PRADEEP S/O PRABHAKARAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.2307 OF 2012** **CRA 109/2010 OF ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA** **CC 896/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, THODUPUZHA** ## **REVISION PETITIONER/S:** **PRADEEP S/O.PRABHAKARAN, KAMACHERIL HOUSE, EDAMARUKU KARA, UDUMPANNOOR VILLAGE, THODUPUZHA TALUK.** **BY ADVS. SRI.KOSHY GEORGE SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI. M.S. BREEZ (SR.P.P.)** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRRP No.2307/2012 ..2.. ## **O R D E R** The revision petitioner was PW3 in CC No. 422 of 2006 on the file of the Chief Judicial Magistrate Court, Thodupuzha for the offences punishable under Sections 324, 326 and 506(ii) of the Indian Penal Code (hereinafter referred to as, “IPC”). During the trial of the said case, the revision petitioner was examined in chief as PW3 on 02.04.2008. Thereafter, his cross examination was adjourned from time to time and finally, he was cross examined on 22.10.2008. In CC No. 422 of 2006 on the file of the Chief Judicial Magistrate Court, Thodupuzha, PW2 was the injured. In chief examination, PW3 stated that he had witnessed the accused therein assaulting PW2. However, during cross examination, he turned hostile to the prosecution, denying his version in the CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** chief examination. The learned Chief Judicial Magistrate, who tried the case, was of the view that PW3, the revision petitioner herein, intentionally adduced false evidence and in the interest of justice, he should be prosecuted for the offence punishable under Section 193 of the IPC. Having found so, the learned Chief Judicial Magistrate gave an opportunity to PW3 to show cause as to why proceedings under Section 340(1) of the Code of Criminal Procedure (hereinafter referred to as, “Cr.P.C.”) shall not be initiated against him. In response to the same, the PW3 submitted before the court that he was not aware of the consequences and prayed for mercy of the court. However, the learned magistrate conducted enquiry under Section 340(1) of Cr.P.C. and entered a finding that PW3 had committed an offence punishable under Section 193 of the IPC. Accordingly, the learned CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** Chief Judicial Magistrate prepared a complaint and forwarded to the Judicial First Class Magistrate Court-I, Thodupuzha for trial and disposal. 2. On the appearance of the PW3/accused, the learned magistrate, after having heard both sides, framed charge under Section 193 of the IPC against the accused. The charge was read over, to which the accused pleaded not guilty. In the trial that followed, PWs 1 and 2 were examined and marked Ext.P1. On closing the evidence of the prosecution, the accused was questioned under Section 313(1)(b) of the Cr.P.C. He denied all the incriminating circumstances appearing in the evidence against him. However, he produced Ext.D1 judgment in Crl.Appeal No. 304 of 2008 on the file of the Additional Sessions judge (Adhoc-I), Thodupuzha, wherein the accused, who was convicted by the trial court in CC No. CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** 422 of 2006, was found not guilty of the offences alleged against him and was accordingly acquitted thereunder. 3. On appreciation of the evidence, the trial court convicted and sentenced the accused to undergo simple imprisonment for the one year for the offence punishable under Section 193 of the IPC. Challenging the conviction and sentence, the accused preferred Crl.Appeal No.109 of 2010 before the III Additional Sessions Court, Thodupuzha. The learned Additional Sessions Judge dismissed the appeal confirming the conviction and sentence rendered by the trial court. 4. Heard Sri.Koshy George, the learned counsel for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor. 5. Going by Section 195(1)(b)(i) of Cr.P.C., in respect of prosecution for contempt of lawful CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** authority of public servants, for offences against public justice and for offences relating to documents in evidence, no court shall take cognizance of offence punishable under Section 193 of the IPC when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, except on a complaint in writing of that court. In the case on hand, the trial was conducted before the Chief Judicial Magistrate Court, Thodupuzha. PW3 was examined in CC No. 422 of 2006 for the offences punishable under Sections 324, 326 and 506(ii) of the IPC. The learned magistrate was of the view that PW3 _prima facie_ committed an offence under Section 193 of the IPC. 6. In the case on hand, the learned magistrate has initiated proceedings under Section 340(1) of Cr.P.C. and after conducting the enquiry, forwarded the complaint to one of the CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** magistrates working under him for trial and disposal. On a perusal of the records of the trial court, it is clear that the complaint was not marked as an exhibit in the case. Instead, PW1, D.Jayaprasad, who was in charge of the prosecution in his capacity as the Deputy Director of Prosecution, was examined. PW2, the Bench Clerk attached to the trial court, was not authorized to prefer a complaint by the court pursuant to the action initiated. Instead, PW2 was examined to prove that the revision petitioner, who was PW3 in CC No. 422/2006 on the file of the Chief Judicial Magistrate Court, Thodupuzha, affixed his signature in her presence. The evidence of PWs 1 and 2 is clear indication that prosecution was not initiated in accordance with the scheme provided under Section 195 of Cr.P.C. 7. It is evident from the facts that the Chief CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** Judicial Magistrate initiated proceedings under Section 340 of the Cr.P.C. and straight away remanded the accused to judicial custody. The learned Chief Judicial Magistrate, thereafter, forwarded a complaint the case to the trial court for trial and disposal. The conduct of the learned magistrate would show that the court, being the complainant, initiated action against the complainant and forwarded the complaint to the trial court without citing a competent person as witness to prove the complaint. 8. Ext.D1 judgment of the appellate court was produced before the trial court to prove that the accused in CC No. 422/2006 on the file of the Chief Judicial Magistrate Court, Thodupuzha was acquitted by the appellate court. On going through Ext.D1 judgment, it is clear that PW3's name is found a place in the First Information Statement lodged by the CRRP No.2307/2012 **==> picture [31 x 8] intentionally omitted <==** police and that the investigation conducted by the prosecution was faulty. The appellate court also found that no reason was offered as to why the weapons allegedly used by the accused to assault the _defacto_ complainant therein were not recovered. The appellate court believed the version of PW3 and acquitted the accused extending benefit of doubt. The appellate court also found that the medical evidence disproves the entire prosecution case. The said finding has become final. Ultimately, the accused in CC No. 422/2006 on the file of the Chief Judicial Magistrate Court, Thodupuzha was found not guilty of the offences punishable under Sections 324, 326 and 506(ii) of the IPC and he was set at liberty. PW3, who was only a witness in the said case, underwent judicial custody in connection with this case and has undergone the agony of criminal prosecution CRRP No.2307/2012 **==> picture [37 x 8] intentionally omitted <==** for the last 12 years. Having considered the facts and circumstances of the case, this Court is of the view that the trial court misconstrued the provisions under Section 340 of the Cr.P.C. and initiated prosecution against PW3 for the offence under Section 193 of the IPC, who is the revision petitioner herein. 9. It is well settled principle of law that inaccuracy in the statement of PW3 is not sufficient to initiate a prosecution under Section 193 of the IPC. There must be _prima_ _facie_ case of deliberate falsehood on a matter of substance and the trial court, where the evidence was let in, must be satisfied that there is reasonable foundation for the charge. The provisions of Section 340 of Cr.P.C. are procedural in nature. Before directing a complaint to be filed before the court, the trial court must form an opinion on being CRRP No.2307/2012 **==> picture [37 x 8] intentionally omitted <==** satisfied and come to a conclusion of such satisfaction that the person charged has intentionally given false evidence and in the interest of justice, it is expedient that he should be prosecuted for the offence punishable under Section 193 of the IPC. In this case, the learned Chief Judicial Magistrate remanded the accused straight away and forwarded the complaint to the trial court. The learned magistrate has not authorized any of the officers working under him to prefer a complaint. This procedure is something unknown to law. In this context, it is relevant to extract paragraphs 6 and 7 in **Vittappan** v. **State** [1987 (2) KLT 174], which are extracted as hereunder; 6. S.340 prescribes the procedure in cases mentioned under S.195 of the Code and an offence under S.193 I.P.C. comes within it. Under S.195(1)(b) of the Code cognizance of such an offence could be taken only on the complaint of the court or the court to which it is subordinate. S.34 corresponds to S.476(1) of the old Code. The opinion expressed by the Sessions Judge regarding the CRRP No.2307/2012 ..12.. requirements of S.340 of the Code does not appear to be correct. The Sessions Judge is of the view that what S.340 expects from the court is only an opinion that an enquiry is necessary in the interest of justice and if such an opinion is formed a complaint could be filed. That may be why the Sessions Judge said that he is not expressing any opinion on the alleged offence. By 'enquiry' what the Sessions Judge understood was trial by the Magistrate on the complaint filed by the court. But the enquiry contemplated in S.340 is an enquiry by the prosecuting court itself and it is regarding the offence which appears to have been committed in or in relation to the proceeding in that Court. It is in such an enquiry that the court has to enter a finding regarding the offence which appears to have been committed. Such an enquiry itself need be conducted only if the court is of opinion that it is expedient in the interests of justice to do so. That means in all cases when it appears to the court that an offence is committed it need not conduct an enquiry for the purpose of taking a decision whether or not a complaint has to be filed. Even if an offence appears to have been committed the enquiry, the consequent finding and the complaint need be only in cases where it is expedient to do so in the interest of justice. Recording a finding by the court regarding commission of the offence is therefore a condition precedent to the prosecution. 7. The provision to record a finding is not merely directory, but is mandatory (Chaduvula Munuswami Naidu v. Emperor, AIR. 1928 Madras 783). When the section requires a certain thing to be done it is not open to the court to say that it is optional to do it or not. Failure to record a finding is not a curable irregularity but it is an illegality. Though the courts are expected to be zealous in putting down perjury to the extent possible, it is not every case of perjury that should form the subject of the enquiry contemplated in S.340. Expediency in the interest of CRRP No.2307/2012 ..13.. justice should be the criterion. Otherwise there could be almost as many prosecutions as the number of witnesses examined because in the evidence of almost each and every witness an element of untruth could be found. 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. To start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material will defeat its very purpose. Some inaccuracy in the statement which may be innocent or immaterial may not justify a prosecution as expedient in the interest of justice. There must be prima facie case of deliberate falsehood on a matter of substance and the court must be satisfied that there is reasonable foundation for the charge. (Chajoo Ram v. Radhey Shyam, AIR 1971 SC, 1367). 10.In view of the above legal principles, it is clear that the trial court, before directing a complaint to be filed under Section 193 of the IPC, failed to consider as to whether PW3 adduced false evidence. Further, the existence of _mens rea_ on the part of PW3 was not established before an action under Section 340(1) of the Cr.P.C. was recommended. Ext.D1 is eloquent in this regard. Merely because PW3 turned hostile to the prosecution, the same CRRP No.2307/2012 ..14.. would not be sufficient to initiate a prosecution under Section 193 of Cr.P.C. challenging the _bonafides_ of PW3. It appears from the facts and circumstances of this case that the trial court, which directed prosecution for perjury, was in an agitating mood against PW3. The prosecution under Section 193 of the IPC is merely intended to safeguard the prestige and dignity of the court and to maintain the confidence of the public at large in the administration of justice. 11.In this case, the materials placed on record would show that this is not a fit case, where it was expedient in the interest of justice to have an enquiry under Section 340(1) of Cr.P.C. to initiate prosecution under Section 193 of the IPC. The impugned order is highly irregular and illegal. Though an appeal was preferred challenging the order of the trial CRRP No.2307/2012 **==> picture [37 x 8] intentionally omitted <==** court for the offence punishable under Section 193 of the IPC, the appeal was dismissed without adverting to the evidence on record. In the result, the Crl.R.P. is allowed. The impugned order of the trial court, which has been confirmed in appeal, is set aside. The revision petitioner is found not guilty of the offence punishable under Section 193 of the IPC and he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. Pending applications, if any, stand disposed of. ## **Sd/-** ## **N.ANIL KUMAR** **JUDGE** Bka/07.12.2020