THAMPIRAJ AND OTHERS v. THOMAS PAULOSE AND STATE OF KERALA (and ADDITIONAL RESPONDENTS R7 TO R11)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936** **Crl.MC.No. 529 of 2008 ( )** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN CC 1158/2007 of JUDICIAL FIRST CLASS MAGISTRATECOURT-III,NEYYATTINKARA** **PETITIONER(S)/ACCUSED:** **-----------------------** **1. THAMPIRAJ, ADVOCATE, ELAVUVILA VEEDU KILLIYOOR VILLAGE, VILAVANKODU TALUK KANYAKUMARI DISTRICT, TAMIL NADU NOW RESIDING AT NO.15, JAL NAGAR, SOUTH KUMARAPURAM MEDICAL COLLEGE (P.O), THIRUVANANTHAPURAM.** **2. MARY BELSITTA, W/O.THAMPIRAJ RESIDING AT NO.15, JAL NAGAR, SOUTH KUMARAPURAM MEDICAL COLLEGE (P.O), THIRUVANANTHAPURAM.** **3. FLETCHER, ADVOCATE & NOTARY THAKKALA, TAMIL NADU.** **4. ROBINSON, S/O.THANKAPPAN S.R.BHAVAN, PIDARAM, PERUKKAVI (P.O) VILAVOORKKAL VILLAGE, NEYYATTINKARA TALUK THIRUVANANTHAPURAM DISTRICT.** **5. CLAMANT RAJ, S/O.RATNAMANI NJANASELVAN BHAVAN, ELAVUVILA (P.O), KILLIYOOR VILLAGE TAMIL NADU.** **6. SELVARAJ, S/O.THANKAPPAN NADAR SUDHEESH BHAVAN, MYLAKKUNNU, ANCHUMARAMKALA VELLARADA (P.O), NEYYATTINKARA TALUK THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH** **RESPONDENT(S)/COMPLAINANT & STATE: -----------------------------------** **1. THOMAS PAULOSE, S/O.THOMAS THEKKETHIL VEEDU, THEKKUPARA (P.O), AMBOORI VILLAGE NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT.** **2. STATE OF KERALA REP. BY PUBLIC PROSECUTOR, SRI.JITHESH.R HIGH COURT OF KERALA** **ADDITIONAL R7 TO R11 IMPLEADED** - **R7. MARIYAMMA PAULOSE, W/O.LATE THOMAS PAULOSE, THEKKETHIL VEEDU, THEKKUPARA (PO), AMBOORI VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM- 695505.** **R8. SOSAMMA SAMUEL, W/O.SAMUEL, THEKKETHIL VEEDU, THEKKUPARA (PO), AMBOORI VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM- 695505.** - **R9. P.THOMAS, S/O.LATE THOMAS PAULOSE, THEKKETHIL VEEDU, THEKKUPARA (PO), AMBOORI VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM- 695505.** - **R10. P.PHILIPOSE, S/O.LATE THOMAS PAULOSE, THEKKETHIL VEEDU, THEKKUPARA (PO), AMBOORI VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM- 695505.** - **R11. P.MATHEW, S/O.LATE THOMAS PAULOSE, THEKKETHIL VEEDU, THEKKUPARA (PO), AMBOORI VILLAGE, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM- 695505.** **ARE IMPLEADED AS ADDITIONAL R7 TO R11 AS PER ORDER DATED 01.04.2014 IN CRL.M.A.4397/13 IN CRL.MC 529/08.** **R,R1,R3,R7 BY ADV. SRI.POOVAPPALLY M.RAMACHANDRAN NAIR R,R1 BY ADV. SRI.HARIKUMAR.S.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 0104-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **P.D.RAJAN, J.** ## **----------------------------------Crl.M.C. NO.529 of 2008** **----------------------------------------Dated this the 1[st] day of April, 2014** ## **ORDER** This is a petition filed u/s.482 Cr.P.C. to quash Annexure 1 complaint pending before Judicial First Class Magistrate Court-III, Neyyattinkara for the offence punishable under Sections 34, 120B, 181, 182, 193, 196, 420, 465, 467, 470 and 471 IPC. 2. The above case was filed by the 1[st] respondent before Judicial First Class Magistrate Court-III, Neyyattinkara. Earlier Vellarada Police had registered a Crime No.384/2006 of Vellarada Police Station and it was referred by Sub Inspector of Police, Vellarada after investigation. Hence, Annexure I complaint was filed after referring the case by Vellarada Police. Petitioners contended that offence u/s.181, 183 and 196 filed by the 1[st] **Crl.M.C. NO.529 of 2008** 2 respondent is in violation of mandatory provision u/s.195 Cr.P.C. If trial is proceeded, it amounts to abuse of process of the court hence the trial of the case is to be quashed invoking inherent jurisdiction. 3. The 1[st] respondent's case in the trial court was that an extent of 2.75 acres of land in Survey No.434 of Amburi Village in Neyyattinkara Taluk is in his possession and enjoyment for more than 30 years. One Antony Jalis was the owner of the property having Patta in his name and he neither entered in the property nor he possessed or enjoyed it. Antony Jalis died in the year 1978, thereafter, the 1[st] respondent applied for effecting mutation of property. At that time he came to know that petitioners, with an intention of acquiring the property, forged documents and cheated the 1[st] respondent and submitted a fabricated document before the Addl. Tahsildar, Neyyattinkara. In the circumstances, he filed a petition before the Sub Inspector of Police, Vellarada and **Crl.M.C. NO.529 of 2008** 3 Crime No.384/2006 was registered. Subsequently, Annexure 4 refer report was filed before Judicial First Class Magistrate Court-III, Neyyattinkara. Aggrieved by that he filed Annexure 1 complaint before the Judicial First Class Magistrate CourtIII, Neyyattinkara. 4. According to Section 482 Cr.P.C, inherent jurisdiction can be invoked only for the ground mentioned thereunder to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Apex Court in _**Monica Kumar V State of UP (2008) 8 SCC 781**_ held that the inherent jurisdiction can be exercised sparingly and carefully and such exercise is justified by the test specifically mentioned in the section itself. 5. _**In R.P. Kapur v. State of Punjab**_ , [1960 SC 866] the Supreme Court considered the circumstances in which the High Court can, by invoking its inherent powers,quash 4 **Crl.M.C. NO.529 of 2008** ## the criminal proceedings in a subordinate criminal court. The ## Supreme Court observed thus: “It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused **Crl.M.C. NO.529 of 2008** 5 person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute and offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 482 the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 482 in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point. 6. The learned counsel appearing for the petitioners contended that there is bar u/s.195 Cr.P.C in taking cognizance of offence u/ss.172 to 188 and u/ss.193 to 196. There is a mandatory direction u/s.195 (1) (a) and 1(b)(i)(ii) for taking cognizance of offence by a complaint. The prosecution for contempt of lawful authority of public **Crl.M.C. NO.529 of 2008** 6 servants, for offences against public justice and for offences relating to documents given in evidence are mentioned under Section 195 Cr.P.C. When an offence u/ss.172 to 188 is committed or any abetment of, attempt to commit, such offence, or of any criminal conspiracy to commit such offence is made, cognizance of such offence shall be taken by a court, on a complaint in writing of such public servant concerned or of some other public servant to whom he is administratively subordinate. When offences mentioned u/ss.193 to 196 (both inclusive mentioned in chapter XI) which are against false evidence and against public justice, as alleged to have been committed 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 is necessary. The condition mentioned under Section 195(i) is to avoid a private prosecution. Therefore, in the absence of a complaint in **Crl.M.C. NO.529 of 2008** 7 writing of the public servant concerned or some other public servant to whom he is administratively subordinate, is mandatory. In the absence of such a complaint it is difficult to proceed under Sections 172 to 188 of the Code by a private complaint. 7. Offence under Section 193 IPC is the punishment for giving false evidence in any stage of the judicial proceedings and Section 196 IPC is for using evidence which is known to be false. For offence under Sections 193 to 196 which have been in relation to any proceedings in any court petitioner did not give any false evidence before any Civil, Criminal or Revenue Court. Sections 193 to 196 attract only when evidence is given in a judicial Proceedings. If any false evidence is given before any judicial authority in a judicial proceedings 1[st] respondent can file a petition before that court for proceeding u/s. 195(b)(i)(ii), and the court can take cognizance by a complaint in writing of that **Crl.M.C. NO.529 of 2008** 8 court or by such officer of the court as that court may authorise in this behalf or some other court to which that court is subordinate. Here such a situation is not warranted and the proceeding on the basis of u/ss. 193 to 196 is a mere abuse of process and it is to be quashed. 8. Section 465 IPC deals with about punishment for forgery. Offences under Sections 465, 466, 467, 470 and 471 are alleged to have been committed in respect of a document produced or given in evidence in any court, in that situation cognizance of such offence shall be taken by a complaint in writing of that court or by such officer of the court as that court may authorise in this behalf or some other court that is subordinate. The allegation in the complaint is that the document was produced not in a court and the offence was not committed not in a proceedings before a court. Therefore, cognizance of such offence by a complaint in writing of that court or by such officer of the court is not **Crl.M.C. NO.529 of 2008** 9 necessary and a private prosecution is possible in such a situation. ## 9. The Apex Court in _**State of Karnataka v. Hemareddy and Another (AIR 1981 Supreme court 1417)**_ , it was held as follows: In cases where in the course of the same transaction an offence for which no complaint by a Court is necessary under Section 195(1) (b) of the Criminal Procedure Code and an offence for which a complaint of a Court is necessary under that subsection, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in S.195(1)(b) Cr.P.C should be upheld. But where an accused had abetted commission of forgery but the forged document was not produced in evidence in a suit against him, no cognizance could be taken against him under Section 193, Penal Code and therefore, S.195(1)(b) would not be attracted. The Legislature could not have intended to extend the prohibition contained in s.195(1) Cr.P.C to the offences mentioned therein when committed by a party to a proceeding in that Court prior to his becoming such party. An accused 'A' executed and got registered a sale deed in respect of certain mortgaged property by 10 **Crl.M.C. NO.529 of 2008** impersonating the real owner and thus committed offence under S. 467 Penal Code. Another accused 'B' the mortgagee in whose favour the sale-deed was registered abetted the offence. The mortgagor filed a suit for redemption and subsequently filed a criminal complaint against both the accused. The fabricated sale-deed was not put up in evidence at any stage of the suit for redemption filed by the mortgagorcomplainant. Held,(i) the accused 'A' was liable to be convicted under Section 467, Penal Code. (ii) The accused 'B' was liable to be convicted only under S.467 read with S.114, Penal Code on the basis of the complaint by a private individual and a complaint by Court for prosecuting accused 'B' was not necessary. The offence of abetment of forgery was complete when the forged sale deed was fabricated and registered. But no offence under Section 193, Penal Code falling within the scope of S.195(1)(b) of Cr.P.C could be stated to have been committed by the accused 'B' as the forged sale deed was not at all put n evidence at any stage in the redemption suit filed by the complainant. ## _**In Philip v. Raphael (1984 KLT 907)**_ , held that: Complaint of court is not necessary when the offence is committed before the commencement of the proceedings in court. Recognising this accepted 11 **Crl.M.C. NO.529 of 2008** position, the Law Commission moved forward in the same direction and took one step ahead to recommend that the safeguard in this provisions should not be confined to parties to the proceedings but should extend to others including witnesses as well. The framers of the Code accepted the recommendation and deleted the words “by a party to any proceeding in any court”, so that the court's right to file complaint was not confined to parties. The deletion of the words was not intended to affect the right in respect of then offences committed prior to the proceedings in court or to achieve any object which was farthest from their minds. The right to file a complaint is contained in S.190 of the Code. However there is a satutory curtailment of this right under S.195 when under certain circumstances the court alone can file a complaint. The content of this restriction has therefore to be confined within reasonable limits keeping in view “the real purpose and object underlying the two sections”. The court is not concerned with any offence which has no close nexus with the proceedings in court. The court can not satisfactorily determine the question of expediency of making a complaint in respect of an offence alleged to be committed prior to the commencement of the proceedings. Thus with or without the words “by a party to any proceeding”, the same object is achieved and the new Code rightly omitted these words 12 **Crl.M.C. NO.529 of 2008** assuring themselves that the principles laid down by the Supreme Court would even then apply. The broad principle laid down by the Supreme Court which form the basis of S.195 remain untouched. Deletion of the words “by a party to any proceeding in any court”, is inconsequential for another reason. S.195 only directs a court to file a complaint. It specifies the offences in respect of which it can take action, but does not refer to any offender. The human agency involved in the offence did not require any statutory differentiation. The underlying principles that private prosecutions are barred when the course of justice is perverted and it is, then, for that court to uphold its dignity and prestige, do not rest for their support on these words “by a party to any proceeding in any court”. 10. Here, the 1[st] respondent preferred a complaint in the Judicial First Class Magistrate under Sections 181, 183, 193 and 196 without complying the direction u/s. 195 of the Code of Criminal Procedure, which is in violation of the mandatory provision and if it is allowed, it is an abuse of process of court. Therefore, I think that this is a fit case to invoke inherent jurisdiction under Section 482 Cr.P.C to **Crl.M.C. NO.529 of 2008** 13 quash the cognizance taken by the learned Magistrate under Sections 181, 183, 193 and 196 against the petitioners and I quash the above cognizance. However, this will not affect the cognizance taken by the Magistrate u/ss. 465,466,467,470 and Section 471 of IPC. Now the defacto complainant is no more and his legal representatives were impleaded, hence they can proceed with the other sections in the complaint. To that limited extent, I interfere in the complaint filed before JFCM-III, Neyyattinkara. Since the matter is pending from 2006 onwards, the Magistrate is directed to expedite the trial and dispose of the matter in accordance with law. **P.D.RAJAN, JUDGE** pm