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Judgment
Shivaraj Patil, J.—Heard the learned counsel for the petitioner, and the learned Public Prosecutor for respondent No. 1 and the learned
counsel for the second respondent.
Crl.M.P. No. 1840 of 1997 is filed to order an enquiry as required u/s 340 of the Code of Criminal Procedure (for short, the Code) against
respondents for the offences punishable Under Sections 193 and 195, I.P.C. Crl.M.P. No. 2274 of 1997 is filed by the petitioner u/s 389,
Cr.P.C. praying to suspend the sentence imposed on him in Sessions Case No. 259 of 1989 on the file of the Principal Sessions Judge, Madurai,
and to release him on bail pending disposal of the appeal in Crl.A. No. 20 of 1991 in this Court.
Briefly stated, the facts leading to the filing of these two petitions, are the following:
The petitioner was an accused in S.C. No. 259 of 1989 on the file of the Principal Sessions Judge, Madurai. On trial he was found guilty u/s 302,
I.P.C. Accordingly he was convicted and sentenced to imprisonment for life. Aggrieved by the said conviction and sentence he filed appeal before
this Court which was registered as C.A. No. 20 of 1991. In the said appeal he filed Crl.M.P. No. 982 of 1991 seeking suspension of sentence
and his release on bail pending disposal of the appeal. This court passed an order on 18.3.1991 in the aforementioned Crl.M.P. 982 of 1991
granting bail to the petitioner subject to the conditions viz., (i) the petitioner executing a bond for Rs. 5,000 with two sureties each for a like sum to
the satisfaction of the Judicial Magistrate No. 2, Madurai, and (ii) the petitioner should stay within the limits of Trichy Town and report at the
Containment Police Station daily at 10.00 A.M. until further orders.
Crl.M.P. No. 3750 of 1996 was filed by the State through the Inspector of Police, Z-1 Ommachikulam Police Station, Madurai District, to
cancel the bail granted to the petitioner on 18.3.1991 in Crl.M.P. No. 982 of 1991, stating that the petitioner did not comply with the condition
attached to the bail order in Crl.M.P. No. 982 of 1991; while he was so on bail, the petitioner got himself involved in a murder case concerned in
Crime No. 261 of 1995 on the file of Othakadai Police Station for alleged offences Under Sections 147, 148, 452, 302 and 149 I.P.C.; the
petitioner got involved in a case in Alanganallur Police Station Crime No. 226 of 1996 for alleged offences Under Sections 4(1)(a) of the Tamil
Nadu Prohibition Act and Section 20(b) of N.D.P.S. Act in which case he was released on bail by the learned Special Judge for E.C. Act and
N.D.P.S. Act cases, Madurai in Crl.M.P. No. 1445 of 1996 on 29.8.1996 with a condition that he should appear before the Inspector of Police,
Alanganallur Police Station twice a day. It was alleged that the petitioner did not report to the police station even for a single day. A Division
Bench of this Court, after hearing the learned counsel for the parties, allowed Crl.M.P. No. 3750 of 1996 and cancelled the bail granted in
Crl.M.P. No. 982 of 1991 dismissing it by the order dated 6.1.1997.
It is thereafter Crl.M.P. No. 1840 of 1997 was filed as already stated above, to hold enquiry against the respondents in the petition u/s 340,
Cr.P.C. for the offences said to have been committed Under Sections 193 and 195, I.P.C. Crl.M.P. No. 2274 of 1997 is filed u/s 389, Cr.P.C.
to suspend the sentence imposed on the petitioner in S.C. No. 259 of 1989 by the learned Sessions Judge, Madurai, and to release him on bail
pending disposal of the appeal in Crl. Appeal No. 20 of 1991 on the file of this Court. These are the two petitions which are to be considered and
disposed of now. We may also mention here itself that Crl.M.P. No. 1839 of 1997 was filed to suspend the sentence passed in S.C. No. 259 of
1989 aforementioned and to release the petitioner on bail pending disposal of the appeal in C.A.20 of 1991. The said Application Crl.M.P. 1839
of 1997 was rejected by the Division Bench of this Court on 27.5.1997.
The petitioner and his father-in-law, viz., S. Paramasami have filed affidavits in support of Crl.M.P. No. 1840 of 1997 in Crl.M.P. No. 3750 of
1997 in C.A.20 of 1997, stating that the counter affidavit filed in Crl.M.P. No. 3750 of 1996 may be read together along with the affidavits filed in
this petition. In short and substance they stated that the petitioner was falsely implicated in Crime No. 226 of 1996 of Alanganallur Police Station
u/s 20(b) of N.D.P.S. Act; so also he was falsely implicated in Crime No. 261 of 1995 of Othakadai Police Station. It is denied that the petitioner
has been absconding in that case as stated by the Inspector Ayyanar in his affidavit. The petitioner was taken into custody in the N.D.P.S. case
and was released on bail on 29.8.1996 which fact was known to the same police officer who got the bail granted to the petitioner in Crl.M.P. No.
982 of 1991 canceled by filing affidavits containing false averments. The petitioner being an illiterate agriculturist was not aware of any conditions
imposed in Crl.M.P. No. 982 of 1991.
It is further submitted by the petitioner and his father-in-law that subsequent to the order dated 6.1.1997 made by This court in Crl.M.P. No.
3750 of 1996, copies of relevant documents filed in Crime No. 261 of 1995 of Othakadai Police Station from the Court of the Judicial Magistrate,
Melur, Madurai District were obtained which will establish the ill-will borne by the respondents against the petitioner and their consequent mala-
field action to foist false case against the petitioner, and use the same for swearing to false affidavits in proceedings before this court for cancellation
of his bail. In the first affidavit filed by the father-in-law of the petitioner in Crl.M.P. No. 3750 of 1996 it is stated about the foisting of N.D.P.S.
case in Crime No. 226 of 1996 of Alanganallur Police Station resulting in the suspension of concerned police officers for their misconduct in that
case.
It is further stated that on enquiry from the clerical staff of the court of the Judicial Magistrate, Melur, it is gathered that till date, the properties
i.e., 93 bottles of Ginger buries containing 500 ml., and 5 kg. of Ganja said to have been seized in the said case on 26.7.1995 have not yet been
received in that court, though the accused were produced and remanded to Judicial custody eight months ago. In Crime No. 261 of 1995 of
Othakkadai Police Station, copy of the affidavit of M. Nataraja Nadar father of the deceased Muniappan, filed in Crl.M.P. No. 436 of 1995 in
the C.M.M. Court, Madurai on 21.8.1995, is obtained in which it is prayed for taking action regarding false implication of persons from Madurai
leaving out the real culprits who were residents of Gandhi Nagar, Othakadai. Thus the respondents, knowing about the fabricated F.I.R. in Cr.
No. 261 of 1995 in Othakadai Police Station and also foisting of the case in Crime No. 226 of 1996 of Alanaglannur Police Station, and
consequent action against the police officers suspending them, have not hesitated to make use of the fabricated records by swearing to false
affidavits in the proceedings in Crl.M.P. No. 370 of 1996 before this Court. Thus, on the basis of these statements Crl.M.P. No. 1840 of 1997 is
filed for taking action, as stated above.
The respondent No. 1 has filed common counter affidavit in Crl.M.P. Nos. 1389 and 1840 of 1997 stating that he was the Inspector of Police,
Ommachikulam Police Station, and now he is working at the District Crime Branch, Madurai District; he had filed affidavit in support of Crl.M.P.
No. 3750 of 1996 filed for cancellation of bail granted to the petitioner and as such he is well acquainted with the facts and circumstances of the
case; hence the counter affidavit is filed.
In the said common counter-affidavit it is further stated that the petitioner did not comply with the conditions of bail imposed by this court in
Crl.M.P. No. 982 of 1991; and that the petitioners was subsequently involved in Alanganallur Police Station Crime No. 226 of 1996 u/s 20(b) of
N.D.P.S. Act and Section 4(1)(a) of Tamil Nadu Prohibition Act. Hence he (respondent No. 1) approached this Court in Crl.M.P. No. 3750 of
1996 for cancellation of bail granted to the petitioner.
In addition to his affidavit, Ayyanar Inspector of Police, Othakadai Police Station filed an additional affidavit stating that the petitioner
committed an offence on 16.7.1995 concerned in Cr.No. 261 of 1995 of that police station for the offences Under Sections 147, 148, 452, 302
and 149, I.P.C., and that the charge sheet was filed in the court of Judicial Magistrate No. 1, Melur on 27.7.1996, and that the accused was
arrested on 23.2.1997. After hearing both sides, this court was pleased to observe that the factum of the accused getting himself involved in the
aforesaid criminal cases has been particularly admitted by the accused/petitioner in the counter affidavit filed on his behalf, and cancelled the bail
earlier granted to the petitioner. It is denied that the petitioner has been falsely implicated in the aforesaid cases registered in Othakadai Police
Station ad Alanganallur Police Station.
The respondent No. 1 has further stated in his affidavit that he has perused the case diary of Othakadai Police Station in Crime No. 261 of
1995; it is seen from the F.I.R. in that case that the case was lodged by one Natarajan Nadar father of the deceased in that case; both in his
complaint as well as in the statement recorded u/s 161 Cr.P.C., the said Natarajan has implicated the petitioner, and after investigation the
Inspector of Police, Othakadai Police Station has filed final report on 27.7.1996 which is now pending on the file of the Judicial Magistrate, Melur
in P.R.C. No. 2 of 1997; the petitioner was arrested on 27.7.1996 in connection with Crime No. 226 of 1996 of Alanganallur Police Station, and
that till the filing of the affidavit on 3.10.1996 the petitioner had not complied with the conditions imposed by the Special Court. It is further stated
that it is open to the petitioner to raise his defence at appropriate stage before the trial court and it is premature at this stage to consider his
defences. Under these circumstances the respondent No. 1 has prayed for dismissal of the applications made in Crl.M.P. Nos. 1839 and 1840 of
1997.
Shri A.A. Selvam, learned counsel for the petitioner submitted that the bail granted in Crl.M.P. No. 982 of 1991 could not be cancelled by
allowing Crl.M.P. No. 3750 of 1996 even exercising inherent power of the High Court when such a provision was not made even after
amendment to the Code unlike in bailable cases. He elaborately made submissions by citing a decision of the Supreme Court. We do not think it
appropriate for us to sit in Judgment over the order passed by the other Division Bench of this Court on 6.1.1997 cancelling the bail in Crl.M.P.
No. 3750 of 1996. If the petitioner is aggrieved by the said order, he has to pursue his remedy in accordance with law before the Apex Court.
The learned counsel for the petitioner, in support of the contentions raised in Crl.M.P. No. 1840 of 1997 filed u/s 340 Cr.P.C. urged that, the
affidavit is filed by one Inspector respondent No. 1 alone; he could not file affidavit in regard to other crimes of other police stations i.e., Crime
No. 226 of 1996 of Alanganallur police station and Crime No. 261 of 1995 of Othakadai Police Station; more so when the petitioner was falsely
implicated in those crimes; in the affidavit filed by respondent No. 1, there has been deliberate suppression of the fact that the concerned police
officers were suspended for filing a false case in Crime No. 226 of 1996 of Alanganallur police Station; the petitioner never absconded; in the
N.D.P.S. case in Crime No. 226 of 1996 even after several months lapsed the properties were not produced before the court; even in Crime No.
261 of 1995 of Othakadai Police Station, the petitioner was falsely implicated; the respondent No. 1 filed Crl.M.P. No. 3750 of 1996 making
false statement that the petitioner did not observe the conditions of bail after a period of five years; under the circumstances, the petition Crl.M.P.
1840 of 1997 may be allowed, and the sentence imposed on the petitioner in S.C. No. 259 of 1989 on the file of Principal Sessions Court,
Madurai be suspended and be be enlarged on bail as prayed for in Crl.M.P. No. 2274 of 1987. The learned counsel for the petitioner relied on
some decisions in support of his submissions.
On the other hand, Shri Shanmugasundaram, learned Public Prosecutor, submitted that the petitioner was convicted on 21.12.90 in S.C. No.
259 of 1989 on the file of Sessions Court, Madurai and was sentenced for life imprisonment; he was granted bail on 18.3.1991 by this Court in
Crl.M.P. No. 982 of 1991 in C.A. No. 20 of 1991 filed against the order of conviction and sentence passed in S.C. No. 259 of 1989; he was
arrested in another case in 1996 again; affidavit was filed by the respondent in Crl.M.P. No. 3750 of 1996 on the basis of the available material to
cancel the bail; after hearing both the parties the said petition was allowed and the bail was cancelled on 6.1.1997; consequently the petitioner was
arrested again on 23.2.1997 at Dindigul; Crl.M.P. No. 1839 of 1997 filed for suspension of sentence and grant of bail was dismissed on
27.5.1997.
The learned Public Prosecutor pointed out to paragraph 9 of the order of the Division Bench of this Court dated 6.1.1997 made in Crl.M.P.
No. 3750 of 1996 showing the grounds made out for cancellation of bail granted to the petitioner. In the said order the Division Bench of this court
has noticed that while the petitioner was on bail he got himself involved in two cases in Crime No. 261 of 1995 of Othakadai Police Station and
Crime No. 226 of 1996 of Alanganallur Police Station. He also submitted that the Division Bench of this Court in the said order, prima-facie
accepting the affidavit of respondent No. 1, passed the order even after taking note of the counter affidavits filed in that petition, and after hearing
both the parties. He also submitted that the respondent No. 1 could file the affidavit based on the documents and the information available to him;
merely because he filed affidavit in regard to other crimes registered in other police stations based on the records and informations, it cannot be
said that the respondent has made false statements or fabricated evidence so as to take action u/s 340 Cr.P.C. It may be open to the petitioner to
take all defences available to him during trial of the cases pending against him. If the Courts come to the conclusion in regard to the other two
crimes mentioned above, during the course of the trial, that the respondents made false statements or fabricated evidence in a judicial proceedings,
or that the petitioner makes out such a case, action could be taken appropriately at that stage.
Reacting to this submission, the learned counsel for the petitioner submitted that action can be taken u/s 340, Cr.P.C. at any stage of the
proceedings and it is not necessary that one should wait for completion of trial or termination of the proceedings.
We have carefully considered the submissions made by the learned counsel for the parties.
Crl.M.P. No. 1840 of 1997 is filed with a prayer to hold enquiry u/s 340 Cr.P.C. against the respondents saying that the respondents are
liable to be punished for the offences Under Sections 193 and 195 of I.P.C. In the course of argument, the learned counsel for the petitioner took
us through Sections 191 to 195, I.P.C. Section 193, I.P.C. prescribes punishment for giving false evidence. It states, whoever intentionally gives
false evidence in any stage of judicial proceedings, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding,
shall be punished with imprisonment of either description for a term which may extent to seven years, and shall also be liable for fine; and whoever
intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine. Section 195 of I.P.C. has no application to the case on hand having regard to the averments
and allegations made in the petition.
Section 191 of I.P.C. states as to when one is said to give false evidence. Whoever being legally bound by an oath or by an express provision
of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either
knows or believes to be false or does not believe to be true, is said to give false evidence. Section 192, I.P.C. explains as to when one is said ""to
fabricate false evidence.
As can be seen from the order dated 6.1.1997 made by the Division Bench of this Court in Crl.M.P. No. 3750 of 1996, bail was cancelled on
the grounds that the petitioner did not comply with the conditions imposed for enlarging him on bail in Crl.M.P. No. 982 of 1991; he was involved
in two other criminal cases in Crime No. 261 of 1995 of Othakadai Police Station and Crime No. 226 of 1996 of Alanganallur Police Station,
reference to which is already made above. The grievance of the petitioner is that the affidavit filed by respondent No. 1 in respect of the
aforementioned two crimes of other police stations in which the petitioner is falsely involved, itself amounts to giving false statement when the other
concerned police officers have not filed affidavits; there was purposeful suppression of the fact that the concerned police officers were suspended
for involving the petitioner falsely in Crime No. 226 of 1996 of Alanganallur Police Station; and that the petitioner never absconded.
The affidavit filed by respondent No. 1 is stated to be based on the records, diaries and information referring to specific Crime Numbers of the
two other police stations. Merely because the concerned police officers of those police stations have not filed affidavits, it cannot be said that the
respondent No. 1 could not gather information as investigating officer, and file a petition for cancellation of bail in Crl.M.P. No. 3750 of 1996
when the petitioner did not observe one of the condition of bail granted in Crl.M.P. No. 982 of 1991, with which case the respondent No. 1 was
concerned, as mat case arose out of his jurisdiction. It cannot also be said that affidavits cannot be filed based on information. Further it was for
the Division Bench of this Court to act upon or not to act upon, or accept or not to accept, the affidavit filed by respondent No. 1 in support of
Crl.M.P. No. 3750 of 1996, or to direct the concerned police officers in crime No. 261 of 1995 of Othakadai Police Station and Crime No. 226
of 1996 of Alanganallur Police Station to file affidavits, before passing the order in the said petition on 6.1.1997.
If a false statement is made knowingly that the information was wrong, the position would be different. As observed by the Division Bench of
this Court in its order dated 6.1.1997 in Crl.M.P. No. 3750 of 1996 the involvement of the petitioner in two other criminal cases is not disputed.
Whether the petitioner is falsely implicated in those cases is a matter that has to be examined essentially during the course of the trial. Non
observation of the condition of bail granted in Crl.M.P. No. 982 of 1991 cannot also be said to be false as the petitioner himself in paragraph 6 of
the affidavit filed in Crl.M.P. No. 3750 of 1996 has stated that he being an illiterate agriculturist was not aware of any condition imposed in
Crl.M.P. No. 982 of 1991, and that it may be condoned for non-observance of the condition of bail. He has further stated that he would abide by
any such condition which may be imposed while dismissing the petition filed for cancellation of bail.
Suppression of information that the police officers were suspended for falsely involving the accused in Crime No. 226 of 1996 of Alanganallur
police station, in our view, does not fall within the meaning of either Section 191 or Section 192 I.P.C. so as to say that the respondents are guilty
of either giving false evidence or fabricating false evidence. Plain reading of the said provisions does not indicate that suppression of information
amounts to giving of false evidence or fabricating of false evidence. Under these circumstances, at this stage, on the material placed before us, we
are not inclined to act u/s 240 of Cr.P.C. and we are not of the opinion that it is expedient in the interest of justice that an enquiry should be made
into any offence referred to in Clause (b) of Sub-section (1) of Section 195. It is open to the petitioner to take the available defence to him in the
cases filed against him and to establish, if so desired at a subsequent stage, that the respondents are guilty of giving false evidence or fabricating
false evidence in the proceedings.
We are conscious of the legal position, that action can be taken u/s 340 Cr.P.C. at any stage of the proceedings. It is not on the ground that
action cannot be taken till the trial is completed that we are refusing to act u/s 340 Cr.P.C. but we are not doing so now, for the reasons mentioned
above. We do not think it necessary to refer to the decisions cited by the learned counsel for the petitioner as we have arrived at the conclusion on
the facts of the case on hand and there is no quarrel as to the principles enunciated in the said decisions.
Under these circumstances, having looked into all aspects and for the reasons stated above, we find no merit in Crl.M.P. No. 1840 of 1997. It
is liable to be dismissed. Accordingly it is dismissed.
As far as Crl.M.P. No. 2274 of 1997 is concerned, in our opinion, no relief can be granted in the view we have taken in Crl.M.P. No. 1840
of 1997 and have dismissed it, and in view of the order passed in Crl.M.P. No. 3750 of 1996 canceling the bail by the Division Bench of this
Court, and dismissal of Crl.M.P. No. 1839 of 1997 by another Division Bench of this Court. Hence Crl.M.P. No. 2274 of 1997 is also
dismissed. We make it clear that this order of ours dismissing Crl.M.P. Nos. 1840 of 1997 and 2274 of 1997 does not come in the way of the
petitioner to pursue his remedy if so desired against the order dated 6.1.1997 made by the Division Bench of this Court in Crl.M.P. No. 3750 of
1996, and to ray release of the petitioner on bail before the Apex Court.
Before parting with the case, we observe that having regard to the fact that Crl. Appeal No. 20 of 1991 was filed about six years back, the
petitioner once having been released on bail on 18.3.1991, and having been re-arrested on 23.2.1997 pursuant to the order dated 6.1.1997 made
by this Court in Crl.M.P. No. 3750 of 1996, it is open to him to pray for expeditious hearing of the said appeal C.A.20 of 1991.