Dr. S.S. Subramanian v. State of Kerala and E.A. Dineesh Kumar, Sheristadar, District Court, Thrissur

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 5364 OF 2019 ``` ## **`AGAINST THE ORDER/JUDGMENT IN CC 113/2019 OF CHIEF JUDICIAL`** ## **`MAGISTRATE ,THRISSUR`** ## **`PETITIONER/ACCUSED:`** ``` DR.S.S.SUBRAMANIAN, AGED 74 YEARS S/O. SUBAAYYA,10/1551,PATTALAM ROAD, THRISSUR-680 001, MEDICAL OFFICER, KERALA SOCIAL SECURITY MISSION, VAYOMITHRAM, KERALA GOVERNMENT, THRISSUR, REGISTERED NO.9413 ``` ``` BY ADV BINOY VASUDEVAN ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** - `1 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682 031` - `2 E.A.DINEESH KUMAR, SHERISTADAR, DISTRICT COURT, THRISSUR-680 003` ``` NIMA JACOB- P.P ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 5364 OF 2019 ``` ``` 2 ``` ## **`ORDER`** The petitioner who is a Doctor by profession is implicated as accused in C.C. No.113/2019 before the Judicial First Class Magistrate Court, Thrissur. The offences alleged against the petitioner are under Sections 193 and 197 of Indian Penal Code. The aforesaid case was registered on the basis of a complaint submitted by the 2[nd] respondent, Sheristadar of District Court, Thrissur by invoking Section 340 read with Section 195(i) of Cr.P.C. 2. The facts which lead to the submission of the aforesaid complaint are as follows: S.C. No.627/2011 was pending before the Principal District and Sessions Judge, Thrissur against four accused persons. The aforesaid case was posted for judgment on 26.06.2019 and on that day the learned counsel appearing for the 1[st] accused sought exemption for personal appearance of the 1[st] accused therein, on the ground that he is laid up. Accordingly the case was adjourned to 28.06.2019. On that day also, the learned counsel for the 1[st] accused therein made an application for exemption along with a medical ``` CRL.MC NO. 5364 OF 2019 ``` ``` 3 ``` certificate issued by the petitioner herein to the effect that the 1[st] accused therein is suffering from dengue fever and seven days is required for recovery. Accordingly the matter was adjourned to 04.07.2019 for the 1[st] accused therein. But, on 04.07.2019, the learned counsel for the 1[st] accused reported no instruction. Later, the bail was cancelled and notices were ordered to the sureties. On 08.07.2019, it was reported that the 1[st] accused therein left to Gulf country. 3. This incident prompted the learned Sessions Judge to inspect the medical certificate issued by the petitioner herein and ultimately the learned Sessions Judge arrived at the conclusion that the same was a forged certificate. The complaint was submitted on the very same day and cognizance was taken by the learned Magistrate based on the same. This Crl.M.C. is filed in such circumstances for quashing Annexure A complaint and all further proceedings pursuant thereto. 4. Heard Sri.Binoy Vasudevan, learned counsel appearing for the petitioner and Smt.Nima Jacob, learned Public Prosecutor ``` CRL.MC NO. 5364 OF 2019 ``` ``` 4 ``` appearing for the State. 5. The main contention put forward by the learned counsel for the petitioner is that, while submitting Annexure A complaint the procedural requirement as contemplated under Section 340 of Cr.P.C. was not followed. It is pointed out that, no preliminary enquiry which is mandatory as per Section 340 of Cr.P.C. before initiating the proceedings were not conducted and hence entire prosecution as such is vitiated. 6. On the other hand, the learned Public Prosecutor would oppose the same. 7. Heard both sides. 8. It is discernible from the records that, the complaint was happened to be filed on 08.07.2019, the date on which arrest warrant of A1 was returned to the Sessions Court with an endorsement that he had left to gulf country. Apparently, return of warrant resulted in examination of the medical certificate issued by the petitioner herein and produced by the counsel for the 1[st] accused therein. Consequently, ``` CRL.MC NO. 5364 OF 2019 ``` ``` 5 ``` the complaint was ordered to be filed and the same was filed on the very same date. From the nature of the procedure that has been adopted it is discernible that no enquiry as contemplated under Section 340 of Cr.P.C. is made. The learned counsel for the petitioner relies on the judgment rendered by this Court in **Subramanian v. M.A.C.T. Irinjalakuda** [1998(2) KL 43], a similar issue came up before this Court, I have taken note of the observations made thereon. “ _3. The Calcutta High Court in another case – AIR 1930 Cal.705 (Satis Chandra Mallik & Ors. v. Emperor) – held as follows:_ _“That in stating that there was “material for prosecution of these persons the Magistrate indicated that in his opinion there may be a prima facie case against them. But nowhere within the four corners of this order could it be said that there was any finding recorded such as is referred to in S.476, nor has he in any way directed his mind to the question as to whether any such order as he makes, is expedient in the interests of justice as to bring the order within S.476.” (The corresponding section in the new Code is S.340)_ _I agree with the above view. It is not every case of perjury irrespective of facts and circumstances that should form the subject of an enquiry, but it is only in such cases where the courts are of honest belief and opinion on the objective consideration of the facts and circumstances that the interest of justice require the laying of a complaint. It is not mandatory but discretionary for the court, depending upon the facts and circumstances of each case, either to conduct a preliminary_ ``` CRL.MC NO. 5364 OF 2019 ``` ``` 6 ``` _enquiy or to dispense with the same to form an opinion that it is in the interests of justice to prosecute the person or persons who committed the perjury. The opinion or the satisfaction contemplated under S. 340 Crl. P.C, is an objective and not a subjective one and the same should be reflected in the finding recorded or the order passed by the court. Such an order must be a speaking one supported by valid and justifiable grounds to enable an appellate court under S. 340 Crl. P.C to know the material on which the court has come to such a conclusion or opinion that it was expedient in the interests of justice to launch a prosecution. If there is no such finding, it cannot be said that it is a mere irregularity curable. It goes to the root of the matter as the court will have no jurisdiction to file a complaint without recording such a finding. Like all other criminal trial or proceeding, the existence of mens rea or the criminal intention behind an act complained of will also have to be looked into and considered before any action under S.340 Crl.P.C. is recommended. The provisions of S. 340 are more or less procedural and indicates how a complaint in respect of offence under S.193 is made.”_ 9. It is true that in the aforesaid judgment it is observed that, an enquiry is not mandatory under Section 340 of the Act and it is the option available to the learned Judge while taking decision when submitting a complaint. On going through the facts and circumstances of the case I am of the view that, this is a case, in which the learned Sessions Judge ought to have conducted an enquiry, particularly because of the reason that, the question involved is a matter which is in ``` CRL.MC NO. 5364 OF 2019 ``` ``` 7 ``` relation to the professional opinion expressed by a medical practitioner. The main reason which apparently prompted the learned Sessions Judge to take a decision to initiate proceedings against the petitioner is that, he had certified the 1[st] accused therein as a patient of dengue fever even without confirming platelet count by blood test. It is discernible from Annexure C that, he only reported that the accused is a suspected dengue fever patient. However, it seems that in Annexure B certificate he was certified as patient of dengue fever. Since, he has already expressed an opinion to the effect that the patient is suspected of dengue fever, it cannot be concluded that Annexure B certificate was issued by the petitioner with the intention to create false evidence. Moreover, the proceedings were initiated even without issuing any showcase notice to him and without giving an opportunity to him to explain the circumstances under which the aforesaid certificate has been issued. The necessity to give an opportunity to the Doctor before initiating proceedings against him in respect of a medical certificate has been clearly explained in the Subramanian’s ``` CRL.MC NO. 5364 OF 2019 ``` ``` 8 ``` case cited (supra). On examining the facts, I am of the view that, this is a case in which, before initiating the proceedings, a preliminary enquiry as contemplated under Section 340 ought to have been conducted by giving the petitioner herein an opportunity to explain the circumstances in which the aforesaid certificate has been issued. In this case, the proceedings were initiated all of a sudden without giving any opportunity to the petitioner. On perusal of the observations made by the learned Sessions Judge an undue haste is seen on the part of learned Sessions Judge. In such circumstances, it is only proper that, Annexure A complaint be quashed. In the result, this Crl.M.C. is allowed. Annexure A complaint and all further proceedings thereon are hereby quashed. However, it is made clear that this shall not preclude the learned Magistrate in initiating fresh proceedings if the learned Judge so chooses. However, if any such proceedings are to be initiated, the same can ``` CRL.MC NO. 5364 OF 2019 ``` ``` 9 ``` be done only after conducting a preliminary enquiry after issuing notice to the petitioner. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` SCS ``` CRL.MC NO. 5364 OF 2019 ``` ``` 10 ``` ## **`APPENDIX OF CRL.MC 5364/2019`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE-ACERTIFIED COPY OF THE COMPLAINT PREFERRED BY THE 2ND RESPONDENT UNDER SECTION 340 R/W SECTION 195(I) OF THE CODE OF CRIMINAL PROCEDURE ANNEXURE-BTRUE COPY OF MEDICAL CERTIFICATE ANNEXURE-CTRUE COPY OF THE PRESCRIPTION ISSUED BY THE PETITIONER TO THE 1ST ACCUSED ```