Arulraj vs Judicial Magistrate, Valliyoor

The petitioner is seeking for quashing C.C. No. 365 of 1989, on the file of the Judicial Magistrate No. IV, Tirunelveli.

Facts in brief are : A complaint was filed under S. 340 of the Code of Criminal Procedure, hereinafter referred to (for short) as ''the Code'', for

an offence u/s 192 of the Indian Penal Code against the petitioner herein by the respondent.

Petitioner is working as District Munsif in the subordinate Judicial Service of the State of Tamil Nadu. As advocate the petitioner herein

appeared in a maintenance case filed by one Nesammal against her husband. He gave a complaint against one Mohan and his counsel Thiru. Thilak

Manohar alleging theft of a letter from his case bundle at Valliyur Police Station. The case was registered in Crime No. 317 of 1987 for an offence

u/s 379, I.P.C. A charge sheet was filed in the Court of the Judicial Magistrate, Nanguneri. The advocate Thilak Manohar was discharged. In

respect of the other accused the case proceeded with the trial and the case was transferred to the Court of the Judicial Magistrate No. 1.

Ambasamudram. The elder brother of Thilak Manohar succeeded as the Judicial Magistrate. Valliyur, in place of Mr. Xavier, on his transfer. The

case of the petitioner is that at the instance of the advocate Thilak Manohar, to wreak vengeance a complaint was registered under S. 340 of the

Code by the brother of Thilak Manohar, who was at the relevant point of time the Judicial Magistrate at Valliyur. It is alleged that the Magistrate,

who enquired into the maintenance case in M.C. No. 78 of 1988, nowhere in his order held that the action u/s 340 of the Code for an offence u/s

193, I.P.C. against the petitioner or the witnesses is expedient in the interests of justice. It is further alleged that no notice was issued to show

cause why the complaint should not be laid ? It is also the contention that the order in M.C. No. 78 of 1985 does not contain any material against

the petitioner herein for preferring a complaint under S. 340 of the Code for an offence under S. 193, I.P.C. and not even a suggestion to P.W. 1

in M.C. No. 78 of 1985 that the petitioner connived with the party in the alleged fabrication of the letter Ex. P. 18 and P. 19 and also contended

that the reception of Ex. P. 18 and P. 19 was objected on the ground that they are the xerox copies, inadmissible in evidence. The record of the

case was called for. Learned Public Prosecutor fairly submitted that there is no enquiry of an order u/s 340 of the Code stating that it is expedient

in the interests of justice to prosecute the petitioner.

Section 193, I.P.C. talks of punishment for false evidence. Whoever intentionally gives false evidence in any stage of a judicial proceeding, or

fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, is punishable, as contemplated under the said

provision. Section 340 of the Code contemplates that when, upon 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 enquiry 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 proceedings 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 - (i) record a finding

to that effect; (ii) make a complaint thereof in writing; (iii) sent it to Magistrate of the first class having jurisdiction ......"" The power conferred on a

Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect

of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate

within the meaning of sub-section (4) of Section 195. Section 341 empowers an appeal to the Court to which such former Court is subordinate

within the meaning of sub-section (4) of Section 195, and the superior Court may thereupon, after notice to the parties concerned direct the

withdrawal of the complaint as the case may be, making of the complaint which such former court might have made u/s 340, and if it makes such a

complaint, the provision of that section may apply accordingly.

Section 340 of the Code deals with the procedure to be adopted in such cases. That section is intended to be complementary to section 195,

which creates a bar on complaint by all and sundry. Mere satisfaction that an offence appears to have been committed in or in relation to a

proceeding in Court is not sufficient. An enquiry should be conducted and the Court should not launch prosecution unless it also considers that it is

expedient in the interests of justice to launch prosecution. Prosecution is not undertaken to satisfy private grudge of a litigant. Though wide

discretion is given to the Court, it should be exercised with care and caution inasmuch as the object of sections 195 and 340 is to provide a

safeguard against frivolous or vexatious prosecution. The section is applicable only when the Court considers that an enquiry should be made into

such an offence. The complaint has to be filed only after recording a finding to that effect. The Judge who decided M.C. No. 78 of 1985 did not

record a positive finding that lodging of a complaint was expedient in the interests of justice and there was fabrication of false evidence. This

requirement of law is a fundamental importance. An order u/s 340 stands vitiated if no opinion is recorded in the order stating as a matter of fact

that lodging of a complaint was expedient in the interests of justice. The Supreme Court in Baban Singh and Another Vs. Jagdish Singh and

Others, lays down that swearing to a false affidavit is an offence falling under Sections 191 and 192 of the Penal Code. At the time, when the

District Judge dismissed the stay application, he could have issued notice u/s 479-A of the Code to the Appellant to show cause why the appellant

should not be prosecuted for giving false evidence. If the District Judge thought that for the eradication of evils of perjury and fabrication of false

evidence and in the interests of justice, it was expedient that the appellant should be prosecuted, he ought to have recorded such a finding. Since he

did not think it necessary or expedient in the interests of justice to prosecute the appellant, nor did he record a finding that the appellant should be

prosecuted stating his reasons therefor, he cannot subsequently proceed against the appellant. The position appears to be clear in the light of the

decision of the Supreme Court in Shabir Hussein Bholu Vs. State of Maharashtra, . It is the contention of the petitioner that the judge, who tried

M.C. No. 78 of 1985, never recorded that the letter was fabricated and that it is expedient in the interests of justice to be proceeded with for the

offence u/s 193 of the Penal Code. In the absence of such a finding by the Judge concerned, another Judge, who succeeded that Judge, and who

happens to be the brother of the advocate Thilak Manohar taking cognizance against the petitioner is impermissible in law. In A. K.

Padmanabhan''s case, 1992 (1) Crimes 653 the High Court of Kerala has taken the view :

every wrong statement made before a Court of law is not intended to meet penal consequences including one u/s 195. When an offence is

committed in or in relation to a proceeding in any Court the Court cannot straightway file a complaint, but before proceeding suo motu or on an

application to file a complaint under S. 195 of the Code, the Court must form an opinion that it is expedient in the interests of justice that an enquiry

is to be held into the offence.

That means an enquiry itself was to be held only if it is found expedient in the interests of justice. Otherwise the matter can be dropped then and

there. But, if a complaint has to be filed, a preliminary enquiry contemplated u/s 340 of the Code is a must and it must be followed by a recorded

finding that a complaint has to be filed, in the interests of justice. Then alone a complaint in writing could be filed before the competent Magistrate.

The Court must be satisfied that there is reasonbale foundation for the charge that prosecution of the offender is necessary in the interests of justice.

Otherwise, time of the Court, which has to be usefully devoted for dispensation of justice, will be wasted on such enquires. Judicial wisdom and

experience must warn the Courts, in order to have circumspection in these matters. Parties to the litigation or even strangers may be interested, on

account of extraneous considerations in moving the Court for action u/s 340 of the Code. Before proceeding to have an enquiry under S. 340,

Court must consider whether it is worthwhile in public interest. Prosecution of a person for an offence under the Indian Penal Code is certainly a

grave matter and however much it is called for in the interests of justice, the person who has to face the prosecution should in all fairness be given

an opportunity to vindicate himself even prior to the commencement of the prosecution to show that there in no basis to prosecute. Prosecution

should not be launched as a matter of routine or in a mechanical manner. Filing of a complaint without enquiry and without recording a finding that it

is expedient in the interests of justice is illegal and improper. In K.K. Khanna and another Vs. M/s Expo Enterprises India, New Delhi and others,

, the High Court of Delhi has held thus (at page 1723) :

Where a criminal complaint for offences alleged to have been committed under S. 191 read with S. 193, I.P.C., was directed to be lodged, the

order of lodging of a criminal complaint could be said to have been vitiated when it was nowhere opined or recorded in the order as a fact that the

lodging of the complaint against the accused was expedient in the interest of justice as required under S. 340 of Cr.P.C. This requirement of law

was of fundamental importance and the omission in that regard vitiated the order. Even though prosecution for perjury may be possible but S. 340

of the Code does not permit complaints to be lodged in all those cases and lodging the complaint is permissible only when the court making the

complaint is of the positive view that the lodging of the complaints would be expedient in the interest of justice. (Case law discussed)"".

Two principal conditions necessary for laying a complaint under S. 340 are that the material produced should make out a prima facie case for a

complaint and (2) that it is expedient in the interests of justice to permit prosecution u/s 193, I.P.C., and making a mere false statement is not

enough and it has to be made intentionally. In the absence of a determination of the point that it would be expedient in the interests of justice that an

enquiry should be made under S. 340 into the matter. In the absence of such an enquiry and finding, the complaint is bad in law. The Court while

taking cognizance filing a complaint should be satisfied that there is a reasonable opportunity of establishing the charge sought to be levelled and it

should be of the opinion that it is expedient in the interests of justice to file a complaint. In Shiv Prasad Paliwal Vs. State of Rajasthan, , the High

Court of Rajasthan has taken the view that the criminal proceedings initiated against the petitioner in that case wherein the Magistrate not forming

an opinion as required under S. 340 for filing the complaint amounts to abuse of process of the Court and held that there would be no bar to

invoke the inherent jurisdiction. The proceedings being penal in nature it is not only desirable and reasonable but just and proper and in accordance

with the principles of natural justice to afford a reasonable opportunity by issuing a show cause notice to the accused party to establish by adducing

evidence oral and documentary that it was not expedient in the interests of justice to prosecute him. In Vittappan Vs. State, it has been held thus

(at page 1996; of Cri LJ) :

The enquiry contemplated in section 340 is an enquiry by the prosecuting Court itself and it is regarding the offence which appears to have been

committed in or in relation to the proceeding in that Court. It is in such an enquiry that the Court has to enter a finding regarding the offence which

appears to have been committed. Such an enquiry itself need to be conducted only if the Court is of opinion that it is expedient in the interests of

justice to do so. That means in all cases when it appears to the Court that an offence is committed it need not conduct an enquiry for the purpose

of taking a decision whether or not a complaint has to be filed. Even if an offence appears to have been committed, the enquiry, the consequent

finding and the complaint need be only in cases where it is expedient to do so in the interests of justice. Recording a finding by the Court regarding

commission of the offence is therefore a condition precedent to the prosecution. The provision to record a finding is not merely directory but is

mandatory. When the section requires a certain thing to be done it is not open to the Court to say that it is optional to do it or not. Failure to record

a finding is not a curable irregularity but it is an illegality.

In K. T. M. S. Mohamed v. Union of India, 1992 LW (Cri) 452 the Supreme Court has held thus :

Section 340 of Cri.P.C. confers an inherent power on a Court to make a complaint in respect of an offence 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, if that court

is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1)

of Section 195 and authorises such Court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after

recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words ""in or in relation to a proceeding in that Court

show that the Court which can take action under this section is only the Court operating within the definition of Section 195(3) before which or in

relation to whose proceeding the offence has been committed. There is a word of caution built in that provision itself that the action to be taken

should be expedient in the interests of justice. Therefore, it is incumbent that the power given by this section 340 of the Code should be used with

utmost care and after due consideration.

Having regard to the sequences and background in which the complaint was taken cognizance by a Judge, who happens to be the brother of the

advocate against whom a complaint was filed by the petitioner herein alleging theft of a letter when he was the advocate for the opposite party in

that maitenance case, gives an indication that the prosecution is on the ground of extraneous consideration.

In view of this settled position of law, in the absence of an enquiry, and an order that it is expedient in the interests of Justice to prosecute the

petitioner and in the absence of any finding by the concerned court that the letter Exs. P. 18 and P 19 intended to create false evidence the

complaint suffers from non-compliance of the mandatory requirements, continuance of a proceeding on the basis of such a complaint amounts to

abuse of the process and it is a case of no material touching the ingredients of the offence under S. 193, I.P.C. Therefore, I am of opinion that to

secure the ends of justice it is not proper to allow the prosecution and the same is quashed. The petition is allowed.

Petition allowed.