Research › Search › Judgment

Kerala High Court · body

2009 DIGILAW 177 (KER)

Suresh Babu v. Superintendent of Police

2009-02-20

T.R.RAMACHANDRAN NAIR

body2009
Judgment :- T.R. Ramachandran Nair, J. The question raised in this writ petition is whether pursuant to a preliminary enquiry initiated under Section 340 of the Code of Criminal Procedure, 1973, the court can direct the superior officer of the person involved to take legal action for offence under Section 193 of the Indian Penal Code, instead of proceeding to file a complaint as envisaged under Section 340 Crl.P.C. 2. The petitioner is a Head Constable of Chengannur Police Station. An accused in S.C.No.565/2006 before the Assistant Sessions Court, Chengannur involved in an offence under Section 55(a) of Abkari Act, was absconding after being enlarged on bail. The case was transferred to the register of Long Pending Cases as L.P.C.No.2/2008. Later on, coercive proceedings were initiated against one of the sureties by issuing a distress warrant for the levy of bond amount by attachment and sale of movable property of the surety as contemplated under Section 421 (1)(a) of Cr.P.C. 3. The petitioner was authorized to execute the warrant. He filed a report before the Court stating that there are no movable properties in the house of the surety and hence warrant could not be executed. Doubting the veracity of the report, the learned Assistant Sessions Judge directed the concerned Village Officer to conduct a local inspection and prepare an inventory of the movables found in the house of the surety. 4. The Village Officer in his report gave details of the movable items available in the house. The movables available were valued at Rs.12,000/-. Thereafter, the court initiated enquiry under Section 340 Crl.P.C. Five witnesses were examined and two documents were marked. It is at this stage the proceedings impugned in this writ petition was initiated at the instance of the learned Assistant Sessions Judge. By Ext.P2 addressed to the Superintendent of Police, Alappuzha, the learned Judge, on being satisfied that the report filed by the petitioner is a false one, which amounts to an offence punishable under Section 193 I.P.C., requested to take stringent legal action against him, for filing the said false report (Ext.C1(a) in the judicial proceeding in the said case and for willful dereliction of the discharge in his duties. The Superintendent of Police was directed to report the action taken by him, to the court on or before 310.2008. By Ext.P3 order, the petitioner was suspended from service by the Superintendent of Police. The Superintendent of Police was directed to report the action taken by him, to the court on or before 310.2008. By Ext.P3 order, the petitioner was suspended from service by the Superintendent of Police. The Sub Inspector of Police, Chengannur was also directed to register a case under Section 193 I.P.C. against him and report compliance by return. 5. The petitioner is challenging Extx.P2 and P3 in this writ petition. The Petitioner contends that both the orders, Exts.P2 and P3 are without jurisdiction and Ext.P2 is beyond the powers of the Criminal Court. It is contended that the Court is not having the power to direct the superior authority to take stringent action against an officer or to direct the said authority to register a crime under Section 193 I.P.C. it is stated that such an action is beyond the scheme provided under Section 340 Crl.P.C., since going by the procedure therein, the Court has to make a complaint thereof in writing and send it to a Magistrate of the First Class having jurisdiction. 6. Heard the learned counsel for the petitioner Shri R.T. Pradeep and Shri V.G. Govindan Nair, learned Director General of Prosecution for respondents. 7. For convenience, Section 340 (1) Crl.P.C. is extracted below: “340. 6. Heard the learned counsel for the petitioner Shri R.T. Pradeep and Shri V.G. Govindan Nair, learned Director General of Prosecution for respondents. 7. For convenience, Section 340 (1) Crl.P.C. is extracted below: “340. Procedure in cases mentioned in Section 195.- When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary – (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance for the accused before such Magistrate, or id the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate.” Going by the said provision, the court has to form opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, it can hold a preliminary enquiry, record the finding thereon, make a complaint thereof in writing and send it to a Magistrate of First Class having jurisdiction. Therefore, the question is whether the Court can straight away direct the superior authority in the police department to register a case involving offence under Section 193 I.P.C. 8. The scope and ambit of the relevant provisions under Section 340 Crl.P.C. has been examined by the Apex Court in Pritish v. State of Maharashtra {(2002) 1 SCC 253}. Their Lordships held that the preliminary enquiry if at all done, as contemplated in the sub-section is not for finding whether any particular person is guilty or not. It is only to decide whether it is expedient in the interest of justice to enquire into the offence which appears to have been committed. Their Lordships held that the preliminary enquiry if at all done, as contemplated in the sub-section is not for finding whether any particular person is guilty or not. It is only to decide whether it is expedient in the interest of justice to enquire into the offence which appears to have been committed. If such opinion is formed by conducting the preliminary enquiry, the Court has to make a complaint in writing and send to the First Class Magistrate concerned. After considering the matter in detail, the Apex Court in the above decision held thus: “9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is such, preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not or finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. 10. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. 10. “Inquiry” is defined in Section 2(g) of the Code as “every inquiry, other than a trial, conducted under this Code by a Magistrate or court”. It refers to the pre-trial inquiry, and in the present context in means the inquiry to be conducted by the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are all falling within the purview of “Warrant case” {as defined in Section 2(x)} of the Code the Magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the Magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.” 9. The question whether there is a statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating proceedings, was also considered in that decision. It was declared that such is not the legal formality, as at that stage the court is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. It was further held as follows: “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. 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 (AIR 1954 SC 397) 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 inquires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.” 10. More or less a similar issue was considered by a learned Single Judge of this court in Ramakrishnan v. State of Kerala (1998 (1) KLT 68). Therein, the relevant facts are the following: Stolen gold ornaments were recovered, from the owner of a jewellery shop. He filed a petition under Section 451 of the Crl. P.C. and was found to have produced some forged documents to be used as evidence. The learned Magistrate, after making an observation that the circumstances of the gave room for an investigation into the matter so as to find out whether the petitioner had committed offences punishable under Sections 465 and 411 of IPC., issued a direction to the Divisional Inspector of Police, Crime Branch, CB, CID Thrissur to investigate and report regarding the possible commission of offence under Sections 465 and 411 of IPC by the petitioner under Section 156(3) of Crl.P.C. While examining the legality of the said order, it was held in Para 9 as follows: “S.195(1)(b)(ii) of the Crl.P.C. Contemplates that no Court shall take cognizance of any offence described S.463 or punishable under S.471, or S.476 of the said Code, when such offence is alleged to have committed in respect of a document produced or given in evidence in a proceeding in any court, except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. S.340 of the Crl.P.C. inter alia lays down that when an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-s.(1) of S.195, which appears to have been committed in or in relation to a proceeding in that Court, or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary enquiry, if any, as it thinks necessary record a finding to that effect; make a complaint thereof in writing, send it to a Magistrate of the First Class having jurisdiction, take sufficient security for appearance of the accused before such Magistrate or send the accused in custody to such Magistrate if the alleged offence is non-bailable and bind over any person to appear and give evidence before such Magistrate. Thus, if an offence in term of S.463 is alleged to have been committed in course of a proceeding in court, the proper procedure is to make a preliminary enquiry as contemplated in S.340 Crl.P.C. instead of directing a police officer to investigate into it. In this case, the direction of the Magistrate to investigate an offence under Section 465, therefore, is contrary to law.” 11. Section 340 of Crl.P.C. has to be read together with Section 195 (1)(b)(i) of the Crl.P.C. Under Section 195(1)(b)(i), “no Court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code, 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…. Except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.” Section 340 provides for the procedure in cases mentioned in Section 195. Therefore, Section 193 I.P.C. being an offence coming under the purview of Section 195(1)(b)(i), only by a complaint in writing of that Court, or of some other Court to which that Court is subordinate, cognizance can be taken. Section 193 I.p.C. provides punishment for false evidence, which is the offence alleged herein. Therefore, Section 193 I.P.C. being an offence coming under the purview of Section 195(1)(b)(i), only by a complaint in writing of that Court, or of some other Court to which that Court is subordinate, cognizance can be taken. Section 193 I.p.C. provides punishment for false evidence, which is the offence alleged herein. Crime No.50/2008 under Section 193 I.P.C. has been registered by the Sub Inspector of Police, chengannur as per the order of the Superintendent of Police, Alappuzha as evident from the counter affidavit filed on behalf of the respondents. It is admitted in para 8 of the counter affidavit that, the order of suspension and the registering of the crime are as per the report of the Court. The provisions contained in Section 195 Crl.P.C. are mandatory in character. There is a bar created by that provision on the filing of a complaint by all and sundry, as held by this court in Kurien v. State of Kerala (1987 (1) KLT 619). Section 340 Crl.P.C. removes the bar by conferring jurisdiction on the court to file complaint. It prescribes the procedure to be followed in the case of complaints by courts in respect of offences mentioned Clause (b) of Section 195(1). An identical situation, as arising in this case, was considered by a Division Bench of this court in Thankamani v. Inspector General of Police (2001 (3) KLT 550). There, while disposing of an application for anticipatory bail, the Sessions Court felt doubt about the genuineness of the affidavit filed in support of the application. The Sessions Court directed the Chief Judicial Magistrate and Inspector General of Police to conduct investigation/enquiry and to take appropriate action. The question whether such a direction could have been issued in the light of the legal position emanating from the respective provisions, was considered in detail by this court. It was held that “it is settled law that provisions of Section 195 is imperative and mandatory in character. The filing of a complaint in respect of the offence detailed for cognizance of offence mentioned is mandatory. Power of the police to investigate offences in respect of a document produced in a Court can start only after lifting the ban under S.195. The filing of a complaint in respect of the offence detailed for cognizance of offence mentioned is mandatory. Power of the police to investigate offences in respect of a document produced in a Court can start only after lifting the ban under S.195. That can be done only when the procedure under S.340 is complied with.” It was further held that “however, if the Court of Sessions, in preliminary enquiry, finds, prima facie, that an offence under Section 195 (1)(b) is committed, it has to make a complaint in writing and send it to a Magistrate of the First Class having jurisdiction. It cannot direct enquiry/investigation by Chief Judicial Magistrate or Police and in particular by a specific police officer like Inspector General of Police, as done in this case. If prima facie case is made out in a preliminary enquiry, Court of Session could have made a complaint to the Magistrate of the first class. Court need not express any final opinion as to the guilt of the accused but there should be prima facie material before the Court. But the direction for investigation and for taking appropriate action by the Chief Judicial Magistrate or Inspector General of Police is without jurisdiction.” The above dictum squarely applies to the facts of this case. 12. Therefore, the legal position is clear in that, while exercising t6he power under Section 340 Crl.P.C., the court cannot direct the Police to register a case against the person involved rather it has to file a complaint by itself and send it over to the Magistrate of First Class having jurisdiction. At that stage of forming an opinion under Section 340 Crl.P.C., the court is not entering any finding as regards the guilt of the person involved. It is conducting only a preliminary enquiry which itself is not required. It can conduct preliminary enquiry or not. There is no question of the person involved being treated as guilty. 13. During the hearing of the matter, a report was called for from the Asst. Sessions Court, Chengannur as to the final outcome of the enquiry held under Section340 Crl.P.C. Accordingly, a report dated 7.2.2009 has been placed on record. It can conduct preliminary enquiry or not. There is no question of the person involved being treated as guilty. 13. During the hearing of the matter, a report was called for from the Asst. Sessions Court, Chengannur as to the final outcome of the enquiry held under Section340 Crl.P.C. Accordingly, a report dated 7.2.2009 has been placed on record. Therein, after noting that the petitioner was placed under suspension and that a case has been registered against him for an offence punishable under Section 173 I.P.C. and that it is under investigation, the learned Judge reports that with a view to avoid multiplicity of the proceedings against the petitioner herein, further action on the preliminary enquiry under Section 340 Crl.P.C. was dropped and the matter was closed as per order dated 31.2009. Thus, now what remains is the case registered against him under Section 193 I.P.C. as directed by the court. At the intermediary stage of a proceedings initiated under Section 340 Crl.P.C., further action itself is dropped, going by the report. 14. Therefore, the legality of the order, Ext.P2 has to be considered in the light of the express provision under Section 340 Crl.P.C. going by the scheme of the provision and the principles stated by the Apex Court and this court, it is clear that the direction issued as Ext.P2 to the Superintendent of Police to take stringent action for the offence under Section 193 I.P.C. is beyond the powers conferred under Section 340 Crl.P.C. The court was not empowered to direct the Superintendent of Police to take legal action against the petitioner without resorting to the mandatory procedure contemplated under Section 340. Therefore, Ext.P2 is beyond the scope of the jurisdiction under Section 340 Crl.P.C. It cannot be sustained at all. 15. The petitioner is suspended from service only because of the initiation of a criminal proceedings against him. As the parent order, Ext.P2 itself is without jurisdiction, Ext.P3 cannot be sustained. 16. In the result, the writ petition is allowed. Exts.P2 and P3 are quashed. The petitioner will be reinstated in service and consequential orders will be passed within three weeks from the date of receipt of a copy of this judgment. Consequently, in the light of the above findings, the case registered against the petitioner as Crime No.58/2008 under Section 193 I.P.C. will stand quashed. The writ petition is allowed as above. No costs.