THACHARAKKAL PADUVATTIL SOUDA v. V.P. ZACHARIYA & STATE OF KERALA

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 4TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 ``` ``` CRL.REV.PET NO. 261 OF 2014 ``` ``` [AGAINST THE ORDER IN C.M.P.NO.8243/2013 IN C.C.NO.1098/2011 OF THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE -1, TIRUR DATED 29.01.2014 RENDERED IN THE COMMON ORDERS IN C.M.P.NO.6241/2013 AND C.M.P.NO.8243/2013] ``` ## `REVISION PETITIONERS:` |`1`|`THACHARAKKAL PADUVATTIL SOUDA`<br>`W/O V.P. KUNHIMOOSA, VALIYAPEEDIYAKKAL HOUSE,`<br>`CHERUPUNAN, P.O. MUTTANNUR-676 102.`| |---|---| |`2`|`V.P.KUNHIMOOSA`<br>`S/O V.P.KASIM HAJI, VALIYAPEEDIYAKKAL HOUSE,`<br>`CHERUPUNAN, P.O., MUTTANNUR-676 561.`| ||`BY ADVS.`<br>`SRI.M.REVIKRISHNAN`<br>`SRI.VIPIN NARAYAN`| ## `RESPONDENTS:` |`1`|`V.P.ZACHARIYA`<br>`S/O LATE V.P.KASIM HAJI, VALIYAPEEDIYAKKAL HOUSE,`<br>`VAKKAD P.O.-676 502.`| |---|---| |`2`|`STATE OF KERALA`<br>`REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,`<br>`ERNAKULAM, PIN:682 031.`| ||`BY ADVS.`<br>`R1 BY SHRI.K.RAMKUMAR SR.ADV.`| ## `OTHER PRESENT:` ``` FOR R2 BY SRI.M.P. PRASHANTH, PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01.11.2022 THE COURT ON 04.11.2022 PASSED THE FOLLOWING: ``` 2 ``` Crl.RP No.261/2014 ``` ## `O R D E R` ``` The Revision Petitioners are the accused ``` ``` Nos.1 and 2 in C.C.No.1098/2011 on the file of the Judicial First Class Magistrate Court-1, Thrissur which was registered based on a private complaint submitted by the 1[st] ``` ``` respondent herein alleging offences punishable ``` ``` under Sections 120B,166,167,197,198 and 403 ``` ``` r/w. Section 34 of the Indian Penal Code ``` ``` (IPC). Apart from the petitioners, accused ``` ``` Nos.3 and 4 were also implicated who were public servants working as Village Officer of ``` ``` Mangalam Village and the Tahsildar, Tirur ``` ``` Taluk, respectively. The allegations contained in the complaint in brief, are as follows: ``` ``` There was a case pending before the High Court of Madras as A.No.7661/2007 in which the ``` 3 ``` Crl.RP No.261/2014 ``` ``` 1[st] respondent/complainant and the 2[nd] accused were parties. As per the proceedings thereof, ``` ``` certain properties were under the custody of the receiver appointed by the court and certain amounts were under deposit before the court as part of the said proceedings. An order was passed by the High Court of Madras directing the release of an amount of Rs.5 ``` ``` lakhs to the 2[nd] respondent/2nd petitioner herein on furnishing sufficient security for the same. To get the said amount released, accused Nos.1 and 2, who are the petitioners ``` ``` herein, allegedly hatched a conspiracy with accused Nos.3 and 4, who were the Village Officer and Tahsildar, respectively and ``` ``` created a false solvency certificate in the name of the 1[st] accused/1st petitioner herein. ``` ``` Later, the said solvency certificate was produced before the High Court of Madras, and ``` 4 ``` Crl.RP No.261/2014 ``` ``` the amount, as ordered by the Court was released in favour of the 2[nd] accused/2[nd] ``` ``` petitioner. The aforesaid solvency certificate ``` ``` pertains to a property having an extent of 3.61 acres of land covered by document No.2634/1986 of SRO, Kadakkal. According to ``` ``` the complainant/1st respondent herein, the 1[st] ``` ``` accused/1st petitioner herein in whose name ``` ``` the solvency certificate was issued was having only 9/16 shares in the said property and the ``` ``` other co-sharers were the 1[st] respondent, one Samad, Fasla and Fathima. However, in the ``` ``` solvency certificate issued in favour of the ``` ``` 1[st] petitioner, the property was shown to be in ``` ``` the exclusive title of the 1[st] petitioner. The ``` ``` complaint was submitted by the 1[st] respondent ``` ``` in such circumstances before the Judicial First Class Magistrate Court, Tirur for the offences mentioned above. ``` 5 ``` Crl.RP No.261/2014 ``` ``` 2.The learned Magistrate had taken cognizance of the offences and as part of pre-charge evidence as contemplated under Section 244 Cr.PC, evidence was adduced by the complainant. As part of the same, PWs.1 to 3 were examined and Exhibits P1 to P22 were marked. Thereupon, C.M.P.No.6241/2013 was filed by the 1[st] respondent/complainant foralteration/additionofcharges. C.M.P.No.8243/2013 was submitted by the ``` ``` petitioners herein seeking to dismiss the complaint for want of sanction under Section 197 Cr.PC. The contention of sanction was raised by the petitioners on the ground that the accused Nos.3 and 4 were public ``` ``` servants and therefore, it was contended that the cognizance taken without sanction under Section 197 Cr.PC is bad. It is pertinent to note that, when the aforesaid ``` 6 ``` Crl.RP No.261/2014 ``` ``` applications were submitted, accused Nos.3 and ``` ``` 4 were no more and despite the same, it was ``` ``` contended that, sanction was necessary, even if the accused persons for whom sanction was ``` ``` mandatory are no more. ``` ``` 3.After considering all the relevant ``` ``` aspects, a common order was passed by the learned Magistrate on 29.1.2014 wherein, it ``` ``` was held that the charges would be framed against the 1[st] and 2[nd] accused, under Section 120B, 198, 403 and 471 r/w. Section 34 of the IPC. The offences under the other sections ``` ``` which were mentioned in the private complaint were deleted. Section 471 of IPC, which was ``` ``` not mentioned in the complaint was added. This Crl.RP is submitted by the petitioners challenging the said common order as against the findings in CMP No.8243/2013. ``` 7 ``` Crl.RP No.261/2014 ``` ``` 4.Heard Sri. M. Ravikrishnan, the learned ``` ``` counsel for the petitioners, Sri.K. Ramakumar, the learned Senior Counsel for the 1[st] ``` ``` respondent and Sri.M.P.Prashanth, the learned Public Prosecutor appearing for the State. ``` ``` 5.Even though one of the main contentions ``` ``` raised before the court below was the lack of sanction under Section 197 Cr.PC, the specific ground that was strongly urged during the course of the hearing by the learned counsel for the petitioners before this court was that the prosecution is barred by virtue of the statutory stipulations contained in Section 195(1)(b) of Cr.PC. The learned counsel also places reliance upon the judgment rendered by aSingle Bench of this Court in K.A. Kuttiah v. the Federal Bank Ltd. and Ors.[2006(3)KLT 418]. ``` 8 ``` Crl.RP No.261/2014 ``` ``` 6.On the other hand, the learned Senior Counsel would rely upon the principles laid down by the Hon’ble Supreme Court inSachid Nand Singh and Another v. State of Bihar and Another [(1998) 2 SCC 493] andIqbal Singh Marwah v. Meenakshi Marwan [(2005)4 SCC 370]. By placing reliance upon the said decisions, it is contended by the learned Senior Counsel that the stipulations in Section 195(1)(b) would come into play only in cases where the documents were manipulated after it was produced before the court. In this case it is pointed out that, the false document was created by the accused persons in Kerala, and after creating the said document, the same was produced before the High Court of Madras. Therefore, in the light of the principles laid down in the above cited decisions, no complaint as contemplated under Section 195(1)(b) ``` 9 ``` Crl.RP No.261/2014 ``` ``` was required in this case. With regard to the sanction under section 197, the learned Senior Counsel defends the observations made by the learned Magistrate in the order impugned in ``` ``` this case. ``` ``` 7.I have gone through the materials ``` ``` placed on record and the contentions raised from either side. ``` ``` 8.Section 195 of the Cr.PC deals with a ``` ``` separate procedure in the matter of initiation of prosecution in respect of certain offences. ``` ``` Section 195(1) Cr.PC reads as follows: ``` ``` “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.- (1) No Court shall take cognizance- ``` ``` (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or ``` ``` (ii) of any abetment of, 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 ``` 10 ``` Crl.RP No.261/2014 ``` ``` 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 (45 of 1860), namely, sections 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 section 463, or punishable under section 471, section 475 or section 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 authorize in writing in this behalf, or of some other Court to which that Court is subordinate.” ``` ``` The Hon’ble Supreme Court specifically ``` ``` considered the impact of the said provision in ``` ``` various decisions and the legal position in this regard is well settled. As pointed out by the learned Senior Counsel for the 1[st] ``` ``` respondent, inSachid Nand Singh’scase (supra), it was categorically held by a three judges bench of the Hon’ble Supreme Court that the bar contained under Section 195(1)(b)(ii) ``` 11 ``` Crl.RP No.261/2014 ``` ``` of the Cr.PC does not apply to a case where forgery of the document was committed, before the document was produced in a court of law. InIqbal Singh Marwah’scase (supra) five judges bench of the Hon’ble Supreme Court confirmed the view taken in Sachid Nand Singh’ case (supra). Thus, as far as the applicability of Section 195(1)(b)(ii) is concerned, the position is well settled, and it is to the effect that if the document is forged before it was produced before the court, then it would not come under section 195(1)(b)(ii) and therefore no complaint as contemplated therein is necessary. The prosecution could be launched in the ordinary course, as contemplated under the general provisions of Cr.PC. ``` 12 ``` Crl.RP No.261/2014 ``` ``` 9.On the other hand, the learned counsel for the petitioners strongly contends that the aforesaid decisions do not apply to the facts and circumstances of the case. The learned counsel specifically relies on the decision rendered by this Court in K.A Kuttiah’scase (supra). I have carefully gone through the ``` ``` observations made by this Court in the said decision. It is discernible from the said decision that the subject matter of the said case was the offences coming within the scope of Section 195(1)(b)(i) and not the offences coming within Section 195(1)(b)(ii). The offences coming under Section 195(1)(b)(i) are sections 193 to 196(both inclusive), 199, 200, ``` ``` 205 to 211 (both inclusive) and 288 of IPC and ``` ``` that too when those offences are committed in, or in relation to, any proceeding in any court. On the contrary, the offences covered ``` 13 ``` Crl.RP No.261/2014 by section 195(1)(b)(ii) are offences described in section 463 or punishable under section 471, section 475 or section 476 of IPC when such offences are alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court. What is contemplated in the said provision is that in respect of offences mentioned above, the prosecution can be launched only based on a complaint in writing of that court or by such officer of the court as that court may authorize in writing in this behalf or some other court which is ``` ``` subordinate to it. In Kuttiah’s case (supra), the learned judge specifically distinguished on facts the principles laid down by the Hon’ble Supreme Court inSachid Nand Singh’ case (supra) andIqbal Singh Marwah’scase ``` 14 ``` Crl.RP No.261/2014 ``` ``` (supra). In paragraph 9 of the said judgment, it was observed as follows: ``` ``` “9. ………….. So much so, when an offence is seen, shown or alleged, to have been committed, which offence falls under Chapter XI IPC, there cannot be a private complaint and such a complaint can be only by the Court as provided in Section 340 Cr.PC, specifically in relation to offences enumerated in clause (b)(i) of Section 195(1).” ``` ``` This Court made the aforesaid observation by taking into account the fact that Section ``` ``` 195(1) Cr.PC deals with three distinct categories of offences viz. Clauses (a),(b)(i) and (b)(ii) respectively relate to, (1) ``` ``` contempt of the lawful authority of public ``` ``` servants, (2) offences against public justice, ``` ``` and (3) offences relating to documents given ``` ``` in evidence. It is specifically taken note of by this Court in the said decision that, as far as offences referred to in 195(1)(b)(i) of Cr.PC are concerned, the same comes under Chapter XI of IPC, which deals withfalse ``` 15 ``` Crl.RP No.261/2014 ``` ``` evidence and offences against Public Justice. ``` ``` The observations made by this Court based on ``` ``` suchclassifications,were clearly made in ``` ``` paragraph 10 thereof, which reads as follows: ``` ``` “10. It is in this context that the decisions of the Apex Court in Iqbal Singh Marwah's case and Sachida Nand Singh's case assume importance. In the said decisions, the Apex court has authoritatively laid down that when the allegation is as to commission of offences described in Section 463 or punishable under Section 471, Section 475 or Section 476 IPC, going by the policy of law contained in clauses (a) and (b) (i) of Section 195(1), the inhibition under Section 195 (1) (b) (ii) would apply only when such offences are committed in respect of a document produced or given in evidence in a proceeding in any Court, thereby meaning, that such offence is alleged to have been committed after production of the document or after it has been given in evidence in a court. This is, pithily, what is stated in Iqbal Singh Marwah's case and Sachida Nand Singh's case. The said decisions are not intended to cover those matters in relation to which offences enumerated under clause (b) (i) of Section 195 (1) are seen, shown or alleged, to have been committed, namely, those punishable under Sections 193 to 196 (both inclusive), Sections 199, 200, 205 to 211 (both inclusive) and Section 228 of IPC. This is all the more so because the embargo created by Section 195(1) (b) (i) is adjectived by the statute itself, specifically stating that the embargo works when the offence is alleged to have been committed in, or in relation to, a proceeding in any court. The provision in the last limb of clause (b) (ii) of Section 195(1) is to the effect that the embargo created thereby would apply only when the offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court. This provision has been interpreted by the apex Court to mean that such embargo will apply only when the offence has been committed in relation to a document ``` 16 ``` Crl.RP No.261/2014 ``` ``` after it has been produced or given in evidence. In contradistinction, the last limb of clause (b)(i) of Section 195(1) creates an embargo as regards offences enumerated therein and alleged to have been committed in, or in relation to, any proceedings in any court. Going by the offences enumerated in clause (b) (i) of Section 195(1), the ingredients of which have been analysed and referred to earlier in this judgment, though a part of the incriminating acts constituting such offences would be committed even before the concerned material/materials is/are produced in Court, the completion of the commission of such offences is only before the Court and only in, or in relation to, any proceedings in any Court. So much so, though the offences enumerated in clause (b) (ii) of Section 195(1) would be completed even before the production of the documents in Court (as held by the Apex Court in Iqbal Singh Marwah's case and in Sachida Nand Singh's case), the completion of offences enumerated in clause (b) (i) of Section 195(1) is only before the Court and therefore, it is for that Court, and for only that Court, to initiate proceedings, if it deems necessary under Section 340 Cr.P.C.” ``` ``` 10.Thus, on carefully scrutinizing the observations made by this Court in the said decision, it can be seen that all the said observations were made on the ground that the offences dealt with in the said decision of the Apex court were covered as per Section 195(b)(ii) of Cr.PC. It was specifically observed that, inSachid Nand Singh’case (supra] and Iqbal Singh Marwah’s case (supra), ``` 17 ``` Crl.RP No.261/2014 ``` ``` what was dealt with by the Hon’ble Supreme Court was the offences coming under section 195(1)(b)(ii) of the Cr.PC and not section 195(1)(b)(i). Therefore, it was held that, as far as the offences under section 195(1)(b)(i) are concerned, if the same were committed in or in relation to any proceeding in court, the prosecution can be initiated only based on a complaint in the manner as contemplated therein is submitted under section 195(1) ``` ``` (b)and not in any other manner. ``` ``` 11.When we examine the facts of this case, it can be seen that, as per the impugned order, the learned Magistrate had decided to frame charge for the offences punishable under Sections 120(b),198, 403, 471, r/w. 34 of IPC. ``` 18 ``` Crl.RP No.261/2014 ``` ``` Among the said offences, section 471 is an offence coming within the scope of section 195(1)(b)(ii) and not under section 195(1)(b) ``` ``` (i). The other offence which would come under ``` ``` Section 195(1) is under Section 120B, and it comes within the coverage of the said ``` ``` proceedings by virtue of the stipulation contained in section 195(1)(b)(iii). However, ``` ``` in this case, section 120B of IPC, which deals ``` ``` with criminal conspiracy, is incorporated on ``` ``` the allegation of conspiring to commit an ``` ``` offence included under section 195(1)(b)(ii), ``` ``` and hence it would also come within the scope of section 195(1)(b)(ii) of Cr.PC alone. The ``` ``` other offences for which the learned ``` ``` Magistrate took cognizance are under sections ``` ``` 198,403 r/w. Section 34 of IPC and none of ``` ``` those offences are coming within the scope of ``` ``` section 195(1) of Cr.PC. Therefore, the ``` 19 ``` Crl.RP No.261/2014 ``` ``` principles laid down by this Court in Kuttiah’s case (supra) cannot be relied on by the petitioners as far as the order impugned in this case is concerned, since none of the offences are coming with section 195(1)(b) (i), but some of the offences are coming under ``` ``` section 195(1)(b)(ii). Hence, the offences for which cognizance is taken are governed by the principles laid down by the Hon’ble Supreme Court inSachid Nand Singh’case (supra] and Iqbal Singh Marwah’s case (supra).Thus, those principles can be applied to the facts of this case, since it is evident that, the solvency certificate is alleged to have been forged at Tirur by the accused persons and later the same was produced before the High Court of Madras. Therefore, the forgery of the said document had taken place before it was produced before the court and hence, the ``` 20 ``` Crl.RP No.261/2014 ``` ``` requirement of filing a complaint by the court as contemplated under section 195(1)(b) does ``` ``` not apply to the facts of this case. In such ``` ``` circumstances, the contention raised by the petitioners in this regard is only to be dismissed. ``` ``` 12. The next contention is regarding the ``` ``` sanction under Section 197 Cr.PC. Admittedly, ``` ``` the petitioners are not government servants for whom the sanction is required before taking cognizance. Moreover, accused persons for whom sanction was required to be obtained are no more and the proceedings against them stand abated. In such circumstances, the challenge raised by the petitioners against the finding entered by the learned Magistrate with regard to the aforesaid contention is not legally sustainable. ``` 21 ``` Crl.RP No.261/2014 ``` ``` In such circumstances, after considering ``` ``` all the relevant aspects, I do not find any ``` **==> picture [448 x 14] intentionally omitted <==** ``` accordingly, the same is dismissed. ``` **==> picture [39 x 13] intentionally omitted <==** ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk