 C.P KUNJUMATHEW
AGED 42 YEARS, CENTRE INCHARGE/ASST.
DIRECTOR,SPORTS AUTHORITY OF INDIA, THRISSUR
TRAINING CENTRE,AQUATIC COMPLEX, THRISSUR.
(ADDRESS AS SHOWN IN THE COMPLAINT).
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.C.JAYAKIRAN
SRI.M.REVIKRISHNAN
RESPONDENTS/COMPLAINANT & STATE:
1 JOSEPH THOMAS, AGED 50 YEARS, PALLIKKAL
HOUSE, T.C./32/1051, ST.PAULSSTREET,
KURIYACHIRA, THRISSUR - 680 006 (ADDRESS AS
SHOWN IN THE COMPLAINT).
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT
Crl.M.C. No.5581 of 2017
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OF KERALA, ERNAKULAM.
BY ADVS.
SMT.S.LAKSHMY
SRI.SHAFIK M.A.
SRI.S.SREEKUMAR (SENIOR) - R1
SRI.RENJITH.T.R, SENIOR PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 03.09.2024, THE COURT ON THE SAME DAY PASSED
THE FOLLOWING:
Crl.M.C. No.5581 of 2017
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P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.5581 of 2017
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Dated this the 03rd day of September, 2024
ORDER
Petitioners are the accused in C.C. No.154/2016
on the file of the Chief Judicial Magistrate Court,
Thrissur. The above case is charge sheeted against
the petitioners alleging offences punishable under
Sections 120B, 420, 463, 464 and 468 of IPC. It is a
private complaint filed by the 1 st respondent against
the petitioners.
2. The case of the complainant is as follows:
The complainant was informed about a
coaching camp, which was to start on April 2012 and
his services were sought as a Basket Ball Coach.
According to the complainant, while he was preparing
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for the aforesaid coaching camp, on 07.04.2012,
during a session of basketball, he got himself injured.
As such, the complainant was not able to make himself
available for the Coaching Camp, which was to take
place in the month of April 2012, as aforesaid. Matters
being so, he had applied for medical leave. It is the
case of the complainant that because he failed to
make himself available for the coaching camp, he was
transferred to the Training Centre at
Thiruvananthapuram run by the Sports Authority of
India. The complainant has a case that his transfer was
illegal and as such he preferred O.A. No. 419/2012
before the Central Administrative Tribunal, Ernakulam,
challenging the order of transfer. According to the
complainant, a document was produced as
Annexure- R2(o) in the aforesaid proceedings by the
petitioners/accused, purported to be a letter written by
the father of one of the basketball trainees attached to
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the training center at Thrissur, to the 1 st accused, in
which allegations were raised against him. The crux of
the grievance voiced by the complainant is that the
aforesaid document is one falsely created by the
accused to secure an order in their favour in the
aforesaid proceedings. The complainant would allege
that the accused committed an act of forgery and
cheating. It is on these allegations that the
complainant alleges that the accused committed the
aforesaid offences. Annexure-A is the complaint.
3. The complainant and two witnesses were
examined at the pre-cognizance stage. Thereafter, the
learned Magistrate took cognizance for the offences
under Sections 120B, 420, 463, 464 and 468 of IPC as
evident by Annexure-B order. According to the
petitioners, even if the entire allegations are accepted,
the offence alleged are not attracted and it is a
false fictitious litigation by the 1 st respondent. Hence
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this Crl.M.C. is filed.
4. Heard the learned counsel appearing for the
petitioners, the learned counsel appearing for the 1 st
respondent and the learned Public Prosecutor.
5. Counsel for the petitioners submitted that
the complainant has not raised this case of forgery in
the proceedings before the Central Administrative
Tribunal where the alleged forged document is
produced. Annexure-C is the order passed by the
Central Administrative Tribunal. It is submitted that
Annexure-C order has become final and the present
complaint initiated by the 1st respondent after nearly
an year from Annexure-C, pertaining to a document,
produced in the proceedings, culminating in Annexure-
C, is with malafides and may not be accepted. The
counsel also relied the judgment of this Court in
Kuttiah v. Federal Bank Ltd. [2006 (3) KLT 418].
The counsel appearing for the 1st respondent
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submitted that a prima facie case is made out as per
the private complaint and the contentions raised by
the petitioners are to be raised before the trial court at
appropriate stages. The counsel appearing for the 1 st
respondent submitted that this Court may not interfere
with the proceedings invoking the powers under
Section 482 of Cr.P.C.
6. This Court considered the contention of
the petitioners and the 1st respondent. The
grievance of the 1st respondent is that a document
produced by the petitioners before the Central
Administrative Tribunal is a forged document. It
is an admitted fact that the original
application was disposed by the Central
Administrative Tribunal finally as evident by
Annexure-C order. Admittedly, the 1 st respondent
has not raised the contention regarding the alleged
forgery before the Tribunal. This Court in Kuttiah's
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case considered a similar situation. It will be better
to extract the relevant portion of the above
judgment;
"7. S.195 Cr.P.C. deals with three distinct
categories of offences. Clauses (a), (b)(i) and
(b)(ii), respectively, relate to (1) contempt of
lawful authority of public servants, (2) offences
against public justice, and (3) offences relating
to documents' given in evidence. Clause (b)(iii)
depends on Clause (b)(i) or (b)(ii), as the case
may be, and governs criminal conspiracy or
attempt to commit any offence specified under
Clause (b)(i) or (b)(ii), as well as abetment of
such offences. Clause (a) deals with offences
which directly affect the functioning of or
discharge of lawful duties of a public servant
and are punishable under Sections 172 to 188
IPC which occur in Chapter X of the IPC with the
heading, "Of Contempts Of The Lawful
Authority Of Public Servants". Clause (b)(ii) of
S.195(1) applies to cases where the allegations
relate to offences enumerated therein which
fall under Chapter XVIII of IPC, which deals with
"Offences relating to documents and to
property marks". In contrast thereto, Clause (b)
(i) of S. 195(1) Cr.P.C. governs offences
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punishable under Ss. 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both
inclusive) and 228, all of which fall under
Chapter XI of IPC, relating to "False Evidence
and Offences against Public Justice", spanning
from Ss. 191 to 229 (both inclusive). Ss. 193 to
195 IPC deal with giving or fabricating false
evidence in judicial proceedings or in any other
case, either with or without the intent to cause
any person to be convicted of a capital offence,
whether or not an innocent person has been
thereby convicted and executed; or with
imprisonment as described. S.199 and 200 IPC
deal with making false statements in any
declaration which is by law receivable as
evidence and using such declaration as true,
knowing it to be false. Sections 205 and 206 IPC
deal with false personation and fraudulent
removal or concealment of property to prevent
its seizure. S.207 IPC deals with fraudulent
claim to property, to prevent its forfeiture. S.
208 IPC deals with fraudulently suffering
decree for sum not due. S. 209 and 210 IPC
deal with dishonestly making false claim in
court and fraudulently obtaining decree for
sum not due. S.211 IPC deals with false charge
of offence made with intent to injure. S. 228
deals with intentional insult or interruption to
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public servant sitting in judicial proceeding.
Among the aforesaid, the offence punishable
under S. 199 IPC relates to making of false
statement in declaration, which is by law
receivable as evidence and using of such a
declaration which is known to be false, as true.
The making of false statement in any
declaration includes a declaration in writing, in
which event, the use of such declaration may
amount to an offence punishable under S.200
IPC. The offences mentioned in Clause (b)(i) of
S. 195(1) Cr.P.C. relate to giving or fabricating
false evidence or making a false declaration in
any judicial proceeding or before a Court of
Justice or before a public servant who is bound
or authorised by law to receive such
declaration, and also to some other offences,
which have a direct co-relation with the
proceedings in a Court of Justice.
8. Chapter XXVI of Cr.P.C, wherein fall Ss. 340
and 341 and other attendant provisions, deals
with "Provisions as to Offences affecting the
Administration of Justice". S. 340 provides that
when any Court is of the opinion that it is
expedient in the interest of justice that an
inquiry should be made into any offence
referred to in Clause (b) of Sub-s. (1)of S. 195,
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which may appear to have been committed 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, the Court may proceed to act in
accordance with the different clauses under S.
340(1), after such preliminary inquiry, if any, as
it thinks necessary. This is eloquent enough a
legislative material to note that the embargo in
S. 195(1) is absolute and any prosecution for
offences enumerated therein could be only by
following the procedure prescribed in S. 340. S.
195(1) imposes an inhibition on a Court to take
cognizance of the different offences as
enumerated therein except upon satisfaction of
the conditions laid down therein. S. 195 and S.
340 insulate persons from criminal prosecutions
by all and sundry and by persons actuated by
personal malice or ill-will. This is ensured by
insisting on there being prosecutions, only when
the interest of public justice renders it
necessary. The said provisions effectively
interdict prosecutions when public interest
cannot be served. They provide protection to
persons from prosecutions on insufficient
grounds and ensure that there shall be
prosecution only when the Court, after due
consideration, is satisfied that there is a proper
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case to put a party to trial. At the same time, if
offences affecting the administration of justice
are committed, then the offender ought not to
escape from the due process of law. Striking a
balance between the public requirement to
bring an offender against public justice to face
the consequences and to insulate misuse of the
law, is the legislative wisdom in providing the
mechanism available by a conjoined application
of S. 195 and S. 340 Cr.P.C.
9. The offences falling under Clause (b)(i)
of S. 195(1), as already noticed, are those
Which relate to false evidence and offences
against public justice, included as Chapter XI in
IPC. The bunch of offences which are dealt with
under the said Chapter are such that they are
intricately connected with the administration of
justice. It would be wholly unsafe to allow a
private litigant to put the law in motion in
relation to an offence falling under Chapter XI
IPC. So much so, it is the predominant
requirement of the public justice system that
the prosecution of an alleged offender, referable
to Chapter XI IPC, has to be determined by the
justice delivery system itself. This is the reason
why the court before which an offence under
Chapter XI is seen, shown or alleged, to have
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been committed, would have to prima facie
come to the conclusion as to whether it is a fit
case to put an alleged offender to trial and
whether such a prosecution is necessary in the
interest of justice. It is after this process of
sifting, would such prosecutions be initiated by
the institution of a complaint or other modes as
provided under S.r 340 Cr.P.C."
7. The allegation against the petitioners is that
a forged document is produced before the Central
Administrative Tribunal. If that be the case, as per
Section 195 (1)(b)(i), there is a bar for filing complaint
by private litigation. Hence, I am of the prima facie
opinion that the complaint is not maintainable.
8. Moreover, the petitioners have never raised
the question of forgery before the Central
Administrative Tribunal as evident by Annexure-C
order. It is worth here to notice that the 1 st
respondent was placed under suspension vide order
dated 21.11.2012 and the same was challenged before
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the Central Administrative Tribunal, Ernakulam Bench
by filing O.A. No.57/2013. The above application was
also dismissed as evident by Annexure-D. Thereafter,
the 1st respondent was imposed with a penalty of
compulsory retirement from service by the Sports
Authority of India as evident by Annexure-E.
Considering the facts and circumstances of the case, I
am of the considered opinion that the continuation of
Annexure-A proceedings is not necessary.
Therefore this Criminal Miscellaneous Case is
allowed. All further proceedings against the petitioners
in C.C.No.154/2016 on the file of Chief Judicial
Magistrate Court, Thrissur are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
nvj/SBC
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PETITIONER ANNEXURES
ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT
PREFERRED BY THE 1ST RESPONDENT
HEREIN, AGAINST THE ACCUSED BEFORE
THE COURT OF THE COURT CHIEF
JUDICIAL MAGISTRATE, THRISSUR.
ANNEXURE B TRUE COPY OF THE ORDER TAKING
COGNIZANCE IN C.M.P NO.1698 OF 2013
PASSED BY THE COURT OF THE CHIEF
JUDICIAL MAGISTRATE, THRISSUR DATED
14.10.2016.
ANNEXURE C TRUE COPY OF THE ORDER PASSED IN O.A
NO.419 OF 2012 BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH DATED 06.07.2012.
ANNEXURE D TRUE COPY OF THE ORDER DATED
06.11.2015 PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM
BENCH IN O.A NO.57 OF 2013.
ANNEXURE E TRUE COPY OF THE ORDER DATED
10.03.2016 ISSUED BY THE SPORTS
AUTHORITY OF INDIA.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
PA TO JUDGE
