V.D. Sebastian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** **Crl.MC.No. 2912 of 2012 () ---------------------------** **CRIME NO. 105/2012 OF CHOTTANIKKARA POLICE STATION , ERNAKULAM.** **PETITIONER/ACCUSED :** **------------------** **V.D.SEBASTIAN, AGED 51 YEARS, S/O.V.T SEBASTIAN, MANAGING DIRECTOR, CANAN TECHNOLOGIES (P) LIMITED, RESIDING AT HOUSE NO 37/2075-M, KADAVANTHRA, KOCHI - 682 020. FALSELY DESCRIBED AS THE MANAGING DIRECTOR OF BETRONS TECHNOLOGIES PVT LTD. BY ADVS.SRI.C.S.MANU SMT.V.SARITHA SRI.S.K.PREMRAJ.** ## **RESPONDENT/COMPLAINANT :** **----------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHOTTANIKKARA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** *** ADDL.R2 CHANDRASEKHARAN, AGED 37 YEARS, S/O SANKUNNI MENON, AYIKKARA KUNNATHU HOUSE, MURIYAMANGALAM KARA, THIRUVANIYOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM – 682 323.** *** IMPLEADED AS ADDITIONAL SECOND RESPONDENT AS PER ORDER DATED 18-09-2012 IN CRL.M.A NO.6109/2012 IN CRL.M.C NO.2912/2012.** **R1 BY PUBLIC PROSECUTOR R2 BY ADV. SRI.GEO PAUL SRI.SANU MATHEW SRI.C.R.PRAMOD SRI.S.ASHOK KUMAR. SRI.NOEL JOSEPH SMT.P.M.HRIDYA SRI.K.V.REJANISH.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2912 of 2012 ()** **APPENDIX** **PETITIONER(S) EXHIBITS :** **ANNEXURE 1 TRUE COPY OF THE FIR IN CRIME NO 105 OF 2012 OF THE CHOTTANIKKARA POLICE STATION** **RESPONDENTS' EXHIBITS : NIL. //TRUE COPY// P.A TO JUDGE** **==> picture [19 x 8] intentionally omitted <==** **----- Start of picture text -----**<br> amk<br>**----- End of picture text -----**<br> ## **A.HARIPRASAD, J.** **-----------------------------------------------Crl.M.C No.2912 of 2012 -----------------------------------------------Dated this the 2[nd] day of July, 2014.** ## **O R D E R** Petition filed under Section 482 Cr.P.C. Petitioner is the second accused in Crime No.105/2012 of Chottanikkara Police Station registered for offences punishable under Sections 109, 120, 120B, 423, 465, 467, 468 and 471 I.P.C. The complainant/second respondent approached the learned Magistrate with a private complaint alleging that the accused persons including the petitioner have committed the aforesaid offences. It appears from the complaint that there was a licence arrangement between the complainant and the accused in respect of pineapple cultivation. The land belonging to the accused was permitted to be used by the complainant for pineapple cultivation for a certain period of time. The complainant's grievance is that before he could reap the benefits of cultivation, the accused persons falsely created documents to evict him from the licenced premises. It is also mentioned in the ## **Crl.M.C No.2912 of 2012 2** complaint that there are two civil suits pending before competent courts. Totality of allegations in the complaint would show that the accused persons created false documents by committing forgery in order to produce the same before the trial court to substantiate their claims. 2. Heard the learned counsel for the petitioner, learned counsel for the respondents and the learned Public Prosecutor. 3. Learned counsel for the petitioner submitted that the complaint itself is barred by the provisions of Section 195 Cr.P.C. It is also submitted that as the provisions in Section 195 (1)(b)(i) Cr.P.C is attracted, the court trying the cases, wherein the impugned documents are produced can alone file a complaint and the complainant has no _locus standi_ to file the complaint. 4. Per contra, learned counsel for the complainant would contend that this is a case wherein forgery has committed ## **Crl.M.C No.2912 of 2012 3** outside the court and the product of the forgery namely, forged documents, were produced before the court to establish a claim. According to him therefore, no bar under Section 195 Cr.P.C is attracted in this case. 5. Learned counsel for the petitioner relied on the law stated in _**Basir-ul Huq and others v. State of West Bengal**_ ( _**A.I.R 1953 S.C 293)**_ . The relevant statement of law reads thus : _“ (14) Though, in our judgment, S.195 does not bar the trial of an accused person for a distinct offence disclosed by the same facts and which is not included within the ambit of that section, it has also to be borne in mind that the provisions of that section cannot be evaded by resorting to devices or camouflages. The test whether there is evasion of the section or not is whether the facts disclose primarily and essentially an offence for which a complaint of the Court or of the public servant is required. In other_ ## **Crl.M.C No.2912 of 2012 4** _words, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, upon the ground that such latter offence is a minor offence of the same character, or by describing the offence as being one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in S.195 Cr.P.C. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of S.195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it.”_ 6. Subsequently, in _**Devaki Amma v. State of Kerala**_ ( _**1981 K.L.T 475)**_ a learned Single Judge of this Court has enunciated the same principle. ## **Crl.M.C No.2912 of 2012 5** 7. Another decision relied on by the learned counsel for the petitioner in _**Kuttiah v. Federal Bank Ltd**_ .( _**2006(3) K.L.T 418)** ,_ the principle in the Constitution Bench decision in _**Iqbal Singh Marwah and Another v. Meenakshi Marwah and Another**_ ( _**A.I.R 2005 S.C 2119)**_ and that in _**Sachida Nand Singh and Another v. State of Bihar and Another ((1998)2 S.C.C 493)**_ were considered by this court and held as follows : _“ 11. 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 S.463 or punishable under S.471, S.475 or S.476 I.P.C, going by the policy of law contained in clauses(a) and (b)(i) of S.195(1), the inhibition under S.195(1)(b)(ii) would when such are apply only offences_ ## **Crl.M.C No.2912 of 2012 6** _committed in respect of a document or in evidence in a produced given 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 S.195(1) are seen, shown or alleged, to have been committed, namely, those punishable under Sections 193 to 196 (both inclusive), S.199, 200, 205 to 211 ( both inclusive) and S.228 of I.P.C. This is all the more so because the embargo created by S.195(1)(b)(i) is adjectived by the statute itself, speifically 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_ ## **Crl.M.C No.2912 of 2012 7** _the last limb of clause(b)(ii) of S.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.”_ 8. The principles enunciated in the above decisions will clearly establish that the label or the garb of the offences are not the criteria. The entire allegations in the complaint, if taken together, will show that the grievance of the complainant is that certain documents were forged with an object to produce the same before a civil court to establish a legal claim against his interest. Therefore indubitably, it can be held that the alleged attempt of the accused persons herein was to pollute the stream of administration of justice. Therefore, Sections 193, 196 and 209 I.P.C will certainly be attracted. Viewing from that angle, it is evident that the embargo in Section 195(1)(b)(i) Cr.P.C is attracted in this case. Hence, I find that the continuation of the ## **Crl.M.C No.2912 of 2012 8** proceeding is not legally proper. The complainant is legally entitled to take appropriate steps to redress his grievance. However, this prosecution is an abuse of the process of court. In the result, the Crl.M.C is allowed. Annexure 1 first information report in Crime No.105/2012 of Chottanikkara Police Station and all proceedings thereunder are hereby quashed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** amk