S.V. Shaji v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.UBAID** **WEDNESDAY, THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940** ## **CRL.A.No. 593 of 2017** **CC 19/2007 of ENQUIRY COMMR.& SPL.JUDGE, THRISSUR** **CC 234/2015 of C.J.M., THRISSUR** **CRIME NO. 1/2006 OF Guruvayoor Police Station, Thrissur** ## **APPELLANT/ACCUSED :** **S.V.SHAJI, S/O VASU, AGED 45 YEARS, SRAMBIKKAL HOUSE, NENMENI DESOM, THAIKKADU, CHAVAKKAD, THRISSUR DISTRICT.** **BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER** ## **RESPONDENTS/STATE & COMPLAINANT :** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 MANAGER, COURT OF ENQUIRY COMMISSIONER AND SPECIAL JUDGE, THRISSUR - 680001. *[DELETED] [THE SECOND RESPONDENT IS DELETED FROM THE ARRAY OF PARTIES AS PER ORDER DATED 19/03/2018 IN CRL.MA.1511/2018].** **BY SRI A RAJESH -SPL PP VACB** ## **OTHER PRESENT:** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 593 of 2017** 2 ## **JUDGMENT** The appellant herein is one of the witnesses cited by the Vigilance and Anti Corruption Bureau (VACB), Thrissur in C.C.No.19 of 2007 of the Special Court (Vigilance), Thrissur. It is a case where a public servant was prosecuted under Section 7 of the Prevention of Corruption Act, 1988 on the allegation of an attempt made to accept an amount of Rs.5,000/- as illegal gratification from a lady for showing some favours to her in the matter of building tax assessment. During trial, the appellant was examined as PW10 in the trial court. During investigation, he and the defacto complainant (the lady) had given statements under Section 164 Cr.P.C. before the learned Magistrate. When the appellant made an attempt to disown the statements given by him under Section 164 Cr.P.C., the learned Additional Public Prosecutor in charge of C.C.No.19 of 2007 before the Special Court obtained the permission of the court below to crossexamine the witness. When cross-examined by the learned Additional Public Prosecutor, the appellant clearly admitted the **CRL.A.No. 593 of 2017** 3 statements given by him under Section 164 Cr.P.C. before the Magistrate, and he also stated that it was truly and voluntarily given by him. But when cross-examined by the learned counsel for the accused, he stated that it was not voluntarily given by him, and that he gave such a statement under Section 164 Cr.P.C. as instructed by the Officers of the VACB. Ultimately, the case ended in acquittal. During the appreciation of the evidence given by the various witnesses, the learned trial Judge found the necessity of proceeding against PW10 (the appellant herein) with a prosecution under Section 193 IPC. The satisfaction of the learned trial Judge is recorded in the judgment in C.C.No.19 of 2007. The Manager of the Court was also directed to file necessary complaint before the Judicial First Class Magistrate Court having jurisdiction as provided under Section 340 Cr.P.C. Accordingly, the Court Manager filed a complaint against the appellant before the Chief Judicial Magistrate Court, Thrissur, and it is now pending as C.C.No.234/2015. The appellant seeks orders quashing the said complaint, and the prosecution before the Chief Judicial Magistrate Court, Thrissur on the ground that such a complaint could not have been filed legally, without conducting **CRL.A.No. 593 of 2017** 4 the enquiry as provided under Section 340 Cr.P.C. 2. The learned counsel for the appellant submitted that an enquiry as provided under Section 340 Cr.P.C. is necessary, and it is rather mandatory before proceeding to file a complaint as prescribed under Section 340 Cr.P.C., and in this case, the Special Court directed filing of complaint without conducting such an enquiry. He also cited a decision of this Court in **Babu P. Benedict v. Principal, Motor Accident Claims Tribunal [2010(1) KLT 445]** . But the learned Public Prosecutor cited a decision of the Honourable Supreme Court on the point in **Pritish v. State of Maharashtra and others [2002(1) Supreme Court Cases 253]** , and submitted that such an enquiry is not mandatory at all. 3. The learned counsel for the appellant cited a decision of this Court in **Thomman v. IInd Addl. Sessions Judge [1993(2) KLT 774]** , and submitted that a prosecution is possible under section 193 Cr.P.C. only when the Court comes to a finding that one of the statements given by the witness is false. Ofcourse, whether the appellant has given any false statement, or which of the statements given by him is false, can be decided **CRL.A.No. 593 of 2017** 5 only during trial. This is not the stage to apply the decision in Thomman's case. 4. In paragraph 31 of the judgment in C.C.No.19 of 2007, the Special Court (Vigilance) has discussed the evidence given by the appellant before the Court as PW10, and the learned trial Judge has also come to a prima facie finding that one of the statements given by the appellant is false. Either the statement given by him under Section 164 Cr.P.C. must be false, or the statement given by him before the trial court must be false. The learned trial Judge came to the required finding on an examination of the entire evidence given by the appellant as PW10. 5. In Pritish's case (cited Supra), the Honourable Supreme Court has settled the position that the witness against whom a prosecution under Section 193 IPC is proposed, is not entitled for notice under Section 340 Cr.P.C. The Honourable Supreme Court also held that the purpose of preliminary enquiry under Section 340 Cr.P.C. is not to find whether a person is guilty or not, but it is only to decide whether it is expedient in the interest of Justice to inquire into the offence. In paragraphs **CRL.A.No. 593 of 2017** 6 ## 15 and 16 of the judgment, the Honourable Supreme Court held ## thus; “15. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not.” “16. Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of Justice. In _M.S.Sheriff v. State of Madras_ a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.” 6. Ofcourse, before deciding to file a complaint against the person who is suspected to have given false evidence in Court, the Court may conduct an enquiry as prescribed under section 340 Cr.P.C., and after such enquiry the Court will have to record a finding **CRL.A.No. 593 of 2017** 7 regarding the necessity of making a complaint against the said person. What is required, as held by the Honourable Supreme Court, is only the satisfaction of the Court for proceeding against the concerned person, and for filing a complaint against him before the Court concerned, and once the Court has come to such satisfaction, the necessity of making a complaint will have to be recorded. This is what is provided under Section 340 Cr.P.C. The paragraphs 31 and 32 of the judgment of the Special Court will clearly reveal that the learned trial Judge directed the Court Manager to file complaint against the appellant after coming to the satisfaction and finding that such a complaint is necessary, and that there is reason to believe that the appellant has given false statements either before the Special Court or before the learned Magistrate under Section 164 Cr.P.C. I find that the satisfaction of the learned trial Judge, and the finding made by him regarding the necessity of a complaint, contained in Paragraphs 31 and 32 of the judgment, is in substantial compliance of the provisions in Section 340 Cr.P.C. That the appellant was not given a notice, will not vitiate the prosecution initiated by the learned trial Judge in view of the position settled by the Honourable Supreme Court in the decision cited Supra, and when the learned trial Judge has clearly recorded his findings, and **CRL.A.No. 593 of 2017** 8 also the necessity of making a complaint against the appellant. I find no illegality or irregularity in the decision taken by the learned trial Judge, and I find no reason to quash the prosecution initiated against the appellant at the instance of the learned trial Judge after the required procedure under Section 340 Cr.P.C. The Chief Judicial Magistrate Court, Thrissur is directed that the case shall be decided on merits without in any manner being influenced by this judgment. **Sd/P.UBAID** rkj **JUDGE**