I.H. Sekar vs Secretary And Ors

This is an application filed by the applicant in Application No.145 of 2015 to initiate prosecution against respondent No.4 under Section 340 read with Section 195 (1)(b) of Criminal Procedure Code.

The case of the applicant is that respondent No.4, the District Collector, Kancheepuram District filed a reply affidavit contending several lies, suppression and misrepresentation of facts in order to obstruct and interfere with the administration of justice and thereby to deny the delivery of justice. It is alleged that respondent No.4 has maliciously and with ulterior motive suppressed to reveal the correct classification of the revenue lands in Survey No.707 of Sholinganallur Village where in English it is recorded as "Back Water". According to the applicant, the entry "Poramboke" in the record of rights only indicates that no land revenue is payable to Back Water lands, Buckingham Canal, Cart-tracts, Roads which are classified as Poramboke. According to the applicant, the assertion of respondent No.4 that Survey No.707 of Sholinganallur Village is only a Poramboke land and not Back Water/Marsh lands/Wet lands was only to mislead and misrepresent the true status of the lands and the repeated use of the Tamil word "Kazhuveli" which is not understood even by most people in Tamil Nadu was also done with ulterior motives to hide the true nature and category of the land. Respondent No.4 deliberately omitted to mention the entry „Back Water‟ in the revenue records and claimed it only as "Kazhuveli" Poramboke land. Back Water naturally fall into the category of Water area / Wetlands / Marsh lands which enjoy protection under various statutes. It is also alleged that the Madras High Court did not give any finding in W.P.No.12125 of 2013 that the lands in Survey No.282 of Injambakkam Village are not Marsh lands and by raising such a contention 4th respondent has committed perjury and thus committed an offence under Section 193 of IPC and therefore is liable to be proceeded under Section 340 read with 195(1) (b) of Criminal Procedure Code.

Mr. V.B.R. Menon, the learned counsel appearing for the applicant relied on the decision of the Hon‟ble Supreme Court in „Pritish Vs. State of Maharashtra & others‟ (Appeal (Crl.) 1188 of 2001 dated 21.11.2001) and submitted that respondent No.4 is not entitled to be heard before passing order in the application. The argument is that as declared by the Hon‟ble Supreme Court, there is no statutory requirement to afford an opportunity of hearing to the persons against whom the court may file a complaint before the Magistrate for initiating prosecution proceedings and therefore there is no necessity to issue notice to the respondents. Learned counsel argued that when the cardinal question to be settled in the original application is whether the land in Survey No.707 is a water body or marsh land which is to be protected, wilful suppression of the fact that it is recorded in the revenue records as Back Water is wilful and by suppressing it respondent No.4 is interfering with the administration of justice. It is the argument that even though there is no specific finding by the High Court of Madras in W.P.No.12125 of 2013 that Survey No. 282 of Injambakkam Village is not a marsh land, respondent No.4 has alleged that it was held by the High Court that it is not a marsh land and thereby respondent No.4 is liable to be prosecuted as provided under Section 340 read with 195(1) (b) of Criminal Procedure Code.

Provisions under Chapter XXVI of Criminal Procedure Code relate to offences affecting the administration of justice. Section 340 provides that 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 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,- record a finding to that effect, make a complaint thereof in writing and send it to a Magistrate of the first class having jurisdiction.

Section 195 of Criminal Procedure Code provides prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

The Hon‟ble Supreme Court in Pritish‟s case (supra) relied on by the applicant, declared that, reading of the sub-section 1 of Section 340 of Code of Criminal Procedure makes it clear that the hub of this provision is formation of an opinion by the court 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 an opinion, the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. It is also held that 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". The preliminary enquiry contemplated under sub-section 1 of Section 340 is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary enquiry, 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.

The main crux of the case of the applicant is that though in the revenue records it is mentioned in respect of Survey No.707 of Sholinganallur Village in English as "Back Water" and in Tamil "Kazhüveli", respondent No.4 suppressed the fact that it is back water and relied on only the Tamil entry Kazhuveli. When the copy of the revenue records showing the classification of the land is already on record, we find no reason to hold that by not mentioning back water in the reply affidavit or asserting that Survey No.707 is not a water body, respondent No.4 appears to have committed an offence provided in Section 195 of Criminal Procedure Code as canvassed by the learned counsel appearing for the applicant.

Though it was vehemently argued that by submitting that the High Court of Madras held in W.P.No.12125 of 2013 that Survey No.282 is not a marsh land, respondent No.4 has committed forgery, we find no reason to accept the said contention also. It is seen from the order of the Hon‟ble High Court of Madras dated 28th February 2017 in W.P.No.12125 of 2013 produced by the applicant himself that the Hon‟ble High Court has recorded as follows:

"Today, when this writ petition is taken up, an additional affidavit has been filed by the 36th respondent on behalf of the respondents 36 to 38, in which it is stated that there is no tampering of records as alleged by the petitioner and that the District Forest Officer, Kancheepuram has reported that the lands in S.FNos.281, 282/1, 2 and 3 are not marsh lands".

It is the same stand taken by respondent No.4 in this case. True, there is no specific finding on that aspect by the Hon‟ble High Court of Madras in W.P.No.12125 of 2013 as it is clear that an enquiry was directed to be conducted by the Indian Institute of Technology, Madras on the nature of the land. In the facts and circumstances, we find no reason to initiate an enquiry or prosecution or lodge complaint as provided under Section 340 of Criminal Procedure Code as it is not expedient in the interest of justice to do so. The Miscellaneous Application is therefore dismissed, with no order