Dr. Tom Kurien, Gastroenterologist and Dr. Mathew Abraham, Assistant Professor vs State of Kerala

A. Hariprasad, J.—Petitioners are accused 4 and 5 in Crime No. 123 of 2006 of Vanchiyoor Police Station. Allegation in the first information report dated 27.05.2006, stated shortly, is the following: A person by name Dr. M.K. Mansoor was made an accused in C.C. No. 543 of 2001 on the file of the court of Chief Judicial Magistrate, Thiruvananthapuram. The case was posted on 07.06.2005. At that time, Dr. M.K. Mansoor was in London. But, on the posting date of the case, somebody impersonated him and attended the court on his behalf. Allegation in the first information report is to the effect that this was a cheating by personation punishable u/s 419 of the Indian Penal Code (for short, "IPC"). Therefore, a case was registered against Dr. M.K. Mansoor and another person, whose name was not mentioned in the first information report. On subsequent investigation, it was found that the petitioner along, with other accused, abetted in impersonation and also hatched a conspiracy with other accused to commit the offence. Therefore, a report was filed by the Investigating Officer before the court on 21.12.2007 adding Sections 109 and 120B of IPC also in the case. Aggrieved by that, accused 4 and 5 have come up before this Court in this proceedings u/s 482 of the Code of Criminal Procedure (for short, "Cr.P.C."). It is contended by the learned Senior Counsel for the petitioners that the 1st petitioner is a Gastroenterologist by profession and working as Senior Lecturer in the Medical College Hospital, Kottayam. The 2nd petitioner is a Neuro Surgeon and is presently working as Assistant Professor in the Department of Neuro Surgery, Sree Chitra Thirunal Institute of Medical Sciences, Thiruvananthapuram. According to the learned Senior Counsel for the petitioners, they are in no way connected with the alleged offence. Heard learned Senior Counsel for the petitioners and the learned Public Prosecutor.

The question mooted for consideration is whether the allegations in the first information report, if accepted in to will establish an offence punishable u/s 419 of IPC. It is indisputable that in order to attract an offence punishable u/s 419 of IPC, the first thing to be satisfied is that there must be an element of cheating. Section 415 of IPC defines "cheating". It is argued for the petitioners that there was no dishonest inducement or deception committed on the court by the petitioners. Learned Senior Counsel for the petitioners submitted that at the most the allegations will constitute an offence falling within Chapter XI of IPC, dealing with false evidence and offences against public justice. Section 205 of IPC is pertaining to false personation in a suit or prosecution. It reads as follows:

False personation for purpose of act or proceeding in suit or prosecution.- Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." This is the specific provision relating to offences committed against the administration of justice. Section 195 of Cr.P.C. prescribes restrictions in the matter of taking cognizance relating to such offences. Section 195(1)(b)(i) of Cr.P.C. says that no court shall take cognizance of any offence punishable under the various Sections mentioned therein, including Section 205 of IPC, 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. It is evident that the allegations do constitute an offence against the administration of justice. However, by no stretch of reasoning it can be said that the ingredients of the alleged offence would fall within Section 419 of IPC.

Learned Public Prosecutor submitted that the offence of abetment and criminal conspiracy alleged against the petitioners will stand even if Section 419 of IPC is not attracted. I am afraid, there is a subtle legal distinction. The question of abetment or criminal conspiracy will have a direct nexus with the offence that is alleged to have committed. If the actual offence committed is one falling u/s 205 of IPC, then the petitioners cannot be prosecuted for abetment or criminal conspiracy for an offence punishable u/s 419 of IPC. Therefore, the only point that is to be decided here is whether the allegations do constitute an offence punishable u/s 419 of IPC. It shall not be understood that the alleged impersonation committed by the accused in any case is a condonable act. Similarly those who have actually abetted such a serious offence shall not be set free. But the appropriate legal provision must be invoked to book the offenders. Therefore, this Court finds that the present legal action against the petitioners is not maintainable.

In the result, petition is allowed. First information report, in so far as the petitioners are concerned, is set aside. It is made clear that the trial court is free to take appropriate action, if it is brought to its notice that an offence relating to administration of justice was done in this matter and then it shall proceed in accordance with law.

All pending interlocutory applications will stand dismissed.