Ashraf and Kunhi Kathiyamu v. State of Kerala and Shihabudheen

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936** ## **Crl.MC.No. 337 of 2013 ()** ## **--------------------------** **AGAINST THE ORDER/JUDGMENT IN OS 185/2007 of MUNSIFF COURT, TIRUR. CRIME NO. 835/2012 OF TIRUR POLICE STATION , MALAPPURAM.** ## **PETITIONER(S)/ACCUSED:** **------------------------------------------** **1. ASHRAF, S/O.POOZHITHARA ALAVI, PANG AMSOM & DESOM, POST PANG, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **2. KUNHI KATHIYAMU, W/O.POOZHITHARA ALAVI, PANG AMSOM & DESOM, POST PANG, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.VENUGOPAL (1086/92).** ## **RESPONDENT(S)/COMPLAINANT :** **------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM [REPRESENTING SUB INSPECTOR OF POLICE, TIRUR, MALAPPURAM DISTRICT IN CRIME NO.835/2012]** **2. SHIHABUDHEEN,** - **S/O.VALIYA PARAMBILAKATH MOHAMMED, EDAYOOR AMSOM, POOVATHUMTHARA DESOM, EDAYOOR.P.O, TIRUR TALUK, MALAPPURAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR SRI.JUSTIN JACOB. R2 BY ADVS. SRI.P.VIJAYA BHANU (SR.). SRI.VIPIN NARAYAN. SRI.V.C.SARATH.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 337 of 2013 ()** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **ANNEXURE A- TRUE COPY OF THE ORDER DATED 09.03.2011 PASSED BY THE MUNSIFF COURT, TIRUR IN E.A.NO.35/2010 IN E.P.NO.243/2009 IN I.A.NO.601/2008 IN O.S.NO.185/2007. ANNEXURE B- TRUE COPY OF THE COMPLAINT DATED 07.07.2012 PREFERRED BY THE SECOND RESPONDENT BEFORE THE JFCM COURT, TIRUR. ANNEXURE C- TRUE COPY OF THE FIR REGISTERED BY THE TIRUR POLICE IN CRIME NO.835/2012.** **RESPONDENTS' EXHIBITS : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.337 of 2013 -----------------------------------------------Dated this the 7[th] day of July, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioners are accused in Annexure B complaint filed by the second respondent alleging offences punishable under Sections 465, 468, 471 and 420 r/w Section 34 I.P.C. The complaint was forwarded under Section 156(3) Cr.P.C for police investigation. Annexure C is the copy of the final report. Contending that the complaint and the registration of crime are illegal, the petitioners have approached this court with the following request : _“ For these and other grounds that may be urged at the time of hearing it is most humbly prayed that this Hon'ble Court may be pleased to allow this Criminal Miscellaneous Case and to quash Annexure B complaint and its consequential Annexure C F.I.R in Crime No.835/2012 of Tirur Police Station (Malappuram district) and all further proceedings pursuant to the same_ **Crl.M.C No.337 of 2013 2** _pending against the petitioners, in the interest of justice.”_ 2. Short facts, are as follows : Second respondent/complainant was the third defendant in O.S No.185/2007 before Munsiff Court, Tirur. It was a suit for partition filed by the second petitioner herein. First petitioner is not a party to that suit. He is son of the second petitioner. Second petitioner claimed 9 out of 18 shares in the partition suit. It is contended by the petitioners that on the basis of admission of the plaint claim by the defendants, a preliminary decree was passed in the suit on 26-11-2007. Thereafter, an application I.A No.608/2008 was filed by the second petitioner for passing a final decree. It is the submission of the petitioners that though the defendants therein, including the complainant, appeared through counsel, they did not file any courter and oppose the claim. An Advocate Commissioner was appointed to effect partition. He after inspection, submitted a report and a **Crl.M.C No.337 of 2013 3** plan before the court. Advocate Commissioner reported that the parties have jointly filed a statement on 04-10-2008 before him showing the manner in which the property will have to be partitioned. There was no objection by the complainant or other respondents in respect of the plan and report submitted by the Advocate Commissioner. Pursuant to that, a final decree was passed on 08-10-2009. Thereafter, the second petitioner filed E.P No.243/2009 on 18-11-2009 for delivery of possession of her share. The complainant or other defendants, in spite of receipt of notice, did not rise any objection against delivery of possession of the property to the second petitioner. Petitioners contended that after much delay, the second respondent/complainant and two others raised a contention that they have not signed in the statement dated 04-10-2008 alleged to have been handed over to the Advocate Commissioner and which formed the basis of the final decree. They also took up a contention that they were not aware of the passing of final **Crl.M.C No.337 of 2013 4** decree. Their contention was that the second petitioner had practiced fraud on the court and the final decree was happened to be passed. It is vitiated because it is a product of a fraud on the court. It is the further contention of the second respondent that a suit as O.S No.30/2010 was filed before the Munsiff Court, Tirur on 28-01-2010 challenging the validity of the final decree. After filing O.S No.30/2010, the second respondent and others filed an application E.A No.35/2010 in E.P. No.243/2009 before the Munsiff Court, Tirur praying for a stay of all proceedings in the execution petition by invoking Order XXI Rule 29 C.P.C. The court considered the petition in detail and it was dismissed as per Annexure A order. Learned counsel for the petitioners submitted that O.S No.30/2010 was dismissed for non-prosecution on 15-06-2013. Petitioners contended that after all these events, on 07-07-2012, the second respondent/complainant filed a complaint before the Judicial First Class Magistrate Court, Tirur against the petitioner alleging **Crl.M.C No.337 of 2013 5** the said offences. It is therefore contended by the petitioners that a complaint is filed with ulterior motives and it is actuated by . _malafides_ 3. Heard the learned counsel for the petitioners and the learned counsel for the second respondent/complainant. 4. Learned counsel for the petitioners submitted that the complaint is hit by Section 195(1)(b)(i) Cr.P.C. The relevant provision reads as follows : - _“_ _**195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences** .-_ - _**relating to documents given in evidence**_ - _(1) No Court shall take cognizance -_ _(a) (i) x x x x x_ - _(ii) x x x x x_ - _(iii) x x x x x_ - _(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196_ **Crl.M.C No.337 of 2013 6** _(both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) x x x x x (iii) x x x x x_ _except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.”_ 5. Learned counsel for the petitioners strongly relied on a three Judges Bench decision of the Supreme Court in _**Basirul-Huq v. State of W.B**_ ( _**A.I.R 1953 S.C 293).**_ The law laid down in paragraph 14 reads as follows : _“ 14. Though, in our judgment, S.195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be_ ## **Crl.M.C No.337 of 2013 7** _borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence fails in the category of sections mentioned in S.195 Cr.P.C. Merely by changing the garb or label of an offence which is essentially an_ **Crl.M.C No.337 of 2013 8** _offence covered by the provisions of S.195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.”_ 6. On the basis of the above decision, it is contended by the learned counsel for the petitioners that the attempt of the complainant herein is to mask the real issue and make it appear that the offences are not falling within the embargo in Section 195(1)(b)(i) Cr.P.C. The factum of signing a statement and handing over it to the Commissioner were known to the complainant and at every stage of the suit, including the execution proceedings, and in the subsequent suit the issue was directly involved. The complainant was fully aware of the existence of such a document and its production before the court, contended the counsel. 7. Per contra, learned counsel for the complainant/second respondent contended that the existence of **Crl.M.C No.337 of 2013 9** such a statement produced by the Commissioner was not within his knowledge at the time when the final decree was passed. When the matter came to light, the complainant filed execution application and it was disposed by Annexure A order without considering the real issue. Learned counsel for the complainant submitted that the complainant has every right to approach the criminal court for taking action against the accused persons as they have committed a rank forgery. Learned counsel for the petitioners relying on a decision in _**State of Punjab v. Raj Singh and Another (**_ ( _**1998)2 S.C.C 391)**_ contended that even if the restriction in Section 195(1)(b)(i) Cr.P.C is attracted, the powers of police to investigate into it and to register an F.I.R are not affected. The Supreme Court was considering the propriety of an order passed by the High Court in quashing F.I.R lodged against the respondents therein alleging commission of offences under Sections 419, 420, 467 and 468 I.P.C. The provision of law considered by the Supreme Court was one under Section 195(1) **Crl.M.C No.337 of 2013 10** (b)(ii) Cr.P.C. The law declared is that merely because there is a bar for a court to take cognizance of an offence mentioned in Section 195 Cr.P.C, it will not eclipse the power of the Investigating Officers to move forward. Learned counsel for the complainant contended that if the complaint is properly investigated and a final report is laid, he would get a chance to approach the concerned court under Section 340 Cr.P.C requesting the court to take action. If the complaint is quashed, he will become remediless. 8. In answer to this contention, learned counsel for the petitioners would contend that the complainant cannot be allowed to circumvent the statutory and precedential law. The averments in the complaint, if taken in its entirety, will show that it either falls under Section 191 or 192 I.P.C. In either case, it will be an offence punishable under Section 193 I.P.C for giving false evidence. If that be so, it is hit by Section 195(1)(b)(i) Cr.P.C as mentioned in _**Basir-Ul-Huq's**_ case (Supra) that the **Crl.M.C No.337 of 2013 11** label or garb given to the offence is not the criterion. Actually, the sum and substance of the allegation will have to be considered for deciding as to whether bar created under Section 195 (1)(b)(i) Cr.P.C is attracted or not. It is true that the court shall not be carried away by the name given to the offences or by showing of Sections in the complaint. Totality of averments will have to be considered to determine whether a particular offence requires sanction for taking cognizance. Learned counsel for the petitioners relied on _**K.A.Kuttiah v. Federal Bank Ltd. And Others (2006 K.H.C 715).**_ Learned Single Judge of this Court had extensively considered the questions relating to sanction under Section 195 Cr.P.C. The ratio in paragraphs 9 and 12 quoted hereunder for clarity : _“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 Chap.11 in I.P.C. The bunch of offences which are_ ## **Crl.M.C No.337 of 2013 12** _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 Chap.11 I.P.C. So much so, it is the predominant requirement of the public justice system that the prosecution of an alleged offender, referable to Chap.11 I.P.C., has to be determined by the justice delivery system itself. This is the reason why the court before which an offence under Chap.11 is seen, shown or alleged, to have 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 would such process of sifting, prosecutions be initiated by the institution of a complaint or other modes as provided under S.340 Cr.P.C._ **Crl.M.C No.337 of 2013 13** _12. The underlying purpose of S.195(1)(b) is to control the temptation on the part of the private parties to start criminal prosecution on vexatious or frivolous, insufficient grounds, inspired by a revengeful desire to harass or spite their opponents. Certain offences have therefore been selected for the court's control because of their direct impact on the judicial process. As the purity of the proceedings of the court is directly sullied by the crime, the court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The observation to this effect made by the Full Bench of the Allahabad High Court in Emperor v. Kushal Pal Singh (AIR 1931 All 443) was quoted with approval by the Apex Court in Iqbal Singh Marwah's case (supra). S.195(1)(b)(ii) was considered in Sachida Nand Singh's case (supra) to state that it is difficult to interpret the said provision as containing a bar_ ## **Crl.M.C No.337 of 2013 14** _against the initiation of prosecution proceedings merely because the document concerned was produced in a court albeit the act of forgery was perpetrated prior to its in the court. It was production construing the scope of the preliminary enquiry envisaged in S.340(1) Cr.P.C in the backdrop of the said finding that it was laid down in Sachida Nand Singh's case (supra) that the scope of the preliminary enquiry is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that court. The question as to whether there could be no prosecution at all at the instance of the court for offences referable to S.195(1)(b)(i) in relation to documents in the nature of affidavits and evidence tendered with support of affidavits and falling within the domain of those offences enumerated in S.195(1)(b)(i), did_ ## **Crl.M.C No.337 of 2013 15** _not fall for consideration either in Sachida Nand Singh's case (supra) or in Iqbal Singh Marwah's case (supra). The order impugned in this writ petition has been passed by holding that “it is well settled that if a document is forged before its production before court no proceedings can be initiated under S.340 of the Criminal Procedure Code.” The proceedings under S.340 Cr.P.C is a preliminary enquiry to find out whether a prosecution proceedings in relation to the offences to which the bar under S.195(1)(b) of the Code is attracted, has to be initiated by the filing of a complaint. The embargo created by S.195 (1) is only to take cognizance of the offences except on satisfaction of the conditions prescribed therein.”_ 9. Coming to the facts of this case, if we read the complaint, it is evident that the grievance of the complainant is to the effect that the first accused, who is the son of the second **Crl.M.C No.337 of 2013 16** accused created a false statement and it was produced in court for procuring a final decree in the case. Specific case in the complaint is that the forged document is the basis on which the final decree rests. Therefore, it is evident that the forgery was committed for the purpose of producing it in a competent court for procuring a favourable order and thereby polluting the stream of administration of justice. Hence, going by the averments in the complaint, it can be seen that if the complainant had been serious at the time of prosecuting the suit or at the time of challenging the execution proceedings or at least at the time of filing the second suit, could have brought the fact to the notice of the court and requested the court to take action against the petitioners in the manner known to law. Without resorting to such legal means, it cannot be now contended that they are entitled to proceed with the complaint for redressal of alleged forgery and giving false evidence. Considering the facts and circumstances of the case, I am of the **Crl.M.C No.337 of 2013 17** view that this is an attempt to circumvent the law. Therefore, it is legally not proper to wait for the outcome of the investigation to decide as to what is to be done with the complaint. As this is found to be an abuse of process of the court, I find that the complaint has to be legally terminated by quashment. In the result, Crl.M.C is allowed. Annexure B complaint and its consequential Annexure C F.I.R in Crime No.835/2012 of Tirur Police Station (Malappuram district) and all further proceedings pursuant to the same pending against the petitioners are hereby quashed. All pending interlocutory applications will stand dismissed. **Sd/A.HARIPRASAD, JUDGE.** amk //True Copy// P.A to Judge