Jijimon K. M. v. State of Kerala and Others

``` INTHEHIGHCOURTOFKERALAATERNAKULAM PRESENT THEHONOURABLEMR.JUSTICERAJAVIJAYARAGHAVANV WEDNESDAY,THE16[TH]DAYOFAUGUST2023/25THSRAVANA, ``` ## **`1945 CRL.MC NO. 4791 OF 2023`** ``` AGAINSTOS292/2007OFSUBCOURT,PERUMBAVOOR ``` ``` AGAINSTCMANO.75/2016INIANO.1547/2013OFADDITIONAL DISTRICTCOURT&SESSIONSCOURT-VIII,ERNAKULAM/IV ADDITIONALMACT,ERNAKULAM ``` ## **`PETITIONER/RESPONDENT :`** ``` JIJIMONK.M. AGED56YEARS,SONOFMATHEW, KODAKALLILHOUSE,OONNUKKALP.O., – THENGODKARA,NERIYAMANAGALAM,PIN686693 ``` ``` BYADVS. O.H.NAZEEBA SAJENTHAMPAN ``` ## **`RESPONDENTS/3RD PARTY, RESPONDENT AND ADDITIONAL 2ND AND 3RD RESPONDENTS:`** ``` 1STATEOFKERALA REPRESENTEDBYPUBLICPROSECUTOR, HIGHCOURTOFKERALA,ERNAKULAM, - KOCHI,PIN682031 2T.D.GEORGE(DIED) SONOFDAVID,THENGANNALHOUSE, CHENGOLAPPADAM,MULAMTHURUTHY, – ERNAKULAM,PIN682314 3SHIBUGEORGE AGED40YEARSSONOFLATET.D.GEORGE, THENGANNALHOUSE,CHENGOLAPPADAM, - MULAMTHURUTHY,ERNAKULAM,PIN682314 ``` Crl.M.C No.4791 of 2023 2 ``` 4SHIJUGEORGE AGED37YEARS SONOFLATET.D.GEORGE,THENGANNALHOUSE, CHENGOLAPPADAM,MULAMTHURUTHY, - ERNAKULAM,PIN682314 ``` ``` BYADVS.SRI.T.R.RANJITH,SR.PP SHIBUGEORGE(Party-In-Person) ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFOR ADMISSIONON16.08.2023,THECOURTONTHESAMEDAY PASSEDTHEFOLLOWING: ``` Crl.M.C No.4791 of 2023 3 ## **ORDER** This petition is filed challenging Annexure A4 order in CMA No.75/2016 passed by the Additional District Judge-VIII, Ernakulam. By the aforesaid order, the learned Additional District Judge, Ernakulam, while disposing of the appeal filed by the party respondents herein, set aside the order dated 20.8.2016 passed by the Sub Court, Perumbavoor, and directions were issued to the learned Sub Judge to prefer a complaint before the jurisdictional Magistrate after complying with the requirements of Section 340 of the Cr.P.C. 2. The short facts of the case are as under. a. Late Sri T.D. George, the father of the party respondents herein, and his son Shibu George and others was arrayed as the accused in Crime No.43/2000 of the Puthencruz Police station. The aforesaid crime was registered by the petitioner while he was working as Sub-Inspector of Police, Puthencruz Police Station. In the aforesaid case, the accused were charged for having committed the offences punishable under Sections 452, 341, 506(ii), 324, 326, and 307 r/w section 34 of Crl.M.C No.4791 of 2023 4 the IPC. The case was tried by the Court of Sessions, Ernakulam and by the judgment dated 31.3.2003, the accused was found not guilty and was acquitted of all charges. The trial court disbelieved the version of the prosecution witnesses and went on to hold that the 3rd respondent herein, who was studying at Thiruvananthapuram, at the relevant point of time, was arrayed as an accused with devious motive and was prosecuted. Challenging the order of acquittal, leave to appeal was preferred before this Court. By order dated 23.11.2004, a Single Judge of this Court rejected the application for condonation of delay and consequently dismissed the Leave to Appeal. Challenging the said order, the prosecution preferred SLP before the Hon’ble Supreme Court, which was also dismissed in the year 2005. The victim preferred a revision petition as Crl.R.P. No 2006 of 2003 and the same was dismissed by order dated 29.10.2003. b. It appears that after the order of acquittal, late George preferred a suit before the Subordinate Judge, which was initially dismissed. The same is not of much relevance for adjudication of this matter. Later OS No.292/2007 was instituted by the late George before the Court of the Subordinate Judge praying for damages on account of Crl.M.C No.4791 of 2023 5 malicious prosecution. The petitioner herein was defendant No.1 in the said Suit. While being examined as DW1, certain questions were put to the petitioner, to which emphatic answers were given. c. The case of the party respondents is that the petitioner gave false evidence, knowing fully well that the same was false, in order to ensure that George was not able to bring the truth facts to the notice of the Court. According to the party respondents, censure is a punishment as per the provisions of the Kerala Police (Enquiry, Punishment and Appeal) Rules 1958. At the time of tendering evidence, the petitioner was fully aware that he was censured pursuant to an inquiry that was conducted based on complaints made by the plaintiff. In spite of the same, he stated absolute falsehood before the Court and denied that a censure order was passed against him. d. The learned Subordinate Judge proceeded to dismiss the suit by judgment dated 8.02.2007, holding that the plaintiff failed to establish that the defendant No.1 had maliciously prosecuted him without any reasonable and probable cause. The learned Subordinate Judge also held that the suit was barred by limitation. Crl.M.C No.4791 of 2023 6 e. Immediately thereafter, the plaintiff in the suit preferred IA No.1547 of 2013 with a prayer to initiate proceedings under Section 340 of the Code of Criminal Procedure, 1973, against the 1st defendant for tendering false evidence during cross-examination. The learned Subordinate Judge proceeded to dismiss the petition by holding that there was no material before the Court to substantiate that the statement made by the petitioner was deliberate and conscious. f. Challenging the order passed by the learned Subordinate Judge, Sri George preferred an appeal under Section 341 of the Code of Criminal Procedure. g. During the pendency of the appeal, Sri. George passed away, and the legal heirs of the appellant were arrayed as additional Appellants. The learned Additional District Judge, after considering the facts and circumstances, allowed the appeal and set aside the judgment passed by the learned Subordinate Judge. It was held that a prima facie case was made out to conduct an enquiry under Section 340 of the Cr.P.C and directions were issued to the Subordinate judge to prefer a complaint to the learned Magistrate after complying with the Crl.M.C No.4791 of 2023 7 requirements of Section 340 of the code. h. The above order is under challenge in this petition. 3. Mr. Sajen Thampan, the learned counsel appearing for the petitioner, made the following submissions. Sri. George had earlier filed a suit, OS No. 128 of 2004, with a prayer to award damages for malicious prosecution. This suit was dismissed with costs on 08/02/2007. Subsequently, another suit based on the same cause of action was filed as OS No. 292 of 2007, before the learned Subordinate Judge. The said suit was also dismissed as time-barred and on the ground that it was meritless. Although an appeal was filed before this Court, the same has not been decided as yet. In view of the above, it was submitted that pursuing charges against the petitioner for perjury was uncalled for. It is further submitted that the answers given by the petitioner during cross-examination had nothing to do with the merits of the case. The petitioner had merely answered truthfully and fairly, and a reading of the deposition as a whole would reveal that no facts were wrongly stated by the petitioner. The learned counsel asserted that the statement made by the petitioner should not be considered in isolation, but should be read Crl.M.C No.4791 of 2023 8 as a whole. According to the learned counsel, to invoke Section 340 of the Code of Criminal Procedure, 1973 (Cr.P.C.), it is essential to determine whether an inquiry into the alleged offence is expedient in the interests of justice. The learned counsel submitted that since the petitioner acted within the bounds of the law while registering the crime, the decision of the District Judge to order an inquiry under Section 340 of the Cr.P.C. was unwarranted. He would urge that while considering the matter, the District Judge should have deliberated on the necessity of initiating proceedings under Section 340 Cr.P.C. to investigate the alleged offences. Lastly, the learned counsel submitted that the party respondents have been making consistent attempts to falsely implicate the petitioner. In order to substantiate his contention that the proceedings initiated under Section 340 cannot be sustained under law, the learned counsel would rely on **Jadu Nandan Singh v. Emperor** [1910 ILR 37 Cal 250], **Chajoo Ram v. Radhey Shyam and Anr.** [1971 (1) SCC 774], **Muraleekrishna Das v. Inspector General of Police and Ors** . [ILR 1978 (1) KER 339], **KTMS Mohammed and Anr. v. Union of India** [AIR 1992 SC 1831], **Thomman v. Second Additional Sessions Judge, Ernakulam and Ors.** (Rep. by KC Peter Crl.M.C No.4791 of 2023 9 (ADL DGP)) [1993 (2) KLJ 743], **N. Natarajan v. BK Subba Rao** [AIR 2003 SC 541], **Moideen Shah v. Joseph Mathew** [2007 (4) KLT 315], **Amarsang Nathaji v. Hardik Harshadbhai Patel and Ors.** [2017 (1) KHC SN 3], **Ahammed Nizar CH v. State of Kerala and Anr** [2023 (3) KHC 386], **Rithu Maria Joy v. Shejoy Varghese and Anr.** [2023 (2) KLT 691], **Rajan v. State of Kerala** [2023 (3) KHC 104] 4. In response, Mr. Shiju George, who appeared in person, submitted that the petitioner had filed an affidavit before this Court in a previous proceeding in which he admitted that disciplinary proceedings were initiated against him and that he was imposed a punishment of censure. He also referred to the order passed by the UPA Lokayukta, which mentioned the fact of the imposition of censure. He further referred to the letter issued by the District Police Superintendent, Ernakulam, which also mentioned the imposition of censure as per the order dated 20/11/2002. According to Mr. George, the petitioner made false statements while tendering evidence in order to escape liability in the case. He submitted that in the counter-affidavit filed by the respondents in W.P. (C) No. 30373 of 2004 before this Court, it was stated that the allegations made against the petitioner by the father of Crl.M.C No.4791 of 2023 10 the respondents were enquired into as per the directions issued by the Lokayukta. After conducting a proper enquiry, the punishment of censure was imposed as per the relevant Rules prescribed under the Kerala Police Department Enquiry and Punishment Rules. He finally submitted that what is to be determined is whether there are prima facie materials to show that the petitioner gave false evidence so as to attract an offence punishable under Section 193 of the I.P.C. It is submitted that the petitioner was a Police officer who was arrayed as the defendant in a suit for malicious prosecution, and he was bound to depose the true facts before the Court. It is submitted that the question put to the petitioner was quite relevant in deciding the matter in issue, and if that be the case, the learned District Judge was well justified in ordering the filing of the complaint. 5. I have considered the submissions advanced and have carefully gone to the records. 6. Before adverting to the contentions advanced by both sides, it would be apposite to have a look at the provisions. S.340 of Cr.P.C. reads as under: Crl.M.C No.4791 of 2023 11 ## "340. Procedure in cases mentioned in S.195.-- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of S.195, which appears to have been committed in or 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 proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary-- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused - before such Magistrate, or if the alleged offence is non bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect to an offence may, in any case where that Court has neither made a complaint, under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of S.195. (3) A complaint made under this section shall be signed-- (a) where the Court making the complaint in a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. Crl.M.C No.4791 of 2023 12 (4) In this section, "Court" has the same meaning as in S.195." ## 7. S.195(1) of Cr.P.C. provides as under: (1) No Court shall take cognizance-- (a) (i) of any offence punishable under S.172 to 188 (both inclusive) of the Indian Penal Code, 1860 (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, 1860 (45 of 1860), namely, S.193 to 196 (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) of any offence described in S.463, or punishable under S.471, S.475 or S.476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), (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). Crl.M.C No.4791 of 2023 13 8. The Apex Court in the case of **K.T.M.S. Mohd. v. Union of India (** 1992 (3) SCC 178) while examining the scope and ambit of Section 340 of the Code and Section 195 of the IPC and has held as under: **35.** In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading “Provisions as to Offences Affecting the Administration of Justice”. This section confers an inherent power on a court to make a complaint in respect of an offence committed in or 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_ , if _that court_ is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause ( _b_ ) of sub-section (1) of Section 195 and authorises _such court_ to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words “in or in relation to a proceeding _in that court_ ” show that the court which can take action under this section is only the court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power Crl.M.C No.4791 of 2023 14 given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340(1) which corresponds to Section 476(1) of the old Code was examined by this Court in _K. Karunakaran_ v. _T.V. Eachara Warrier_ [(1978) 1 SCC 18 : 1978 SCC (Cri) 32] and in that decision, it has observed: (SCC pp. 25 and 26, paras 21 and 26) “At an enquiry held by the Court under Section 340(1), CrPC, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. … The two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC.” **36.** The above provisions of Section 340 of the Code of Criminal Procedure are alluded only for the purpose of showing that necessary care and caution are to be taken before initiating a criminal proceeding for perjury against the deponent of contradictory statements in a judicial proceeding. Crl.M.C No.4791 of 2023 15 **37.** The mere fact that a deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself always sufficient to justify a prosecution for perjury under Section 193 IPC but it must be established that the deponent has intentionally given a false statement in any stage of the ‘judicial proceeding’ or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. Further, such a prosecution for perjury should be taken only if it is expedient in the interest of justice. ## 9. Later in **State (NCT of Delhi) v. Pankaj Chaudhary** , 2019 (11) SCC 575 after surveying all previous precedents, the Apex Court, has encapsulated the law as under: **49.** There are two preconditions for initiating proceedings under Section 340 CrPC: ( _i_ ) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause ( _b_ )( _i_ ) of sub-section (1) of Section 195 CrPC, and ( _ii_ ) it is expedient in the interests of justice that an inquiry should be made into the alleged offence. Crl.M.C No.4791 of 2023 16 **50.** Observing that the court has to be satisfied as to the prima facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)( _b_ ) CrPC, this Court in _Amarsang Nathaji_ v. _Hardik Harshadbhai Patel_ [ _Amarsang Nathaji_ v. _Hardik Harshadbhai Patel_ , (2017) 1 SCC 113 held as under : (SCC pp. 117-18, paras 6-8) “ _6_ . The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See _K.T.M.S. Mohd._ v. _Union of India_ [ _K.T.M.S. Mohd._ v. _Union of India_ , (1992) 3 SCC 178 : 1992 SCC (Cri) 572] .) The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case. _7_ . In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been Crl.M.C No.4791 of 2023 17 committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See _Pritish_ v. _State of Maharashtra_ [ _Pritish_ v. _State of Maharashtra_ , (2002) 1 SCC 253 : 2002 SCC (Cri) 140] .) _8_ . In _Iqbal Singh Marwah_ v. _Meenakshi Marwah_ [ _Iqbal Singh Marwah_ v. _Meenakshi Marwah_ , (2005) 4 SCC 370 : 2005 SCC (Cri) 1101] , a Constitution Bench of this Court has gone into the scope of Section 340 CrPC. Para 23 deals with the relevant consideration : (SCC pp. 386-87) ‘ _23_ . In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)( _b_ ), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)( _b_ ). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or Crl.M.C No.4791 of 2023 18 impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.’ ” The same principle was reiterated in _Chintamani Malviya_ v. _High Court of M.P._ [ _Chintamani Malviya_ v. _High Court of M.P._ , (2018) 6 SCC 151 : (2018) 3 SCC (Cri) 89] **51.** It has been consistently held by this Court that prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and that prosecution ought to be ordered where it would be expedient in the interest of justice to punish the delinquent and not merely because there is some inaccuracy in the statement. In _Chajoo Ram_ v. _Radhey Shyam_ [ _Chajoo Ram_ v. _Radhey Shyam_ , (1971) 1 SCC 774 : 1971 SCC (Cri) 331] , this Court held as under : (SCC pp. 779-80, para 7) “ _7_ . The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing Crl.M.C No.4791 of 2023 19 false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems somewhat mechanical and superficial : it does not reflect the requisite judicial deliberation….” 10. Explaining the provisions, it was held by the Apex Court that Section 340 of the Code of Criminal Procedure (Cr.P.C) confers an inherent power on a court to make a complaint in respect of an offence committed in or in relation to a proceeding in that court. However, the court can only take action under this section if it is of the opinion that it is expedient in the interest of justice. The only question that needs to be considered at an enquiry held by the court under Section 340(1) is whether a prima facie case is made out which, if unrebutted, may have Crl.M.C No.4791 of 2023 20 a reasonable likelihood to establish the specified offence. The Court also held that the prosecution for perjury should be taken only if it is expedient in the interest of justice. The mere fact that the deponent has made contradictory statements at two different stages in a judicial proceeding is not by itself sufficient to justify a prosecution for perjury under Section 193 of the Indian Penal Code (IPC). It must be established that the deponent has intentionally given a false statement in any stage of the ‘judicial proceeding’ or fabricated false evidence for the purpose of being used in any stage of the judicial proceeding. The court is required to carefully consider all the relevant factors before deciding whether to initiate a criminal proceeding for perjury against the deponent of contradictory statements in a judicial proceeding. The Court deciding the question may have to consider the nature of the contradictory statements, the context in which the statements were made, the motive of the deponent in making the statements, the impact of the statements on the judicial proceeding and whether it is in the interest of justice to initiate a prosecution for perjury. The court should also be mindful of the fact that a prosecution for perjury can have a serious impact on the individual’s reputation and livelihood. In view of Crl.M.C No.4791 of 2023 21 the above, the court shall ensure that the prosecution is initiated only if it is absolutely necessary. 11. The next question is whether Section 340 of the Criminal Procedure Code, 1973 mandates a preliminary inquiry and an opportunity of hearing to the proposed accused before a complaint is made under Section 195 of the Code by a Court. The incidental question was with regard to the scope and ambit of such preliminary inquiry. In **State of Punjab v Jasbir Singh** 2022 SCC Online SC 1240, a reference was made to a bench of Three Judges of the Apex Court in view of the conflicting principles noticed in **Pritish v. State of Maharashtra** (2002) 1 SCC 253 and **Sharad Pawar v. Jagmohan Dalmiya** (2010) 15 SCC 290. The question that was referred to was as under: “(i)Whether Section 340 of the Criminal Procedure Code, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court? (ii) what is the scope and ambit of such preliminary inquiry?” The reference was answered as under in paragraph Nos.5 to 11. Crl.M.C No.4791 of 2023 22 5. To put the aspect in the right perspective and in sequence, we may note that the first judgment of three Judges Bench was Pritish v. State of Maharashtra (2002) 1 SCC 253 which noticed that the purpose of a preliminary inquiry under Section 340(1), Cr.P.C. was not to find whether a person is guilty or not but only to decide whether it was expedient in the interest of justice to inquire into the offence. It was thus observed that the Court is not obliged to make a preliminary inquiry on a complaint but if the Court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that offence should be further probed into. **6.** The reference order is a conflicting view in Sharad Pawar v. Jagmohan Dalmiya (2010) 15 SCC 290 to the extent that in para 7 while noticing the submissions of the counsels it was observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 Cr.P.C. and “also to afford an opportunity of being heard to the defendants, which was admittedly not done.” The latter was stated to be contrary to the view in Pritish's case (supra). **7.** The reference order also simultaneously noted the observations in the Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 which was post the judgment in Pritish's case (supra) but prior to the judgment in Sharad Pawar's case (supra). In this behalf the extracted portion in 23 of the judgment reads as under: “In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words “Court is of opinion that it is expedient in the interest of justice.” This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by Crl.M.C No.4791 of 2023 23 the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. (Emphasis supplied)” **8.** On having considered the matter, it is our view that the Constitution Bench's view would naturally prevails that makes the legal position quite abundantly clear. Not only that, if we may notice, what is reported in Sharad Pawar's case (supra) is only an order and not a judgment. An order is in the given factual scenario. The judgment lays down the principles of law. The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. The observations in the quoted paragraph extracted aforesaid apparently came out of the flow of the order rather than pronouncing any principles of law and that is why the Bench itself categorized what is observed as an order i.e, in the given factual scenario. **9.** We have little doubt that there is no question of opportunity of hearing in a scenario of this nature and we say nothing else but that a law as enunciated by the Constitution Bench in Iqbal Singh Marwah's case (supra) is in line with what was observed in Pritish'case (supra). **10.** Interestingly, both the judgments in Pritish's case and the Constitution Bench judgment in Iqbal Singh Marwah's case (supra) have not been noted in the order passed in Crl.M.C No.4791 of 2023 24 Sharad Pawar's Case (supra). The answer thus to the first question raised would be in the negative. **11.** Insofar as the second question is concerned, the scope and ambit of such a preliminary inquiry, also stands resolved in terms of the Constitution Bench judgment of this Court in the Iqbal Singh Marwah's case (supra) as referred to aforesaid. 12. It was held that no opportunity needed to be given to the prospective accused. As regards the scope of inquiry, the Supreme Court has held that before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. 13. In the instant case, the petitioner was examined as DW1 in the suit instituted by Sri. George for realization of compensation for malicious prosecution. When examined before the court, the petitioner was fully aware that the legality of the actions taken by him in the case registered by him was relevant to decide the issue which was the Crl.M.C No.4791 of 2023 25 subject matter of consideration for the court. During cross examination, specific questions were put to him with regard to the order of censure passed against him on the complaint lodged by the victim. The relevant portion of the evidence tendered by the petitioner is extracted below for easy reference. “വാദിനി�ൾെ�തിെര േലാകാ��യിൽ പരാതിെകാ�� (Q). വാദി എനിെ�തിെരഎ�ായിട�ംപരാതിെ�� (A). േലാകാ�� S.P. േയാട് അേന�ഷി�ാൻ ഉ�രവി� (Q). അെത. (A) നി�ൾ അധികാര �ർവിനിേയാഗം െചയ് �െവ�കെ��ി (Q). ശരിയ� (A). നി�ൾ�് എതിെരശി�ണനടപടിസ�ീകരി� (Q) ശരിയ� (A) നി�െള Censure െചയ് � (Q) ഇ�; എെ� service book േനാ�ിയാൽ അറിയാം (A).” 14. The records clearly disclosed that George had submitted various complaints before the higher authorities and sought initiation of action for false prosecution. It was consequent to the same that the punishment of censure was imposed on the petitioner. The learned District Judge had occasion to consider Exhibits A1 to A4, which clearly disclosed that the petitioner was cognizant of all the proceedings which ultimately led to the censure and also the order of censure at the time of tendering the evidence. The learned District Judge came to the Crl.M.C No.4791 of 2023 26 conclusion that, being a senior police officer, the petitioner was fully aware that in a case for malicious prosecution, the fact that disciplinary proceedings were initiated against him and that punishment was awarded in connection with the very same incident was a very relevant aspect in deciding the case. Being fully aware of the above fact, the petitioner pointed questions put to him gave answers which were inherently false to his knowledge. He stated in unmistakable terms that he was not awarded a punishment of censure. He went on to state that this fact would be evident by producing the service book. As rightly held by the learned District Judge, furnishing of such a statement cannot be regarded as merely giving a contradictory statement while in the box. The petitioner was fully aware of the consequences of giving such an answer. The learned judge came to the conclusion that there are prima facie materials to conclude that an offence punishable under Section 193 of the Indian Penal Code was committed by the respondent. The learned judge has also held that, being a police officer, the petitioner was bound to depose the true facts before the court. He has given a false and wrong answer only to escape from the liability. It was also held that the question put to him and the answer was very relevant in deciding the Crl.M.C No.4791 of 2023 27 matter in issue in that case. It was after holding so that the learned District Judge came to the conclusion that this is a fit case in which an enquiry is to be conducted under the Code. Having reconsidered the matter, I find no reason to interfere with the considered order passed by the learned District Judge. This petition is dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V,** **JUDGE** NS Crl.M.C No.4791 of 2023 28 ## **`APPENDIX OF CRL.MC 4791/2023`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure A1`|`TRUE COPY OF THE JUDGMENT IN O.S. NO.:292`| ||`OF`<br>`2007`<br>`OF`<br>`THE`<br>`SUB`<br>`COURT,`<br>`PERUMBAVOOR`| ||`DATED 20.12.2011`| |`Annexure A2`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`ORDER`<br>`IN`<br>`I.A. NO.:1547`| ||`OF`<br>`2013`<br>`IN`<br>`O.S.`<br>`NO.:292`<br>`OF`<br>`2007`<br>`OF`<br>`THE`| ||`SUB COURT, PERUMBAVOOR`| |`Annexure A3`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`APPEAL`<br>`MEMORANDUM`<br>`IN`| ||`C.M.A.`<br>`NO.`<br>`75`<br>`OF`<br>`2016`<br>`BEFORE`<br>`THE`| ||`ADDITIONAL`<br>`DISTRICT`<br>`JUDGE`<br>`-`<br>`VIII,`| ||`ERNAKULAM`| |`Annexure A4`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`JUDGMENT`<br>`IN`<br>`C.M.A. NO.`| ||`75 OF 2016 ON THE FILES OF THE ADDITIONAL`| ||`DISTRICT JUDGE - VIII, ERNAKULAM`| |`RESPONDENT ANNEXURES `|`:`| |`Annexure R3-1`|`THE`<br>`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`ORDER`<br>`IN`<br>`CRL.M.A.`| ||`NO.9216/2004 DATED 23.11.2004`| |`Annexure R3-2`|`THE`<br>`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`ORDER`<br>`IN`| ||`CRL.R.P.NO.2006/2003 DATED 29/10/2009`| |`Annexure R3-3`|`THE TRUE COPY OF THE ORDER NO.E4-10210/04`| ||`DATED 17/12/2005.`| |`Annexure R3-4`|`THE TRUE COPY OF REPLY OF SPIO LETTER NO.`| ||`A1-11566/13 DATED 25/09/2013`| |`Annexure R3-5`|`THE`<br>`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`COMPLAINT`<br>`FILED`| ||`BEFORE`<br>`THE`<br>`HONOURABLE`<br>`COURT`<br>`O.P.`| ||`NO.19556/2000 DATED 11.7.2000`| |`Annexure R3-6`|`THE`<br>`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`ORDER`<br>`DATED`| ||`12/07/2000 IN OP NO.19556/2000`|