K.P.Muraleedharan vs Manager, Court Of The Enquiry Commissioner And Special Judge Thrissur

R.Narayana Pisharadi, J

The petitioner is the sole accused in the case C.C.No.192/2015 pending in the Court of the Chief Judicial Magistrate, Thrissur

The petitioner was the witness examined as PW1 in the Court of the Enquiry Commissioner and Special Judge, Thrissur in the case C.C.No.113/2008 of that Court. It was a case initiated on the basis of the first information statement given by the petitioner to the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau (VACB). The offences alleged against the accused in that case were under Sections 7 and 13(1) of the Prevention of Corruption Act, 1988.

When the petitioner gave evidence as PW1 in the Special Court in the case C.C.No.113/2008, he admitted that he had given the first information statement to the Dy.S.P. He also stated that the Dy.S.P recorded his statement and that he put his signature in it after reading the statement. However, on some material aspects, he disowned the first information statement given to the Dy.S.P. He did not support the prosecution case in toto and he was cross-examined by the Public Prosecutor with the permission of the court.

As per Annexure-A2 judgment, the learned Special Judge acquitted the accused in the case. However, the following observations/findings were made by the learned Special Judge in the last paragraph of the judgment.

"But before parting with, it requires to be observed that PW1 was making the proceedings a mockery by making mutually exclusive statements 1st before the Dy.S.P and caused the criminal proceedings and then taking a different stand before this court. Though his antecedents are not relevant, he has proved himself a person having no regard for truth.

It is certain from the Ext.P6 complaint that, he had serious allegations against the employee of the Sub Registry by name Kareem. The arrest of the 1st accused proved that the allegation was correct. But, when deposed as PW1 before court, he had no difficulty in disowning the version in the signed statement. Having regard to the circumstances, it is certain that he was yielding to the pressure of the accused, for extricating them from the proceedings. There are reasons to find that PW1 was intentionally giving false evidence before this court. Such a conduct of PW1 is viewed seriously. The Manager of this court is directed to initiate appropriate proceedings against PW1 Muraleedharan before appropriate court."

Thereafter, the Manager of the Vigilance Court filed Annexure-A1 complaint against the petitioner in the Court of the Chief Judicial Magistrate, Thrissur for committing the offence of giving false evidence which is punishable under Section 193 of the Indian Penal Code.

The petitioner has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code') for quashing Annexure-A1 complaint.

Heard learned counsel for the petitioner and the learned Public Prosecutor.

Learned counsel for the petitioner has challenged the maintainability of Annexure-A1 complaint on three grounds: (1) The Special Court had not authorised the Manager of that Court in writing to file complaint against the petitioner and therefore, he was not competent to file it. (2) There was no finding made by the Special Court that it was expedient in the interests of justice to file complaint against the petitioner for giving false evidence. (3) The petitioner was not legally bound to state truth while he gave the first information statement to the police. Therefore, the ingredients of the offence under Section 191 of the Indian Penal Code are not attracted.

Section 340(1) of the Code states 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 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 of the accused before such Magistrate, or if 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 given evidence before such Magistrate.

Section 340(3) of the Code states that, a complaint made under Section 340 shall be signed,-(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in that behalf.

Section 195(1)(b)(i) of the Code provides that, 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 by such officer of the Court as that Court may authorise in writing in that behalf, or of some other Court to which that Court is subordinate.

It is evident from the aforesaid provisions that, when a complaint is made under Section 340(1) of the Code in respect of an offence under Section 191 of the I.P.C allegedly committed in or in relation to any proceeding in any court, no Magistrate can take cognizance of that offence, unless such complaint is made by the presiding officer of that Court or by an officer of that Court who is authorised by the Court in writing to make such complaint. It is mandatory that, when the complaint is not made by the presiding officer of the court, but by an officer of the court, then the officer who makes the complaint shall be a person authorised by the Court in writing to file such a complaint. An oral authorisation is not sufficient. Authorisation to make the complaint shall be in writing.

In the present case, Annexure-A1 complaint is signed by the Manager of the Vigilance Court. The complaint does not contain any recital that the person who has signed the complaint was authorised in writing by any Court to make the complaint. The list of documents attached to the complaint also does not include any such authorisation.

However, in Annexure-A2 judgment itself, the Special Court had directed the Manager of that Court to initiate appropriate proceedings against the petitioner before the appropriate court. The direction contained in Annexure-A2 judgment to that effect can be considered as an authorisation made in writing for making the complaint before the proper court. It is to be noted that the direction given by the Special Court was not merely to take appropriate action against the petitioner. The direction given was to "initiate appropriate proceedings" against the petitioner "before appropriate court". It is also pertinent to note that the direction was given by the Special Court after making a specific finding that there were reasons to find that the petitioner had intentionally given false evidence and his conduct had to be viewed seriously. It clearly indicates that the direction given by the Special Court was to file complaint against the petitioner in the appropriate court for committing the offence of giving false evidence in the court.

In the aforesaid circumstances, I find no merit in the contention raised by the learned counsel for the petitioner that Annexure-A1 complaint is not maintainable for the reason that the Manager of the Vigilance Court was not specifically authorised in writing to make the complaint.

Section 340(1) of the Code mandates that, the Court has to form an opinion that it is expedient in the interests of justice that an inquiry should be made into any offence appears to have be committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court.

In Annexure-A2 judgment, after making a finding that there were reasons to find that the petitioner had intentionally given false evidence in the court, before issuing a direction to the Manager of the Court to initiate proceedings against the petitioner, the Special Court has not found that it was expedient in the interests of justice to prosecute the petitioner for committing such offence. The Special Court did not make any specific finding that it was expedient in the interests of justice to make a complaint regarding the offence appears to have been committed by the petitioner.

In Iqbal Singh Marwah v. Meenakshi Marwah : AIR 2005 SC 2119, the Apex Court has held as follows:

"In view of the language used in Section 340 Cr.P.C the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "Court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b)".

In Pritish v. State of Maharashtra : AIR 2002 SC 236, it has been held as follows:

"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 not peremptory that such preliminary inquiry should be held. Even without 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".

(emphasis supplied)

In order to initiate prosecution for perjury, the Court must prima facie reach a conclusion that there has been a deliberate and conscious effort to misguide the Court and to interfere in the administration of justice. It has to be found that such a prosecution is necessary in the interest of justice (See Ashok Kumar Aggarwal v. Union of India : (2013) 15 SCC 539).

The court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred in Section 340(1) of the Code, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course (See Amarsang Nathaji v. Hardik Harshadbhai Patel : AIR 2016 SC 5384).

The two essential pre-requisites under Section 340(1) of the Code are, (1) formation of an opinion that an offence referred to Section 195(1)(b) appears to have been committed in or in relation to a proceeding of the Court or as the case may be in respect of any document produced or given in evidence in a proceeding in that Court and (2) it is expedient in the interests of justice that an enquiry should be made into such offence (See State of Goa v. Jose Maria Albert : AIR 2018 SC 140 and State v. Pankaj Chaudhary : AIR 2018 SC 5412).

There are two conditions to be fulfilled before a complaint can be filed against a person for giving false evidence in a proceeding before a court. The first condition is that it must appear to the court that the person has given false evidence. The second condition is that the court shall form an opinion that it is expedient in the interests of justice to make an enquiry against such a person in relation to the offence. A complaint made, after recording a finding that a person has made false statement on oath but without forming an opinion that it is expedient in the interests of justice to make an enquiry into such offence, is not maintainable (See B.K.Gupta v. Damodar H. Bajaj : (2001) 9 SCC 742).

Very recently, in N.S. Nandiesha Reddy v. Kavitha Mahesh : 2021 SCC OnLine SC 538, the Apex Court has held as follows:

"Even in a case where the Court comes to the conclusion on the aspect of intentional false evidence, still the Court has to form an opinion whether it is expedient in the interest of justice to initiate an inquiry into the offence of false evidence, having regard to the overall factual matrix as well as the probable consequences of such prosecution.

The Court must be satisfied that such an inquiry is required in the interest of justice and is appropriate in the facts of the case."

There is a word of caution inbuilt in Section 340(1) of the Code itself that the action to be taken shall be expedient in the interests of justice. Therefore, it is incumbent that the power given under Section 340(1) of the Code should be used with utmost care and after due consideration.

At this juncture, it is to be noted that, the accused in the case C.C.No.113/2008 was acquitted by the Special Court not for the reason that the complainant, who is the petitioner herein, did not support the prosecution case. In fact, the Special Court had made a specific finding that the accused in the case committed the offences alleged against them. However, the Special Court could not convict the accused only for the reason that the order granting sanction for prosecution issued under Section 19(1) of the Prevention of Corruption Act was not valid as it was issued by an authority not competent to grant sanction. In such a situation, the Special Court should have been more circumspect to make a direction to initiate proceedings to prosecute the petitioner for the offence of giving false evidence in the court.

Learned Public Prosecutor submitted that, from the very fact that the Special Court directed initiation of prosecution against the petitioner, it can be discerned that the Special Court had formed an opinion that it was expedient in the interests of justice to make a complaint against him.

The above contention cannot be accepted. What is required under Section 340(1) of the Code is to record the opinion formed by the Court. Though the Court, while recording the finding contemplated under Section 340(1) of the Code, need not strictly adhere to the very language used in that section, namely, "that it is expedient in the interests of justice that an inquiry should be made", it should be discernible from the order that it had formed and recorded an opinion that it was a fit and proper case to launch prosecution against the person who committed perjury. The exact words of the section need not be used to record the required opinion. But, the opinion recorded by the Court shall be sufficiently clear. In the present case, no such opinion has been recorded by the Special Court.

In the absence of an opinion recorded by the Special Court that it was expedient in the interests of justice to prosecute the petitioner for committing perjury, the complaint filed against the petitioner was without complying with the procedure contemplated under Section 340(1) of the Code. It follows that, Annexure-A1 complaint is not legally maintainable and it is liable to be quashed.

True, Section 341(1) of the Code provides for filing appeal against an order under Section 340(1) of the Code when complaint is filed pursuant to such order. But, Section 482 of the Code has been devised to advance justice and not to frustrate it. Even when provisions exist in the Code for revision and appeal, relief under Section 482 of the Code can be resorted to for correcting grave errors that might be committed by the subordinate courts (See Pepsi Foods Ltd v. Special Judicial Magistrate : AIR 1998 SC 128).

Having found that Annexure-A1 complaint is not legally maintainable for the reason that it was filed without complying with the mandatory requirement under Section 340(1) of the Code, it is not necessary to consider the merits of the contention raised by the petitioner that he was not legally bound to state the truth when he gave the first information statement to the police.

Consequently, the petition is allowed. Annexure-A1 complaint against the petitioner, and all proceedings taken against him on the basis of that complaint, are hereby quashed.