In Re Sri. K.A. Padmanabhan Ex. M. L. A.

S. Padmanabhan, J.—u/s 195 (1) (b) of the Code of Criminal Procedure, if any offence, including the one punishable u/s 199 of the Indian Penal Code, is alleged to be committed in, or is relation to. any proceedings in any court, the competent Magistrate can take "cognizance only on the complaint in writing of that court or of any other court, to which that court is subordinate. An offence u/s 199 of the Penal Code involves any statements in any declaration made or subscribed, which is false and which the maker knows or believes to be false or does not believe to be true, touching any point material to the object, for which declaration is made or used and which declaration any court of justice of any public servant or other person is bound or authorised by law to receive as evidence of any fact. A declaration, which satisfies these conditions, made in an affidavit filed before court may attract an offence punishable u/s 199 of the Penal Code. When such an offence is committed, in or in relation to any proceeding in any court, court cannot straight away file a complaint. Court can take action either suo motu or on an application made to it. But, before proceeding suo raotu or on an application, to file a complaint u/s 195 (I) (b) of the Code, Court must form an opinion that it is expedient, in the interest of justice, that an enquiry is held into the offence. That means, an enquiry itself has to be held only if it is found expedient, in the interest of justice. Otherwise, matter can be dropped then and there. But, if a complaint is 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 interest of justice Then alone, a complaint, in writing, could be filed before the competent. Magistrate.

Such satisfaction of expediency, in the interest of justice, is insisted because the court may not be justified in wasting time and prosecuting people on trifles. Some inaccuracy in a statement, which may be innocent or inadvertent or immaterial, may not justify a prosecution as expedient in the interest of justice. There must be prima facie case of deliberate falsehood on a matter of substance and the court must be satisfied that there is reasonable foundation for the charge and that prosecution of the offender is necessary, in the interest of justice. Otherwise, time of the court, which has to be usefully devoted for dispensation of justice, will be wasted on such enquiries. Parties and witnesses may be making many statements which are incorrect. Some of them may be innocent, inadvertent or immaterial. Some may be intentional also. Courts may not be justified in resorting to enquiries in all such cases u/s 340. If such a course is adopted, there could be as much or even more enquiries than the number of cases pending before courts. 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 u/s 340, court must consider whether it is worthwhile in public interest or not. It is not every false declaration or statement that is intended to be the subject matter of prosecution. Purpose behind Section 199 of the Penal Code and the checks and balances, provided under. Sections 195 and 340 of the Code, will have to enter the judicial mind before attempting to have an enquiry u/s 340 of the Code.

In O. S. No. 132 of 1984, on the file of Subordinate Judge, Kozhikode, Mr. K. Karunakaran (present Chief Minister and former Opposition Leader) was a witness. Summons. was issued to him to appear before court for giving evidence. Through his advocate, he moved as application and got an adjournment to 27-1-1989. On that date also, Us counsel moved as affidavit for adjournment, on the ground that Mr. Karurifikaran was not able to appear because of some inconvenience due to Kerala A sembly session. In alleged public interest, one Mr. T. A Rajendran alias Nawab Rajendran moved Subordinate Judge in I. A. No. 365 of 1989 u/s 340 of the Code for prosecuting Mr. Karunakaran for having caused a false affidavit to be filed in court. It appears that falsity in the affidavit was alleged on the wrong assumption that adjournment was sought on the ground that there was Assembly session on 27-1-1989. Assembly was in session only upto 25-1-1989. Thereafter, session started only on 30-1-1989. Subordinate Judge himself found this fact in the impugned order. Advocate sought adjournment only on the information received over phone from the office, of Mr. Karunakaran that on account of some inconvenience due to Assembly setsion, he could not appear. Correctness of that statemmt was not under challenge. Challenge of the petitioner was only that there was no sitting of the Assembly on 27-1-1989. Advocate, in his affidavit, did not assert that there was assembly a session on 27-1-1989.

Mr. Rajendran was not in any way connected with the suit. Still It could be said that he was competent to move the court u/s 340 of the Code. Individuals may have their own motivations, which may or may not be justified in public interest. Even taking for granted that the allegations of Mr. Rajendran are correct or justified (in fact, allegations are not correct). Subordinate Judge was not justified in proceeding to have en enquiry u/s 340 of the Code. Judicial wisdom and experience ought to have informed him that his action in proceeding u/s 340 was not expedient in the interest of justice. I said so because it did not involve any matter of substance having a reasonable foundation justifying a prosecution in public interest. Request was only for an adjournment and that was granted. Muter ought to have end id there. Ground for adjournment, had no other impact in the case or on any other matter. If Subordinate Judge was not satisfied of the grounds, on which adjournment was sought, he could have very WJII rejected that request. Anyhow, he has chosen to allow. the request and adjourn the case. Every wrong statement made before a court of law Is not intended to meet the penal consequences.

After having taken a decision to proceed with an enquiry u/s 340 of the Code, Subordinate Judge accepted the further request of the petitioner and issued summons to the Legislature Secretary to disclose whether the Assembly was in session or not on 27-1-1989. I have earlier stated that this question was not a moot point and such a summons was absolutely unnecessary.. When Subordinate Judge himself says that there was no assertion in the affidavit that Assembly was in session on 27-1-1989 and that adjournment was not sought on that ground, it was unnecessary for him to ascertain whether there was assembly session or not on that day.

It appears from the order that the Legislature Secretary did not supply the information called for by Subordinate Judge. Even though Subordinate Judge himself found such an information unnecessary and dismissed the petition on the conclusion that the, affidavit does not contain any false declaration, he proceeded to observe;

But the Legislative Secretary has not shown the courtesy to assist this court in the administration of Justice. It is learned that the speaker of the Kerala Assembly prevented him in giving such an answer to this court in the form of an affidvait. Thus, in effect, the Hon''ble Speaker of the Kerala Assembly interfered in the administration of Justice.

Administrative Committee of this Court resolved to post the matter on the judicial sleds, u/s 115 of the CPC and Article 227 of the Constitution and thus it came up before me. I heard Government Pleader and a senior and eminent lawyer, Mr. C. K. Stvasankara Panicker, as amicus curiae. I did not think it necessary to issue notice to Mr. Rajendran or Mr. Karunakaran.

Both Government Pleader and Mr. Stvasankara Panicker, on the basis of constitutional provisions and decided cases, told me that Subordinate Judge was not in order in summoning the Legislature Secretary to supply the Information and in passing the impugned remarks. In In the matter of: Under Article 143 of the Constitution of India, , it was held that Article 212(2) of the Constitution confers immunity on officers and members of the legislature, on whom powers are vested, by or under the Constitution for regulating the procedure or the conduct of business or for maintaining order in the legislature from being subject to the jurisdiction of any court in respect of exercise of those powers, Article 212 (1) seems to make it possible for a citizen to call in questition, in the appropriate court of law, the validity of any proceedings inside the legislative, chamber if his case is that the said proceeding suffers not from mere irregularity of procedure, but from an illegality and unconstitutionality. In such a case, it would be open to be scrutinised in court of law. It was also pointed out by them that the constitutional protection under Article 211 is applicable only to High Court and Supreme Court Judges and not to subordinate judges. They further pointed out that the Legislative Secretariat, constituted under Article 187 of the Constitution, includes the Secretary, who is not amenable to the jurisdiction of the civil court and Subordinate Judge was not in order when uncalled for the information from the Secretary touching the business of the Assembly.

In Motilal Bhagwan Das and others v. Union of India and others (A. I. R 1965 Punjab 444), it was observed that Article 309 is not applicable to servants of the legislature, for whom; separate provision is mada in Article 187. Decision in Regunatha Panicker v. G. K. Thankappan (1986 KIT 611) was also pointed out to show that Article 212 (2) excludes the jurisdiction of ordinary courts ever the actions taken by officers of the legislature the procedure or product of business. Decision in M.S.M. Sharma Vs. Sri Krishna Sinha and Others, was also relied on while considering the position of the Speaker. 1 do not think it necessary for me to go into those aspects. For the purpose of the matter before me, it is unneceesay to decide whether Subordinate Judge was competent or not to issue summons to the Legislative Secretary, even though it was argued before me by Mr. Sivasaokftrn Pamcker, on the basis of the decision in Motital Bhagwan Das''s case ( A. I. R. 1965 Punjab; 444), that information should have been called for only'' from the Government. It was also argued that even if the Speaker prevented the Sacretary from divulging the information, it ought not to have been made the subject of comment by the court.

I do not with to go into those aspects not merely because they are unnecessary for my decision, but further on account of the fact that even otherwise, remarks are unnecessary or unauthorssed or unwarranted Judicial y. Legislature and Executive are the three vital organs of the State, having independence in their own respective spheres. Powers of each organ will have to be exercised fundamentally, subject to the provisions of the Constitution and the laws with a sense of mutual respect. By mutual respect and acceptance of mutual rights and limitations alone, healthy relationship could be had and healthy working of the Constitution and the laws could be ensured. Anything which is likely to effend the honour or dignity of one organ cannot come from the other. Sobriety, moderation and reserve are guidirrg principles of judicial pronoucemenfs. Judicial pronouncements should be couched in moderate and polite language and confined to observations, remaiks or findings absolutely necessary for rendering an effective decision on matters in issue. Anything concerning anybody, who did not have an opportunity of healing, will have to by avoided to the extent possible. Spiculations will have to be avoided. Judged by these standards, it is clear that the observations, quoted above were not at all necessary or justified. They were on aspects absolutely irrelevant for the decision and unsuppored by any acceptable data. Language used was also something which could offend the dignity of the Hon''ble Speeker and as such, not befitting of a judicial pronouncement I feel that it involves exercise of juridiction with material irregularity and it is a case in which Subordinate Judge exceeded his bounds. ln a case where a subordinate judicial officer acts without jurisdiction or refuses to exercise jurisdiction or acts in exercise of his jurisdiction with illegality of material irregularity, this Court will have to interfere, in exercise of the revhional powers u/s 115 of the Code of Civil Procedure. When a subordinate judicial officer or tribunal goes beyond bis bounds also, it is the right and duly of this Court, under Article 227 of the Constitution, to interfere ard keep him Within bounds. What Subordinate Judge said cannot, in any way, be justified. Impugned remarks will have to be expunged and the original petition allowed.

Original petition is, therefore, allowed and the impugned remarks:

But the Legislative Secretary has not shown the courtesy to assist this Court in the administration of juttice. It is learned that the Speaker of the Kerala Assembly prevented him in giving such an answer to this court in the form of an affidavit. Thus, in effect, the Hra''ble Speaker of the Kerala Assembly interfered in the administration of justice.

are hereby expunged from the order. Question whether Subordinate courts and tribunal crmld issue process or directions to the officers of the Legislature Secretariat, including Legislature Secretary or whether Government should be addressed in such matters is left open as it is unnecessary for this decision. The matter could be generally considered on the administrative side, in the light of the constitutional provisions and decided cases and appropriate general directions could be given.