P.S.GANAPATHI SWAMI v. KARTHIKEYAN, N.V. BALAN and STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **THURSDAY, THE 15TH DAY OF JUNE 2017/25TH JYAISHTA, 1939** ## **CRL.A.No. 584 of 2004 ( )** **-------------------------AGAINST THE ORDER/JUDGMENT IN CRL.MP 993/2001 IN SC NO.73/1998 of SESSIONS COURT,THRISSUR DATED 22-08-2001** ## **APPELLANT(S)/PETITIONER::** **------------------------** **P.S.GANAPATHI SWAMI, S/O. SUBRAMANIAN, RESIDING AT "VIDYA" CHERPU DESOM, POOTHARAKKAL,, CHOVOOR VILLAGE, THRISSUR TALUK.** ## **BY ADVS.SRI.THOMAS M.JACOB SRI.P.M.MOHAMMED SHIRAZ** ## **RESPONDENT(S)/RESPONDENTS 1 & 2::** **---------------------------------** **1. KARTHIKEYAN, S/O.VAZHAPPILLYVEETTILSANKARAN, CHOVOOR VILLAGE, DESOM, THRISSUR TALUK.** ## **2. N.V.BALAN, S/O. VELAYUDHAN,** **NOW WORKING AS S.I. SPECIAL BRANCH POLICE DEPARTMENT, THRISSUR.** **3. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA.** **R1 BY ADVS. SRI.P.V.CHANDRA MOHAN SRI.N.P.SAMUEL** **R2 BY ADVS. SRI.P.M.RAFIQ SRI.P.VIJAYA BHANU** **R3 BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SHG/** **(C.R.)** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.584 of 2004** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of June, 2017** ## **J U D G M E N T** This appeal is preferred under Section 341 of Cr.P.C. against the order dated 22.8.2001 made in Crl.M.P. 993/2001 of Sessions Court, Thrissur. 2. The facts necessary for disposal of this criminal appeal is as follows: The appellant herein was the accused in S.C.No.73/1998. The offence alleged therein was under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. A boy aged about 13 years, who was examined as PW2 before the court below, was the victim and it was alleged that the accused called the caste name in a public place while he was going to play. It is also the case that since his cousin was coming, the accused went away. After 5 or 6 days, a complaint was filed before police knowingly that it was a false complaint. It was 2 Crl.A.No.584 of 2004 accepted by the 2[nd] respondent herein and a crime was registered for an offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The complaint before police was filed by the 1[st] respondent herein. Thereafter investigation was conducted and accused surrendered before the special court i.e. Sessions Court, Thrissur and bail was granted on the very same day. After investigation, final report was filed and court took cognizance and the appellant herein was released on bail on the very same conditions on which he was released at the crime stage. 3. The case was tried. PWs 1 to 8 were examined and Exts.P1 to P4 were marked. On the side of the defence Exts.D1 to D3 were also marked. It is pertinent to note that the case was conducted by the appellant himself. After consideration, the Sessions Judge acquitted the accused. Thereafter, after a passage of one year and 8 months, an application under Section 340 of Cr.P.C. was filed as Crl.M.P.No.993/2001 before the Sessions Court requesting Crl.A.No.584 of 2004 3 to file a complaint before the concerned Magistrate for initiating prosecution for giving false evidence before the Special Court. That petition was dismissed by the court below. Aggrieved by the said dismissal order, this appeal is filed by the appellant. 4. Today, when the appeal came up for hearing, Adv. Sri. Thomas M. Jacob appeared for the appellant and submitted before this court that in paragraph 33 of the judgment of acquittal, the then Sessions Judge categorically stated that “I can perceive the agony of the accused. Here was an unfair allegation being made against him”. It is also highlighted before me that in paragraph 34, it is stated that “the accused does not appear to be far from truth when he lamented before this court that this false complaint and prosecution was initiated by PW6 with the tacit prior approval of the higher officials of the police”. It is also opined in paragraph 40 that “they (police officer) have acted without conscience”. Thus, it can be seen that a false evidence has been tendered not only by the 1[st] respondent Crl.A.No.584 of 2004 4 but also by the 2[nd] respondent and the court should not have dismissed the petition. 5. I heard the learned counsel appearing for the 1[st] respondent. It is the submission that it is a case where an allegation under the special statute was made. When a cognizable offence is made out, a police officer is bound to record the same and register the crime. It is relevant to note that the Sessions Court not categorized the evidence of PW2 as false. It is only on the background of the other incidents, the court came to a conclusion that an offence is not made out. The main ground on which allegation was found to be false is that there was a delay of about 4 – 5 days in lodging the F.I. Statement. According to the learned counsel for the respondent, that itself is an indication of truth. If a false statement was actually given, the date also could have been changed and can be given as one occurred immediately before lodging the complaint. It was not done so. Under such circumstances, considering all these aspects the court not proceeded under Section 340 of Cr.P.C. The 5 Crl.A.No.584 of 2004 learned counsel appearing for the 2[nd] respondent submitted before me that only because an accused was acquitted, it cannot be said that it was an honourable acquittal. The acquittal may be for the reason of extending benefit of doubt. It is the submission that in this case, no material marked in the proceeding and on an enquiry conducted by the court, an order was passed highlighting all these aspects by the Sessions Judge. 6. After hearing the learned counsel on both sides and the learned Public Prosecutor, it can be seen that the allegation was made against the first informant as well as the police officer alleging that false evidence was given before court. It can be seen that the application under Section 340 of Cr.P.C. was seen filed after a passage of one year and eight months. That aspect was seen considered by the court and after a detailed consideration, the court below decided not to proceed with the matter. The categoric assertion by the court below in its order in Crl.M.P.993/2001 is as follows: Crl.A.No.584 of 2004 6 “A perusal of the judgment shows that even though this court did not believe the evidence of PW1, who was the first respondent in this petition, this court has not entered into any specific finding to the effect that he was deliberately giving false evidence warranting an action under Section 340 of Cr.P.C. I do not think it is just and proper to initiate such an action after the lapse of about one year and 8 months”. 7. The offence alleged is affecting the administration of justice. By virtue of Section 195 of Cr.P.C., only upon a complaint in writing of that court by such officer of the court as that court may authorize in writing in this behalf, or of some other court to which that court is subordinate, a magistrate court can take cognizance of the offence. Thus, what comes out is that a competent magistrate court cannot take cognizance of an offence affecting the administration of justice where Section 195 of Cr.PC. is applicable without a complaint as stated above. To effectively deal with such a Crl.A.No.584 of 2004 7 situation, two routes are given to the court under Section 340 of Cr.P.C. One is that where the court suo motu makes a finding in this regard and proceeds and the second one is upon an application. Thus, it can be seen that Section 340 of Cr.P.C. opens a venue for any citizen to bring to the notice of the concerned court regarding the commission of an offence whenever Section 195 of Cr.P.C is applicable. When there is such an application, the court can after such preliminary enquiry, if any, as the court thinks necessary, record finding to that effect and make a complaint thereof in writing. 8. Hon'ble Apex Court, after referring the earlier decisions in **Ashok Kumar Aggarwal v. Union of India and Ors [2013 KHC 4900]** , in paragraph No.10 held as follows: “10. In view of the above, law on the issue can be summarised that in order to initiate prosecution for perjury, the court must prima facie reach a conclusion after holding preliminary inquiry that there has been a deliberate and conscious effort to misguide the court and interfere in the administration of justice. More so, it has to be seen whether such a prosecution is necessary in the interest of justice. The case is required to be decided in light of the Crl.A.No.584 of 2004 8 ## aforesaid settled legal proposition.” 9. It can be seen that when the court decided to make a complaint after conducting a preliminary enquiry, the court should record a finding to that effect. It is to be remembered that whenever an acquittal is therein, it does not mean that there should be a complaint under Section 340 of Cr.P.C. There should be a situation where there was deliberate and conscious attempt to interfere in the administration of justice. 10. Thus, in the case in hand, after considering the facts of the case, the court below came to a conclusion that a complaint need not be forwarded to the Magistrate under Section 340 of Cr.P.C. 11. When offences are subject to Section 195 of Cr.PC., the court which has to forward the complaint in writing to take cognizance also will have a discretionary power not to order to file a complaint under Section 340 of Cr.P.C. This is apparent and evident from the words “court is of opinion that it is expedient in the interest of justice”. Crl.A.No.584 of 2004 9 This judicial discretion when exercised, it should be in the larger interest of administration of justice. Every incorrect or false statement does not make it incumbent upon the court to order prosecution. The court should be careful not to become a tool in the hands of persons with concealed intention of vengeance. In this case, there is also another danger, apart from the first informant to police regarding the commission of the offence, the police officer who registered the crime also arrayed as respondent. The alleged victim was a minor. If in all acquitted criminal cases, if a complaint is filed under Section 340 of Cr.P.C., the police officers cannot function effectively, fearlessly and independently. He can be prosecuted only when there was flagrant violation of faith reposed by the state upon him, in using the powers vested on him by law. In other words, prima facie, there should be a deliberate and conscious attempt to commit perjury. Thus, the picture will be clear, the court has to look whether his act was prima facie deliberate and conscious to affect the administration of Crl.A.No.584 of 2004 10 justice. After appreciating materials before it, court has to use its discretionary power to proceed or not to proceed with the matter. When a court used that discretionary power, after application of mind and only if it was found that the lower court apparently abstained from doing its duty, then only a higher court will be justified to interfere with its order. Thus, after going through the order, I feel that there is no such illegality committed by the court below which warrants an interference with the order of the court below. The court below judicially used its discretionary power under Section 340 of Cr.P.C. Under such circumstances, there is no merit in this appeal. Hence the appeal is dismissed. No cost. Sd/- ## **K.P. JYOTHINDRANATH, JUDGE** //True copy// P.A. TO JUDGE shg/