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Judgment
V. Bakthavatsalu, J.—The appeal is filed against the order of the XIII Additional Special Judge, Chennai against the order passed in
Crl.MP. No. 1308 of 1999 in C.C. No. 5 of 1997. The respondent herein is the complainant in the above Crl.M.P. No. 1308 of 1999. The
appellant is P.W. 18 in C.C. No. 5 of 97. The respondent/complainant filed application u/s 195(1) (b) r/w Section 340 Cr.P.C.
The facts which led to the Court in passing the impugned order are as follows:
On receipt of a complaint given by one Madhavan Nair, I.A.S., in respect of offences committed in relation to the erstwhile J. Jayalalitha Transport
Corporation, a case was registered u/s 120-B r/w 409, 109,409 and 418 IPC and Section 13(2) r/w 13(1)(c) and (d) of the Prevention of
Corruption Act. The appellant has stated before the Investigating officer and also before the XVI Metropolitan Magistrate u/s 164(5) Cr.P.C. that
he paid commission of Rs. 2,00,000/- to one Sethuraman, who is the first accused and Rs. 1,10,000/- to Minister Senkottaiyan through his friend
Natarajan, who is the fourth accused. But, when he was examined before the Special Court, he turned hostile and consequently, he was treated as
turned hostile by the prosecution. It is alleged by the complainant that the statement made before the Court is false and it was made with full
knowledge that he is giving false evidence for the purpose of helping the accused. Therefore, the respondent herein filed a complaint praying the
Court to make a complaint u/s 193 IPC and forward the same to the Magistrate having jurisdiction to try the offence.
On a consideration of the above complaint and the evidence of P.W. 18 given before the learned Magistrate and the Court, the learned Special
Judge has come to the conclusion that the appellant, P.W.18, has given false evidence intentionally before the Court and that therefore, it is just
and necessary to prosecute P.W.18 for giving false evidence and accordingly, the Court allowed the petition filed by the respondent herein.
Aggrieved by the said order, P.W.18 has filed this revision.
Learned counsel for the appellant has raised the following contentions:
The mandatory aspect of the ''expedient in the interest of justice'' was not properly explained and considered by the trial Court. In the complaint,
the complainant has prayed for conducting an enquiry before passing an order u/s 340 Cr.P.C. But, the Court has passed the order in a
mechanical manner which is improper.
The Special Judge has not conducted any enquiry as contemplated u/s 340 Cr.P.C. It is not clear on what basis, the Special Judge has come to
the conclusion that the evidence given before the Court is false. The complaint u/s 193 IPC has to be filed only after recording a finding to the
effect that the lodging of the prosecution is expedient in the interest of justice. The preliminary enquiry contemplated u/s 340 Cr.P.C. is essential in
the interest of justice and that it must be followed by recording a finding. Wide discretion is given to the Court for conducting an enquiry. There are
no materials before the Court to come to the conclusion as to which version of P.W.18 is true and which version is false. The mere fact that the
witness has given contradictory statement is not sufficient to order for prosecution u/s 193 IPC. The Court failed to consider the circumstances
under which the appellant was forced to give statement u/s 164 Cr.P.C. The appellant was coerced by the respondent/police to give statement u/s
164 Cr.P.C.
On the other hand, learned public prosecutor contended that u/s 340 Cr.P.C., it is not incumbent upon the Court to conduct preliminary enquiry
and that it is within the discretionary powers of the Court to conduct preliminary enquiry or not and that the question as to which of the version is
false or true cannot be decided while making a complaint u/s 340 Cr.P.C. and that the Court is empowered to initiate proceedings suo-moto u/s
340 Cr.P.C. and that the Court after perusing the evidence and the statement of P.W.18 has come to the conclusion that prima-facie case is made
out to lodge a complaint u/s 193 IPC and that the Court has also recorded finding that it is expedient in the interest of justice that enquiry should be
made into such offence and that as requirements of Section 340 Cr.P.C. are complied with, there are no valid ground to interfere with the order
passed by the Special Court in Section 193 IPC.
The point for determination is whether the order of the Special Court in ordering prosecution for the alleged offence u/s 193 IPC suffers from
any illegality or infirmity?
Before proceeding further to discuss the rival contention of the parties, it becomes necessary to look into the relevant Section of IPC and
Cr.P.C.
Section 191 IPC defines what is false evidence. The Section reads thus
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, make 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 193 IPC provides punishment for the said offence. The Section reads thus:
Whoever intentionally gives false evidence in any stage of a judicial proceeding, 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 extend to seven years, and shall also
be liable to 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
For lodging a complaint u/s 193 IPC, the special procedure is contained in Section 195 Cr.P.C. As per the above provision, no Court shall
take cognizance of any offence punishable u/s 193 to 196, except on the complaint in writing of that Court. The above procedure is contained in
Section 195(1)(b)(i). It is, thus, seen that without the complaint of the Court, the Court shall not take cognizance of the complaint given u/s 193
IPC. Section 340 Cr.P.C. lays down procedure to be followed in lodging complaint for the offence referred to in Clause(b) of Sub-section (1) of
Section 195 Cr.P.C. Section 340 Cr.P.C. reads thus:
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 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, of if the alleged offences is non-bailable and Court thinks it
necessary so to do, send the accused in custody to such Magistrate, and
(e) bind over any person to appear and give evidence before such Magistrate
The raison d''etre for incorporating the above sanguine provision in the code is to safeguard against vexatious and frivolous litigations. Learned
counsel for the appellant and also learned Public Prosecutor cited number of decisions to substantiate their claims. The question that arises for
consideration now is whether the Special Court, before ordering for prosecution has followed the inbuilt precautions contained in Section 340
Cr.P.C.
It cannot be disputed and infact it is not disputed that the appellant has given statement before the Metropolitan Magistrate u/s 164(5) Cr.P.C.
In the statement before the Magistrate P.W.18 has stated that he gave Rs.2,40,000/- to one Sethuraman and Rs. 1,10,000/- to Minister
Senkottaiyan through one Natarajan. But, when he was examined before the Special Court, he has stated that he did net pay the amount to
anyone. Therefore, he was treated as hostile and was cross examined by the prosecution. He has stated that he gave statement before the
Magistrate due to compulsion and coercion exercised on him by the police. It is, thus, apparent that both the statements given by P.W.18 are
diametrically opposite to each other. In the above circumstances, it cannot be disputed that one of the above two versions must be false. The order
of the Special Judge will show that the Court perused the earlier statement recorded u/s 164 Cr.P.C. and also the deposition recorded by the
Special Judge. On a perusal of the order passed by the Special Judge, it is clear that the evidence given by P.W.18 before the Court and also the
statement recorded by the Magistrate u/s 164(5) Cr.P.C. were considered by the Court before passing the final order, on a perusal of the above
statement, the Special Court has come to the conclusion that the Court is satisfied that the offence referred to u/s 195 (1)(b) Cr.P.C. appears to
have been committed by the witness and that he had given false evidence intentionally before the Court. Learned counsel for the appellant
contended that as the witness has staled that that he gave statement u/s 164(5) Cr.P.C. under coercion, the Court ought to have considered the
case of the appellant and that the Court should have given a finding as to under what circumstances, the witness gave statement before the
Magistrate and that in the above set of the facts, the Court should have given opportunity to the appellant by conducting preliminary enquiry.
As rightly contended by the learned Public Prosecutor that it is not essential for the Court u/s 340 Cr.P.C. to conduct preliminary enquiry. To
substantiate the same, he relies upon Section 340 Cr.P.C. itself. All that is stated in the above section is that if the Court is satisfied that the offence
mentioned in Section 195 (1)(b) appears to have been committed, make a complaint in writing after recording a finding to that effect. The above
section will also show that it is open to the Court to conduct preliminary enquiry. It is stated in explicitly language thus:
such Court may after such preliminary enquiry if any as it thinks necessary
The above plain languages employed in the above section itself will show that conducting preliminary enquiry is not mandatory before making a
complaint u/s 195(1)(b). It is thus clear that it is not incumbent upon the Court to give opportunity to the accused to show cause as to why he
should not be preceded for the offence u/s 183 IPC. But, it is seen from Section 344 Cr.P.C. that if the Court expresses an opinion to the effect
that the witness has given false evidence or fabricated false evidence at the time of delivery of any judgment or final order, may after giving the
offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such, offender summarily and sentence
him to imprisonment. Sub-clause (3) to the above Section states that nothing in the Section affect the power of the Court to make a complaint u/s
340 for the offence, where it does not choose to proceed under this section. But, Section 340 Cr.P.C. does not state that opportunity should be
given to the accused before making an order to show cause as to why he should not be proceeded with for the offence u/s 193 IPC. In the
absence of said specific requirements in Section 340 Cr.P.C. I am unable to accept the contention of the appellant that preliminary enquiry such as
giving opportunity to the accused or considering the circumstances under which the appellant gave evidence before the Magistrate should have
proceeded before making the complaint.
Learned counsel for the appellant relies upon certain decisions of Apex Court and other High Courts on this aspect of the case. In Dr. B.K.
Pal Chaudhry v. State of Assam (AIR I960 SC 133) it is held by the Apex Court that in a case governed by Sub-section (5) of Section
479A(Cr.P.C.1898) that the terms of both Sub-sections (1) & (5) have to be complied with. Sub-section (5) of Section 479A of the old Cr.P.C.
states that where an appeal has been preferred from any decision of a Civil Revenue or Criminal Court and where the appellate Court makes such
complaint, the provisions of Sub-section (1) shall apply and accordingly, no such order shall be made without giving the person affected thereby an
opportunity of being heard. In view of the mandatory requirement in Sub-Section 95 of Section 479-A, the complaint without giving an opportunity
to the person affected thereby is not sustainable in-law. I fail to understand as to how the above decision will apply to the facts of this case. On the
interpretation of the terms and conditions laid done u/s 479A Sub-clause (5), the Apex Court has given the above ruling. Therefore, I hold that the
above decision will not apply to the facts of this case.
Learned counsel for the appellant relies upon a decision of Kerala High Court reported in Thomman Vs. IInd Addl. Sessions Judge and
Others, . wherein it is held thus:
Where a person when examined as prosecution witness in the Section Court, said that lie did not see the occurrence of murder and that he told the
occurrence under threat and coercion exerted by the police, then whether the reason given such a statement recorded u/s 164 is correct or not the
sessions Judge could not cause a complaint to be tiled u/s 340 of the Code
It is contended by the learned counsel for the appellant that in this case, the witness has narrated the circumstances under which he was forced to
give statement before the Magistrate and as such, in the absence of any enquiry, as to whether the reason, given by the witness for giving statement
u/s 164 Cr.P.C. is true or not. the complaint u/s 340 Cr.P.C. is not sustainable in law. It is seen from the facts of the above case that the learned
Sessions Judge while disposing of the Session case took a view that the appellant has given false evidence knowingly and without any regard for
truth. In this case, the main case in which the appellant has given evidence is still pending and it is not disposed of by the special Court. The Special
Court has to give a finding as to which of the two versions is true only at the time of considering the entire evidence and finally disposing of the
case. As already stated, for making a complaint u/s 195(1 )(b), it is sufficient to make a complaint if the offence appears underlined is mine to have
been committed. The scope of preliminary enquiry envisaged in Section 341 Cr.P.C. is also considered by the Apex Court in a decision reported
in Sachida Nand Singh v. State of Bihar (1998 SCC(Crl) 660). In the above decision, it is held thus:
The scope of the preliminary enquiry envisaged in Section 340(1) of the code is to ascertain whether any offence affecting administration of justice
has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence
should have been committed during the time when the document was in custodian legis
Learned public prosecutor relies upon a judgment of this Court reported in Muthusamy. M. v. Special Police Establishment (1984 L.W(Cri)
194). In the above decision, the Court has held that no preliminary enquiry is necessary and no notice need be given to the accused. The Court has
also relied upon a decision reported in Varadarajulu Naidu Vs. Emperor, . In view of the above decision and in view of the fact that the special
Court has given a complaint while proceeding with the trial of the case, the above decision relied on by the appellant would not help the contention
of the appellant.
The decision reported in Sachida Nand Singh v. State of Bihar (supra) will not strengthen the contention of the appellant. All that is observed
by the Apex Court is that the scope of the preliminary enquiry is to ascertain whether the offence affecting the administration of justice has been
committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. It is held in the above decision that the
bar contained in Section 195(1)(b) (ii) is not applicable to the case where forgery of the document was committed before the document was
produced into Court.
Nextly, learned counsel for the appellant relies upon a decision of Rajasthan High Court reported in Kishori Lal and Another Vs. State of
Rajasthan and Another, In the above decision, it is held thus:
The very object of the inquiry u/s 340 of the Cr.P.C. is to find out if there is a sufficient justification for filing a complaint against one or more
persons who is/are alleged to have committed one or more offences covered by Section 195 of the Cr.P.C. It is, therefore, in the fitness of things
that ""opportunity should be given to the persons against whom there are allegations of having committed the offences, to take part in the
proceedings, and explain their conduct so as to convince the Court, conducting the inquiry that no offence was committed or that the offence
committed is not of such nature as to warrant loading of the complaint against them. I, therefore, find no reason to interfere with the view taken by
the learned Sub-Divisional Magistrate, Jodhpur and the learned Addl. Sessions Judge that the petitioners against whom the inquiry is being
conducted have right to take part in the proceedings
The Rajasthan High Court for coming to such a conclusion relies upon a judgment of the Apex Court reported in Patel Laljibhai Somabhai Vs. The
State of Gujarat, The question that arose for consideration in the Apex Court is as to the applicability of Section 195 Cr.P.C. to cases where the
forged document has been produced as evidence in a judicial proceedings. Relying upon the ruling laid down in the above case, the Rajasthan High
Court has held that conducting an inquiry is essential. The question that arose for consideration in the above case is whether in an inquiry which is
being conducted by the Court u/s 340 Cr.P.C. the persons against whom there are allegations having committed offences covered by Section 195
Cr.P.C. have a right to take part in the enquiry and cross examine the witnesses. The Magistrate seems to have held that non-applicants had a right
to take part in the proceedings. Aggrieved by the said order, the complainant filed revisions, and the Revisional Court has held that non-applicants
had a right to take part in the enquiry, but they have no right to cross-examine the witnesses. The Rajasthan High Court has held that if any party
has a right to take part in the enquiry or trial, then such party can cross examine the witnesses. The above decision will not apply to the facts of this
case, since the Court before making a complaint did not issue any notice to the appellant to show cause as to why he should not be proceeded for
the alleged offence u/s 193 Cr.P.C. As already stated, it is not obligatory on the part of the Court while passing order u/s 340 Cr.P.C. to ask the
accused to appear in Court and examine the witnesses and that conducting preliminary enquiry is within the discretionary powers of the Court. In
the above circumstances, I hold that the above reported decision will not apply to the facts of this case.
Learned counsel for the appellant relies upon a decision of the Orissa High Court reported in Laxminarayan Deepak Ranjan Das Vs. K.K. Jha
and Others, . In the above decision, it is held thus:
Although an enquiry u/s 340 of the Code is a preliminary inquiry, the Court may find it necessary to consider and discuss the entire evidence for the
purpose of coming to a finding whether the alleged offence was committed or not and may then decide where it would be expedient in the interest
of justice to launch prosecution.
The above decision will not apply to this case, since the Special Judge has perused the evidence given by the appellant before the same Court and
also the statement recorded u/s 164 Cr.P.C. The question whether the Court was satisfied that making complaint u/s 340 Cr.P.C. is necessary in
the interest of justice would depend upon the facts of each case. As already stated, two different contradictory statements of appellant were
produced before the Special Court. It cannot be disputed that one of the said statement must be false. The case relates to corruption against a
former Minister and others. Having regard to the gravity of the offence, the trial Court on perusal of the statements, has come to the conclusion that
it is necessary to make complaint u/s 193 IPC and as such, the above reported decision of Orissa High Court cannot be applied to the facts of this
case.
In this case, the Special Judge on a perusal of the contradictory statement of the witness has come to the conclusion that the complaint u/s 193
IPC has to be lodged. It is seen from the wordings of Section 340 (1) Cr.P.C. that the Court can make a complaint for the offence referred to in
Clause (b) of Sub-section (1) of Section 195 upon a complaint or otherwise. Therefore, it is clear that the Court can suo-motu initiate proceedings
and make a complaint. Regarding the above powers of the Court, the Apex Court in K. Karunakaran Vs. T.V. Eachara Warrier and Another, has
held thus:
Whether suo motu, or on an application by a Party u/s 340(1) Cr.P.C., a Court having been already seized of a matter may be tentatively of
opinion that further action against some party or witness may be necessary in the interest of justice. In a proceeding under S-340(1) Cr.P.C. the
reasons recorded in the ""principal case in which a false statement lias been made, have a great bearing and indeed action is taken having regard to
the overall opinion formed by the Court in the earlier proceedings.
The Apex Court has also held in the above decision, that the fact that prima facie case has been made out for laying a complaint does not mean
that the charge has been established against the person beyond reasonable doubt and that it will be thrashed out in the trial where the party will
have an opportunity to produce evidence and controvert each other''s case exhaustively without any reservation. It is, thus, clear from the ruling
had down in the decision referred to above that for making a complaint u/s 340(1) Cr.P.C., conducting preliminary inquiry is not mandatory and
that it is left to the discretion of the Court making the complaint and that no opportunity need be given to the aggrieved person before making the
complaint. Hence, I hold that the fact that preliminary inquiry was not conducted before making the complaint and the fact that the accused was not
given an opportunity to appear and participate in the proceedings will not render the order passed by the Special Court nugatory.
The next question that arises for consideration is whether the Court was satisfied that it is expedient in the interest of justice to make a
complaint. All the decisions are uniform on the point that the Court must come to the conclusion that it is expedient in the interest of justice that the
witness should be prosecuted. It is held in Mohammad Ibrahim Vs. B. Rama Rao, . the decision relied on by the learned counsel for the appellant,
thus:
Under Section 479-A Cr.P.C. not only is it necessary that the Court must form the opinion that the witness had intentionally given false evidence,
but it is further necessary that the Court must come to the conclusion that for the eradication of the evils of perjury and in the interest of justice it is
expedient that the witness should be prosecuted for the offence which appears to have been committed by him.
The above decision was rendered while the old Section 479-A Cr.P.C. 1898 was in force. Regarding the above aspect of the case, the Apex
Court in K.T.M.S. Mohd & another v. Union of India (1992 L.W. (Crl.) 452) has held thus:
This section confers an inherent power on a Court to make a complaint in respect of an offence 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, if that Court is of opinion that it
is expedient in the interest of justice that an enquiry should be made into an offence referred to in Clause (b) of Sub-section (1) of Section 195.
It is, thus, clear from the above judgment of the Apex Court that a prosecution for perjury should be taken only if it is expedient in the interest of
justice. In the above decision, a decision of the Supreme Court i.e., K. Karunakaran v. T.V. Eachara Warrier (supra) is followed.
Learned counsel for the appellant also relies upon a judgment of Kerala High Court reported in Kuriakose v. State of Kerala (1995
Cri.L.J.175l). which also lays down the above proposition of law.
In a decision rendered by Calcutta High Court reported in Amzad Ali Vs. Marfat Ali Biswas and Others, , it is held that an order for lodging a
complaint u/s 340(1) without expressly recording any finding to the effect that it is expedient in the interest of justice that an inquiry should be made
into the offence concerned is vitiated and illegal.
Learned counsel for the appellant relies upon a judgment of this Court reported in Arulraj Advocate v. Judicial Magistrate, Valliyor (1996 2
L.W. (Cri) 719). It is held in the above decision thus:
An inquiry should be conducted and the Court should not launch prosecution unless it also considers that it is expedient in the interest of justice to
launch prosecution.
It is, thus, manifestly clear from the above decisions that before making a complaint, the Court must be satisfied that in the interest of justice it is
expedient to make a complaint for the alleged offence u/s 193 IPC.
Learned Public Prosecutor contended that even if there is no finding that prosecution is necessary in the interest of justice, it does not
necessarily render the order invalid. To substantiate the same, he relies upon a decision, reported in Fakir Upadhya Vs. Padmalav Mohanty, . The
Orissa High Court has held thus:
Although it is well established that the trial Court must consider whether a prosecution is necessary in the interest of justice as required by Section
476, the failure to come to an express finding on the point does not necessarily render the order to file a complaint invalid Where there is no
express finding the appellate Court should either remand the case, or should itself apply its mind to the facts and circumstances, and give a finding.
Where, therefore, without giving its finding, if it merely sets aside the order of the trial Court, it adopts a wrong procedure.
In the above case, the High Court on a consideration of the materials on record has come to the conclusion that it is expedient in the interest of
justice that complaint should be filed. On this aspect, my attention is also drawn to a judgment of the Supreme. Court reported in M.S. Sheriff Vs.
The State of Madras and Others, In the above decision, it is held thus:
The only relevant consideration is whether ""it is expedient in the interests of justice"" that an enquiry should be made and a complaint filed. That
involves a careful balancing of many factors. Where the lower Court has scrutinized the evidence minutely and disclosed ample material on which a
judicial mind could reasonably reach the conclusion that there is a matter which requires, investigation in a criminal Court and that it is expedient in
the interest of justice to have it t acquire into, there is no reason for interfering with the lower Court''s discretion.
In Shri Virindar Kumar Satyawadi Vs. The State of Punjab, the Supreme Court has held that whether action should be taken u/s 195 Cr.P.C. is a
matter primarily for the Court which hears the application and its discretion is not to be lightly interfered with in the appeal, even when that is
competent. The principle laid down in the above decision, will show that the Court must be satisfied that there are prima facie materials to show
that the accused intentionally made false statement and that it is expedient in the interest of justice to make complaint for enquiry.
In the instant case, the trial Court has recorded a finding to the effect that it is expedient in the interest of justice that enquiry should be made
into such offence and that it is also just and necessary to prosecute P.W.18 for giving false evidence. For coming to such an conclusion, the trial
Court relies upon the statement of witness given before the Magistrate and deposition recorded before the Special Court. On a perusal of the said
documents, the Special Court has come to a conclusion that there is contradictory version between the evidence given before the Court and the
statement recorded u/s 164(5) Cr.P.C. and that therefore, the Court is satisfied that the offence referred to in Section 195(1)(b) appears to have
been committed by the witness and that he has given false evidence intentionally before the Court.
Learned counsel for the appellant contends that mere contradictory statement is not a sufficient ground to launch prosecution. In support of the
same, he also relies upon a decision reported in Thomman Vs. IInd Addl. Sessions Judge and Others, , wherein it is held thus:
Where a person when examined as prosecution witness in the Sessions Court, said that he did not see the occurrence of murder and that he told
the Magistrate earlier that he saw the occurrence under threat and coercion exerted by the police, then in absence of any inquiry as to whether the
reason given by the witness appellant giving such a statement recorded u/s 164 is correct or not the Sessions Judge could not cause a complaint to
be filed u/s 340 of the Code
It is seen from the facts of the above case that the learned Sessions Judge while disposing of the case took a view that the appellant has given false
evidence knowingly without any regard for truth and thereupon, he issued notice to the appellant to show cause as to why he should not be
proceeded against for the offence u/s 193 IPC. Such a contingency did not arise in this case, since the case is still pending and it is not disposed of.
It cannot be disputed that while disposing of the Sessions case if the Court comes to a conclusion that a particular witness has given false evidence,
then it becomes necessary for the Court to tide a specific finding on the question as to which of the two versions is false and that without recording
the said finding, the Court cannot straightaway file a complaint u/s 340 Cr.P.C. Therefore, the above decision will not apply to this case.
The Kerala High Court in a case reported in Kuriakose v. State of Kerala (supra) has held that the power u/s 340 of the Code should be used
with care and due consideration and that if the Court is to notice every falsehood that is sworn to by the parties in Courts, there would be very little
for Courts for any serious work other than directing prosecution for perjury. It is also held in the above case that there must be prima facie
satisfaction on the part of the Court that such a proceeding should be initiated in the interest of justice. As already stated, in this case, there are two
contradictory statements given by one and the same witness. Therefore, it can be safely held that one of the said two versions must be false. The
Court before giving a complaint for false evidence should exercise greats care and caution. Hence, the guidelines formulated by the Division Bench
of Kerala High Court in the above decision cannot be urged as ground for holding that the complaint u/s 340 Cr.P.C. cannot be given without
conducting preliminary enquiry as to the correctness of the two versions. The wordings in Section 340 Cr.P.C. will show that it is within the
discretionary powers of the High Court to conduct preliminary enquiry and afford opportunity to the accused to participate in the proceedings. But,
the complaint given by the Court without conducting preliminary enquiry cannot be said to be vitiated on that ground. Even assuming that the
witness has narrated the circumstances under which he was forced to give statement favorable to the prosecution u/s 164 Cr.P.C. the said aspect
can be considered during the trial of the case on this aspect. Learned Public Prosecutor relies upon a decision of Andhra Pradesh High Court
reported in Public Prosecutor Vs. Nagalinga Reddy, In the above decision, it is held thus:
That the accused might have given the first statement under Police pressure as alleged by him and that he had stated the truth in his later statement
have no relevancy in adjudicating the question whether or not an offence u/s 193 IPC has been made out. Such consideration may have a bearing
on the question of sentence but not on the question of guilt.
The right of the accused during the course of the trial to establish that he gave the statement before the Magistrate under coercion and compulsion
would not be denied .
Therefore, it is not incumbent upon the Magistrate before making a complaint to give a finding on the question as to which of the two versions is
false or true.
As already stated, on a perusal, of the two contradictory statements, the trial Court has come to the conclusion that it is expedient in the
interest of justice to make a complaint. The case relates to a Corruption against a former Minister. Having regard to the nature of the offence and
the fact that interest of public is also involved in this case, the trial Court is justified in coming to the conclusion that it is expedient in the interest of
justice to make a complaint. There were sufficient materials before the Court for coming to a conclusion that making a complaint is necessary in the
interest of justice. In the above circumstances, the contention of the appellant that the trial Court has not given a specific finding that it is expedient
in the interest of justice to give a complaint cannot be sustained.
Learned Public Prosecutor pointed out that the order of the Court in making a complaint u/s 340 Cr.P.C. will not ordinarily be interfered with
in the appeal. In support of the same, he relies upon certain decisions. It is needless to give any finding on the said question, since the aggrieved
person is entitled to prefer appeal u/s 341 Cr.P.C. against the order passed u/s 340 Cr.P.C. The appellate Court is entitled to go into the question
whether the Court before making a complaint has followed the procedure laid down in Section 340 Cr.P.C.
It is, thus, seen from the facts of this case that the appellant has given the statement u/s 164 (5) Cr.P.C. alleging that he paid the amount to the
Minister through other person and that he had deviated from such statement while he was examined as a witness in the main case. There are prima
facie materials to show that one of the statements given by the appellant must be false. Hence, The complaint u/s 193 IPC is expedient in the
interest of justice. On a careful reading of the entire judgment of the trial Court and the admitted facts. I have no hesitation in holding that the
Special Court has come to the correct conclusion in making complaint u/s 193 IPC. I hold that no preliminary enquiry as urged by the appellant is
necessary before making a complaint. Therefore, the contentions arised by the appellant are liable to be rejected. I hold that there are no merits in
the appeal.
In the result, the criminal appeal is dismissed. The order of the Special Court is confirmed.