Suresh Babu vs Superintendent of Police

T.R. Ramachandran Nair, J.—The question raised in this Writ Petition is whether pursuant to a preliminary enquiry initiated under S. 340 of the Code of Criminal Procedure, 1973, the court can direct the superior officer of the person involved to take legal action for offence under S. 193 of the Indian Penal Code, instead of proceeding to file a complaint as envisaged under S. 340 Cr.P.C.

The petitioner is a Head Constable of Chengannur Police Station. An accused in S. C.No.565/2006 before the Assistant Sessions Court, Chengannur involved in an offence under S. 55(a) of Abkari Act, was absconding after being enlarged on bail. The case was transferred to the register of Long Pending Cases as L.P.C.No.2/2008. Later on, coercive proceedings were initiated against one of the sureties by issuing a distress warrant for the levy of bond amount by attachment and sale of movable property of the surety as contemplated under S. 421 (1)(a) of Cr.P.C.

The petitioner was authorized to execute the warrant. He filed a report before the Court stating that there are no movable properties in the house of the surety and hence warrant could not be executed. Doubting the veracity of the report, the learned Assistant Sessions Judge directed the concerned Village Officer to conduct a local inspection and prepare an inventory of the movables found in the house of the surety.

The Village Officer in his report gave details of the movable items available in the house. The movables available were valued at Rs. 12,000/-, Thereafter, the court initiated enquiry under S. 340 Cr.P.C. Five witnesses were examined and two documents were marked. It is at this stage the proceedings impugned in this Writ Petition was initiated at the instance of the learned Assistant Sessions Judge. By Ext.Pl addressed to the Superintendent of Police, Alappuzha, the learned Judge, on being satisfied that the report filed by the petitioner is a false one, which amounts to an offence punishable under S. 193 IPC, requested to take stringent legal action against him, for filing the said false report (Ext. C1(a)) in the judicial proceeding in the said case and for willful dereliction of the discharge in his duties. The Superintendent of Police was directed to report the action taken by him, to the court on or before 31.10.2008. By Ext.P3 order, the petitioner was suspended from service by the Superintendent of Police. The Sub Inspector of Police, Chengannur was also directed to register a case under S. 193 IPC against him and report compliance by return.

The petitioner is challenging Exts.P2 and P3 in this Writ Petition. The petitioner contends that both the orders, Exts.P2 and P3 are without jurisdiction and Ext.P2 is beyond the powers of the Criminal Court. It is contended that the Court is not having the power to direct the superior authority to take stringent action against an officer or to direct the said authority to register a crime under S. 193 IPC It is stated that such an action is beyond the scheme provided under S. 340 Cr.P.C. since going by the procedure therein, the Court has to make a complaint thereof in writing and send it to a Magistrate of the First Class having jurisdiction.

Heard the learned counsel for the petitioner Shri R.T. Pradeep and Shri V.G. Govindan Nair, learned Director General of Prosecution for respondents.

For convenience, S. 340(l) Cr.P.C. is extracted below:

Procedure in cases mentioned in S. 195. When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in cl. (b) of sub-s. (1) of S. 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 for 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 give evidence before such Magistrate.

Going by the said provision, the Court has to form 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-s.(l) of S. 195, it can hold a preliminary enquiry, record the finding thereon, make a complaint thereof in writing and send it to a Magistrate of First Class having jurisdiction. Therefore, the question is whether the Court can straightaway direct the superior authority in the police department to register a case involving offence under S. 193 IPC.

The scope and ambit of the relevant provisions under S. 340 Cr.P.C. has been examined by the Apex Court in Pritish Vs. State of Maharashtra and Others, . Their Lordships held that the preliminary enquiry if at all done, as contemplated in the sub-section is not for finding whether any particular person is guilty or not. It is only to decide whether it is expedient in the interest of justice to enquire into the offence which appears to have been committed. If such an opinion is formed by conducting the preliminary enquiry, the Court has to make a complaint in writing and send to the First Class Magistrate concerned. After considering the matter in detail, the Apex Court in the above decision held thus:

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 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. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, 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.

"Inquiry" is defined in S. 2(g) of the Code as "every inquiry, other than a trial, conducted under this Code by a Magistrate or court". It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence, the" said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are all falling within the purview of "Warrant case" (as defined in S. 2(x)) of the Code the Magistrate concerned has to follow the procedure prescribed in Chap. XIX of the Code. In this context we may point out that S. 343 of the Code specifies that the Magistrate to whom the complaint is made under S. 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the Magistrate on receiving the complaint shall proceed under S. 238 to S. 243 of the Code.

The question whether there is a statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating proceedings, was also considered in that decision. It was declared that such is not the legal formality, as at that stage the court is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. It was further held as follows:

Be it noted that the court at the stage envisaged in S. 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff Vs. The State of Madras and Others, a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under S. 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.

More or less a similar issue was considered by a learned Single Judge of this court in Ramakrishnan v. State of Kerala 1998 (1) KLT 68. Therein, the relevant facts are the following: Stolen gold ornaments were recovered, from the owner of a jewellery shop. He filed a petition under S. 451 of the Cr.P.C. and was found to have produced some forged documents to be used as evidence. The learned Magistrate, after making an observation that the circumstances of the case gave room for an investigation into the matter so as to find out whether the petitioner had committed offences punishable under Ss.465 and 411 of IPC, issued a direction to the Divisional Inspector of Police, Crime Branch, CB, CID Thrissur to investigate and report regarding the possible commission of offence under Ss.465 and 411 of IPC by the petitioner under S. 156(3) of Cr.P.C. While examining the legality of the said order, it was held in para 9 as follows:

S. 195(1)(b)(ii) of the Cr.P.C. contemplates that no Court shall take cognizance of any offence described in S. 463 or punishable under S. 471, or S. 476 of the said Code, when such offence is alleged to have committed in respect of a document produced or given in evidence in a proceeding in any court, except on the complaint in writing of that Court, or of some other Court to Which that Court is subordinate. S. 340 of the Cr.P.C. inter alia lays down that when 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 cl. (b) of sub-s. (1) of S. 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 enquiry, if any, as it thinks necessary record a finding to that effect; make a complaint thereof in writing, send it to a Magistrate of the First Class having jurisdiction, take sufficient security for appearance of the accused before such Magistrate or send the accused in custody to such Magistrate if the alleged offence is non-bailable and bind over any person to appear and give evidence before such Magistrate. Thus, if an offence in terms of S. 463 is alleged to have been committed in course of a proceeding in court, the proper procedure is to make a preliminary enquiry as contemplated in S. 340 Cr.P.C. instead of directing a police officer to investigate into it.

In this case, the direction of the Magistrate to investigate an offence under S. 465, therefore, is contrary to law.

S. 340 of Cr.P.C. has to be read together with S. 195(1)(b)(i) of the Cr.P.C. Under S. 195(1)(b)(i), "no Court shall take cognizance of any offence punishable under any of the following sections of the Indian Penal Code, namely, Ss. 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 of some other Court to which that Court is subordinate." S. 340 provides for the procedure in cases mentioned in S. 195. Therefore, S. 193 IPC being an offence coming under the purview of S. 195 (1)(h)(i), only by a complaint in writing of that Court, or of some other Court to which that Court is subordinate, cognizance can be taken. S. 193 IPC provides punishment for false evidence, which is the offence alleged herein. Crime No. 50/2008 under S. 193 IPC has been registered by the Sub Inspector of Police, Chengannur as per the order of the Superintendent of Police, Alappuzha as evident from the counter affidavit filed on behalf of the respondents. It is admitted in para 8 of the counter affidavit that, the order of suspension and the registering of the crime are as per the report of the Court. The provisions contained in S. 195 Cr.P.C. are mandatory in character. There is a bar created by that provision on the filing of a complaint by all and sundry, as held by this court in Kurien v. State of Kerala 1987 (1) KLT 619. S. 340 Cr.P.C. removes the bar by conferring jurisdiction on the court to file complaint. It prescribes the procedure to be followed in the case of complaints by courts in respect of offences mentioned in cl. (b) of S. 195(1). An identical situation, as arising in this case, was considered by a Division Bench of this court in Thankamani v. Inspector General of Police, 2002 (1) CCC 249 (Ker) : 2001 (3) KLT 550. There, while disposing of an application for anticipatory bail, the Sessions Court felt doubt about the genuineness of the affidavit filed in support of the application. The Sessions Court directed the Chief Judicial Magistrate and Inspector General of Police to conduct investigation/enquiry and to take appropriate action. The question whether such a direction could have been issued in the light of the legal position emanating from the respective provisions, was considered in detail by this court. It was held that "it is settled law that provisions of S. 195 is imperative and mandatory in character. The filing of a complaint in respect of the offence detailed for cognizance of offence mentioned is mandatory. Power of the police to investigate offences in respect of a document produced in a Court can start only after lifting the ban under S. 195. That can be done only when the procedure under S. 340 is complied with." It was further held that "however, if the Court of Sessions, in preliminary enquiry, finds, prima facie, that an offence under S. 195(1)((b) is committed, it has to make a complaint in writing and send it to a Magistrate of the First Class having jurisdiction. It cannot direct enquiry/investigation by Chief Judicial Magistrate or Police and in particular by a specific police officer like Inspector General of Police, as done in this case. If prima facie case is made out in a preliminary enquiry, Court of Session could have made a complaint to the Magistrate of the First Class. Court need not express any final opinion as to the guilt of the accused but there should be prima facie material before the Court. But the direction for investigation and for taking appropriate action by the Chief Judicial Magistrate or Inspector General of Police is without jurisdiction." The above dictum squarely applies to the facts of this case.

Therefore, the legal position is clear in that, while exercising the power under S. 340 Cr.P.C. the court cannot direct the Police to register a case against the person involved rather it has to file a complaint by itself and send it over to the Magistrate of First Class having jurisdiction. At that stage of forming an opinion under S. 340-Cr.P.C. the court is not entering any finding as regards the guilt of the person involved. It is conducting only a preliminary enquiry which itself is not required. It can conduct preliminary enquiry or not. There is no question of the person involved being treated as guilty.

During the hearing of the matter, a report was called for from the Asst. Sessions Court, Chengannur as to the final outcome of the enquiry held under S. 34G Cr.P.C. Accordingly, a report dated 07.02.2009 has been placed on record. Therein, after noting that the petitioner was placed under suspension and that a case has been registered against him for an offence punishable under S. 193 IPC and that it is under investigation, the learned Judge reports that with a view to avoid multiplicity of the proceedings against the petitioner herein, further action on the preliminary enquiry under S. 340 Cr.P.C. was dropped and the matter was closed as per order dated 31.01.2009. Thus, now what remains is the case registered against him under S. 193 IPC as directed by the court. At the intermediary stage of a proceedings initiated under S. 340 Cr.P.C. further action itself is dropped, going by the report.

Therefore, the legality of the order, Ext.P2 has to be considered in the light of the express provision under S. 340 Cr.P.C. Going by the scheme of the provision and the principles stated by the Apex Court and this Court, it is clear that the direction issued as Ext.P2 to the Superintendent of Police to take stringent action for the offence under S. 193 IPC is beyond the powers conferred under S. 340 Cr.P.C. The court was not empowered to direct the Superintendent of Police to take legal action against the petitioner without resorting to the mandatory procedure contemplated under S. 340. Therefore, Ext.P2 is beyond the scope of the jurisdiction under S. 340 Cr.P.C. It cannot be sustained at all.

The petitioner is suspended from service only because of the initiation of a criminal proceedings against him. As the parent order, Ext.P2 itself is without jurisdiction, Ext.P3 cannot be sustained.

In the result, the Writ Petition is allowed. Exts.P2 and P3 are quashed. The petitioner will be reinstated in service and consequential orders will be passed within three weeks from the date of receipt of a copy of this judgment. Consequently, in the light of the above findings, the case registered against the petitioner as Crime No. 58/ 2008 under S. 193 IPC will stand quashed.

The Writ Petition is allowed as above. No costs.