Andhra HC (Pre-Telangana)
K. Ram Reddy vs State Of A.P. & Anr. on 24 November, 1997
Equivalent citations: 1998(3)ALD305, 1998(1)ALD(CRI)437, 1998(1)ALT(CRI)486
JUDGMENT
1. All these Criminal Appeals are preferred under sub-section(1) of Section 341 of the Code f Criminal Procedure, 1973 ('the Code' for short) by the accused in Calendar Cases 1 to 18 and 20 to 29 of 1997 on the file of the learned Chief Judicial Magistrate at Karimnagar, taken on file on complaints under Section 340 (1) (b) of the Code made by the Court of District and Sessions Judge at Karimnagar as complainant on the basis of orders made by that Court under Section 340(1) of the Code. After the C.Cs. were taken on file by the learned Chief Judicial Magistrate at Karimnagar, they were all (except C.C.No. 29) transferred to the Court of the Chief Metropolitan Magistrate at Hyderabad and they were re-numbered. For convenience, the Calendar Cases are referred to in this judgment as numbered originally on the file of the learned Chief Judicial Magistrate at Karimnagar. As the questions raised in these appeals are common, they were heard together and they are now being disposed of by this common judgment.
2. The facts in C.C.No. 29 of 1997 are some what different and they are related to what happened in O.P.No. 723 of 1985 on the file of the District Court at Karimnagar, All the other C.Cs. relate to bail applications presented in the Sessions Court at Karimnagar and the accused therein are advocates and additional public prosecutors who appeared in those bail applications, and some of the staff working in the I and II Additional Sessions Courts at Karimnagar, who one way or other dealt with those bail applications. The offences alleged against them in all these C.Cs., except in C.C. Nos. 13 and 29 of 1997, are under Sections 120-B, 193, 466, 468 and 471 of the Indian Penal Code ('I.P.C. for short). In C.C.No. 13 of 1997, the offences alleged against the accused are under Sections 120-B, 193 and 196 I.P.C. while in C.C.No. 29 of 1997 the offences alleged against the accused arc under Sections 193, 196, 197, 199, 200, 205, 209, 403, 419, 420, 468 and 471 r/w 120-B IPC.
3. One aspect that is material is that all these bail applications were presented in the Sessions Court at Karimnagar and they were then made over to the I Additional or II Additional Sessions Courts at Karimnagar, and were finally disposed of by those Courts.
4. The action taken by the Sessions Court under Section 340(1) of the Code in making the orders in question was suo motu and not on applications made to it in that behalf. How the Sessions Court moved itself in that regard for making these orders is stated as follows in the order dated 3-1-1997 in respect of complaint which was taken on file as Calendar Case No.l of 1997, which is common in all the impugned orders relating to C.C. Nos. 1 to 18 and 20 to 28 of 1997:
"On verification of the bail petitions, Court Registers and the Police Case Diaries Etc., he found some of the bail applications which were made over to the Additional Sessions Courts, were tampered with. The section of law of the offence committed by the accused in some bail applications, the Crime Numbers in some and in some the names of the Police Stations were altered and tampered with. He also found in some bail applications an earlier Cr.M.P.No/s which is/are not connected either with the petitioner or the case, is/are mentioned to get their bail applications made over to particular Additional Sessions Court and by mentioning that the earlier application was disposed of by such and such Additional Sessions Court, taking advantage of the well established procedure and the method in making over the bail applications to the Additional Sessions Courts. He also found in some bail applications, suppressing the dismissal of the earlier bail applications by the Prl. Sessions Judge either on merits or as 'not pressed' or 'for default', the same accused move another bail application furnishing a wrong crime number mentioning that an earlier criminal M.P. in that wrongly mentioned crime was made over to such and such Additional Sessions Court. He also found in some bail applications, the Advocate files a bail application falsely mentioning that the offence alleged against the accused is one under Section 307 or 354 IPC and after it was made over to any one of the Additional Sessions Courts, the figures 307 or 354 IPC are altered to 302 or 376 IPC by overwriting on them. After they were made over to the Addl. Sessions Courts, some times the Crime Number, some times the names of Police Stations and some times the offences were altered to.
The District and Sessions Judge held a preliminary enquiry into the tampering of the bail applications and recorded the statements of the concerned staff."
It is also stated that provisions of Section 197 of the Code were not attracted because entering into a criminal conspiracy to tamper the records of a judicial proceeding with a view to secure the release of an accused on bail was no part of official duty and as such no sanction to prosecute the Additional Public Prosecutor was necessary. Reference was also made to the order in Crl. M.P.No.4280/96 dated 28.11.1996 of a Division Bench of this Court cancelling the bail to the accused in the main criminal case, and to the observations therein about the fraud committed by him upon the Court in getting bail from the lower Court. Thereafter, the facts relating to the case are mentioned and it is stated that the District and Sessions Judge came to the conclusion that there were sufficient, valid and justifiable grounds that offences punishable under Sections 120-B, 193, 466, 468, and 471 IPC referred to in Clause (b) of subsection (1) of Section 195 of the Code appeared to have been committed by the accused mentioned in relation to the proceedings and in respect of the documents produced and given in evidence in a proceeding in the Court" and that "he is satisfied that it is expedient in the interests of justice to launch Prosecution against the above individuals". It is then ordered that a complaint be filed before the Chief Judicial Magistrate, Karimnagar under Section 340 (l)(b) of the Code against the accused for the offences mentioned. Pursuant to that order, complaint was filed under Section 340 (1)(b) of the Code, and it was taken on file as C.C.No. 1/1997. The other C.Cs. were also based on complaints filed on similar orders of the learned District and Sessions Judge at Karimnagar. The details relating to Calendar Cases, out of which the present criminal appeals arise, are as follows :
DETAILS OF CRIMINAL APPEALS Calendar Case No. CJM, Karim- Nagar CMM, Hydera-
bad Date of order u/s340
(l)and of complt.
Date of Offences Accused No. in C.C. Crl.
Appeal No. Name of the accused (1) (2) (3) (4) (5) (6) (7) 1/1997 1/1997 7-1-1997 On or about A5 275/97 K.Rami Reddy 21-5-96 A3 307/97 M.S.Isaque Baig Al 337/97 M.Hanumantha Rao (A2, Ch. Shiva Kumar Raju, Advocate and A4, Malta Sanjeev, petitioner in Cr.M.P.No. 1086/96 and accused in Cr. No. 97/96 did not prefer appeal) 2/1997 4/1997 10-1-1997 Between 7-9-96 A2 311/97 V. Manohar Rao 11-9-96 Al 338/97 E.Madhusudhan Rao (A3 to AS, petitioners in Crl. M.P.No. 2039/96 and accused in Cr.No.352/96 did not prefer appeal) 3/1997 3/1997 3/1997 Between 23-8-96 and A4 276/97 K. Kami Roddy 29-8-96 A2 A1 308/97 339/97 M.S.Isaque Baig K.Ashok Kumar (A3, Gourishetti Girijapathi, Petitioner in Crl. M.P.No. 1887/96 and accused in Cr.No.323/96 did not prefer appeal) 4/1997 5/1997 10-1-1997 On or about 3-8-96 A2 A4 A3 A1 A5 310/97 313/97 340/97 341/97 608/97 V. Manohar Rao K. Gopala Swamy P.Gopala Kishan M.Hanumantha Rao .Shankara Chary (A6, Kanaparthi Narastaha Chary, petitionCrl. M.P.No. 1724/96 and accused in Cr.No. 125/96 did not prefer appeal ) 5/1997 6/1997 10-1-1997 On or about 7-2-96 A2 A1 A4 312/97 342/197 343/97 Syed Abu Taher Ch. Shiva Kumar Raju P.Gopala Kishan (A3, Gopagani Shankar, Petitioner in Crl. M.P.No. 306 /1996 and accused in Cr. No. 133/95 did not prefer appeal) 6/1997 /1997 10-1-1997 On or about 14-6-1996 A4 A2 A1 277/97 309/97 344/97 K. Kami Reddy M.S.Isaque Baig Sana Chandra Mohan (A3, Dandugula Chandraiah, petitioner in Crl. M.P. No. 1281/96 and accused in Cr. No. 173/84 did not preferl. M.P.No. 12 r appeal)81/96 7/1997 7/1997 10-1-1997 On or about 2-9-95 A2 A1 314/97 345/97 K. Raja Ram D. Kannaiah (A3, Mohd. Basheeruddin, petitioner in Crl.M.P.No. 1419/95 and accused in Cr.No.66/95 did not prefer appeal) 8/1997 8/1997 10-1-1997 On or about 27-7-96 A2 A9 A1 302/97 346/97 609/97 V. Manohar Rao P.Gopala Kishan B.Raja Reddy (A3 to A8, petitioners in Crl.M.P.No. 1633/96 and accused in Cr.No. 52/96 did not prefer appeals) 9/1997 9/1997 6-2-1997 On or about 6-6-96 A2 A3 A1 347/97 348/97 579/97 E.Madhusudhan Rao V.Manohar Rao B.P.Raji Reddy (A4 and A5, petitioners in Crl. M.P.No.121 1/96 and accused in Cr.No.41/96 did not prefer appeal) 10/1997 10/1997 6-2-1997 On or about 6-7-96 A1 A2 A3 349/97 350/97 351/97 E.Madhusudhan V. ManoharRao P.Gopala Kishan (A4, Alwala Anjaiah, petitioner in Crl. M.P.No. 1456/96 and accused in Cr. No. 42 1/95 did not prefer appeal) 11/1997 11/1997 6-2-1997 On or about A1 A2 352/97 353/97 E.Madhusudhan Rao V.Manohar Rao (Accused in Cr.No. 41/91 and petitioner in Crl. M.P.No. 1945/96 viz., Mandadi Devender was not made a party in complaint since the advocate got dismissed Crl. M.P.) 12/1997 12/1997 6-2-1997 On or about 27-8-96 A1 A2 A3 354/97 355/97 356/97 E.Madhusudhan Rao V.Manohar Rao P.Gopala Kishan (A4 to A9, petitioners in Crl. M.P.No. 1922/96 and accused in Cr. No. 135/96 did not prefer appeal) 13/1997 13/1997 6-2-1997 On or about 7-8-96 A3 A1 & A2 385/97 394/97 K.Rami Reddy Sana Chandra Mohau &. D. Kannaiah (A4 and A5, petitioners in Crl.M.P.No. 1714/96 and accused in Cr.No. 12/95 did not prefer appeal) 14/1997 14/1997 6-2-1997 On or about 10-4-96 A3 A2 357/97 358/97 K.Rami Reddy M.S.Isaque Baig (Al, Ch. Shiva Kumar Raju, Advocate, and A4, Thirumalla Mallikarjun, petitioner in Crl. M.P.No. 807/1996 and accused in Crl.No. 105/96 did not prefer appeals) 15/1997 15/1997 6-2-1997 On or about 28-6-96 A2 A3 A1 359/97 360/97 395/97 M.S.Isaque Baig K.Rami Reddy Sana Chandra Mohan (A4, Dandugula Chandraiah, petitioner in Crl.M.P.No. 1386/96 and accused in Cr.No.38/90 did not prefer appeal) 16/1997 16/1997 6-2-1997 On or about 26-7-96 A1 A3 A4 A2 361/97 362/97 386/97 196/97 E.Madhusudhan Rao M.S. Isaque Baig K.RamiReddy K.Ashok Kumar (A5 to A7, petitioners in Crl.M.P.No.1609/96 and accused in Cr.No. 161/96 did not prefer appeal) 17/1997 17/1997 6-2-1997 On or about 17-7-96 A1 A2 A3 363/97 364/97 365/97 E. Madhusudhan Rao V.ManoharRao P.Gopala Kishan (A4, Misa Ravinder, petitioner in Crl.M.P.No. 1536/96 and accused in Cr.No. 259/96 did not prefer appeal) 18/1997 18/1997 6-2-1997 On or about 10-7-96 A3 A2 366/97 367/97 P.Gopala Kishan V.ManoharRao (Al (Ch. Shiva Kumar Raju, Advocate) and A4 and A5, petitioners in Crl.M.P.No. 1488/96 and accused in Cr.No.40/96 did not prefer appeals) 20/1997 19/1997 15-3-1997 On or about 12-8-96 A3 A2 A1 440/97 537/97 567/97 P.Gopala Kishan V.ManoharRao M.Hanumantha Rao (A4 to All, petitioners in Crl.M.P.No.1781/96 and accused in Cr.No.42/96 did not prefer appeals) 21/1997 20/1997 15-3-1997 On or about 4-9-96 A2 A1 538/97 568/97 V.ManoharRao M.Hanumantha Rao (A3 to A9, petitioners in Crl.M.P.No.2040/96 and accused in Cr.No.46/96 did not prefer appeals) 22/1997 21/1997 15-3-1997 On or about 24-4-96 a2 A1 564/97 569/97 Syed Abu Taher M.Hanumantha Rao (A3, Sana Lasmamma, petitioner in Crl.M.P.No.894/96 and accused in Cr. No.23/96 did not prefer appeal) 23/1997 22/1997 15-3-1997 On or about 8-8-96 A3 A2 A1 441/97 539/97 570/97 P.Gopala Kishan V.Manohar Rao M.Hanumantha Rao (A4, petitioner in Crl. M.P.No, 1745/96 and accused in Cr.No. 47/96 did not prefer appeals) 24/1997 22/1997 15-3-1997 On or about 28-8-96 A3 A2 A1 442/97 540/97 571/97 P.Gopala Kishan V.Manohar Rao M.Hanumantha Rao (A4 to A15, petitioners in Crl.M.P.No. 1934/96 and accused in Cr.No.59/96 did not prefer appeals) 25/1997 24/1997 15-3-1997 On or about 30-8-96 A3 A2 A1 397/97 541/97 572/97 K.Rami Reddy M.S. lsaque Baig M.Hanumantha Rao (A4 to A6, petitioners in Crl.M.P.No.1973/96 and accused in Cr.No.79/96 did not prefer appeal) 26/1997 25/1997 15-3-1997 On or about 10-4-96 A3 A2 A1 398/97 542/97 573/97 K.Rami Reddy.
M.S.lsaque Baig M.Hanumantha Rao (A4, petitioner in Crl.M.P.No. 809/96 and accused in Cr.No.28/96 did not prefer appeal) 27/1997 26/1997 15-3-1997 On or about 16-8-96 A3 A2 A1 443/97 543/97 574/97 P.Gopala Kishan V.Manohar Rao M.Hanumantha Rao (A4, petitioner in Crl.M.P.No.1808/96 and accused in Cr.No. 521 1996 did not prefer appeal) 28/1997 27/1997 15-3-1997 On or about 9-5-96 A3 A2 A1 444/97 544/97 575/97 P.Gopala Kishan Syed Abu Taher M.Hanumantha Rao (A4, petitioner in Crl.M.P.No. 979/96 and accused in Cr.No.27 1/1995 did not prefer appeal) (1) (2) (3) (4) (5) (6) (7) 29/1997 not transferred 24-4-1997 On or about 20-3-1989 A2 576/97 M.Hanumantha Rao (Al, B, Prabhakar, did not file appeal) Criminal Appeal Nos. 337, 341 and 567 to 576 of 1997 are preferred by M Hanumantha Rao, advocate, Karimnagar; Criminal Appeal Nos. 338, 347, 349, 352, 354, 361 and 363 of 1997 are preferred by E Madhusudhan Rao, advocate, Karimnagar; Criminal Appeal Nos. 339 and 396 of 1997 are preferred by K. Ashok Kumar, advocate, Karimnagar; Criminal Appeal Nos. 344 and 395 of 1997 arc preferred by Sana Chandra Mohan, advocate, Karimnagar; Criminal Appeal No. 345 of 1997 is preferred by D.Kannaiah, advocate, Karimnagar; Criminal Appeal No. 394 of 1997 is preferred by Sana Chandra Mohan and D.Kannaiah, advocates, Karimnagar; Criminal Appeal No. 342 of 1997 is preferred by Ch. Shiva Kumar Raju, advocate, Karimnagar; Criminal Appeal Nos. 579 and 609 of 1997 are preferred by B.Raji Reddy, advocate, Karimnagar; Criminal Appeal Nos. 340, 343, 346, 351, 356, 365, 366, 440 to 444 of 1997 are preferred by P. Gopala Kishan, Additional Public Prosecutor in the I Additional Sessions Court, Karimnagar; Criminal Appeal Nos. 275 to 277, 357, 360, 385, 386, 397 and 398 of 1997 are preferred by K.Rami Reddy, Additional Public Prosecutor in II Additional Sessions Court at Karimnagar; Criminal Appeal Nos. 312, 544 and 564 of 1997 are preferred by Syed Abu Taher, L.D.C., Criminal Section, I Additional Sessions Court, Karimnagar; Criminal Appeal Nos. 302, 310, 311, 348, 350, 353, 355, 364, 367, 537 to 540 and 543 of 1997 are preferred by V.Manohar Rao, L.D.C., Criminal Section, I Additional Sessions Court at Karimnagar; Criminal Appeal Nos. 307 to 309, 358, 359, 362, 541 and 542 of 1997 are preferred by M.S.Isaque Baig, Translator, II Additional Sessions Court, Karimnagar; Criminal Appeal No. 314 of 1997 is preferred by K.Raja Ram, Criminal Bench Clerk in II Additional Sessions Court at Karimnagar and Criminal Appeal Nos. 313 of 1997 and 608 of 1997 are preferred by K.Gopala Swamy and K. Shankara Chary respectively accused in the main case (Cr.No.125/96).
5. Mr. C.Padmanabha Reddy, who led the learned Counsel appearing for the appellants, contends firstly that the Court of Principal Sessions Judge had no jurisdiction to file the complaint and that only the Courts of Additional Sessions Judges or the High Court when the bail petition was moved before it, could have filed the complaint; secondly that the principles of natural justice were violated in making the orders under sub-section (1) of Section 340 of the Code because no notice of enquiry or opportunity was given to the appellants before the order were made and thirdly that in cases where the Additional Public Prosecutors figure as accused, sanction of the Government under Section 197 of the Code was necessary as they are public servants, and, therefore, cognizance of offences alleged against them is bad because there was no such sanction of the Government. In making these submission, reliance was placed on the preliminary report submitted by the learned District and Sessions Judge at Karimnagar to this Court on 30-10-1996. It is contended that the learned District and Sessions Judge had prejudiced mind and, therefore, there was no proper enquiry under Section 340(1) of the Code. It is further contended that in the said preliminary report, it was stated that the offences alleged in these cases occurred in the Courts of the I and II Additional Sessions Judges at Karimnagar and that, therefore, the Presiding Officers of those courts were the competent persons to file the complaints and not the Presiding Officer of the District and Sessions Court at Karimnagar, and as no enquiry was conducted by either of the Additional Sessions Judges, the complaints in question are vitiated. The grounds which from the basis for this submission are stated as follows in Criminal Appeal No. 307 of 1997, arising out of C.C.No. 1 of 1997:
"That, the learned District and Sessions Judge, Karimnagar having sent preliminary report to Hon'ble High Court of Judicature of A.P., Hyderabad on 30-10-96 against the appellant and others has prejudiced mind as such there was no proper enquiry under Section 340 Cr.P.C.
That, as per the preliminary report and alleged enquiry under Sec.340 Cr.P.C. made by the learned District and Sessions Judge Karimnagar, the offences are stated to have been taken place in the Courts of the I Add. Sessions Judge and II Addl. Sessions Judge Karimnagar. The Presiding Officers of the said courts are the competent persons to file the complaint and by the date of enquiry under Section 340 Cr.P.C the Presiding Officer for the said two courts have been posted and functioning. Therefore, the proceedings under Section 340 Cr. P.C. and the filing of complaint by the learned District and Sessions Judge Karimnagar are vitiated, in the absence of an order or an enquiry being conducted by the said two courts."
6. Though the report of the learned District and Sessions Judge at Karimnagar dated 30-10-1996 is a confidential one, as it was specifically referred to in the ground, and the appellants are aware of it and a copy of it is available in the records and bias is alleged against the learned District and Sessions Judge, Karimnagar, it is necessary to notice the said report. The relevant portions of it are as follows:
"4. My discreet enquiries revealed that the concerned Section Clerks, the I and II Additional District Judges, their Additional Public Prosecutors and the Advocates all have joined hands in tampering with these bail applications and the Registers.
5. It is necessary to state here how the bail applications are registered, how they are made over to the Additional District Courts, and how the relevant entries of these applications are made in the concerned Registers.
6. Bail Applications were not being accompanied by any copies of the First Information Report or Remand Report, to verify whether the allegations made in the petitions and the Crime Numbers mentioned therein are correctly mentioned or not. Only on the basis of the Crime Number and the offence furnished therein, bail applications were being registered.
7. Any bail application must be presented before the Superintendent, District Court, Karimnagar. He receives it, puts his initials and the date stamp of the District Court on every page and transmits it to the Inward Section.
8. The Inward Section Clerk enters the name/s of the petitioner/s, name of the Advocate, Crime Number and name of the Police Station in the 12-Register (Inward Register) and sends it to the Translator, Criminal Section of the District Court.
9. Then the Translator of the District Court or his Assistant checks the application, writes a brief note on the bail application and the Translator places the same before the District Judge, Karimnagar for orders.
10. After obtaining orders from the District Judge, the Translator of the District Court allots Cr.M.P.Nos. to the bail applications and enters them in the Cr.M.P. Register (6 A Register). He also enters the orders passed by the District Judge on each application in the Diary Register (11-Register). If they are made over to any of the Additional District Courts, the said order would also be mentioned in both the Registers.
11. If the bail application is ordered to be made over to any of the Additional District Courts, the Translator sends it to the concerned Court along with the Cr.M.P. Register. The Criminal Section Clerk in the I-Additional District Court and the Translator in the II-Additional District Court receive bail applications after putting their initials in the Cr.M.P.Register, in token of having received these application. They place the applications before the concerned Additional District Judges for orders, after making a note on the application "Received from Sessions Court". Then the Additional District Judges order notice to the Additional Public Prosecutors of their Courts. The Criminal Clerk of the I-Addl. District Court and Translator of the II-Addl. District Court enter the particulars of these applications in their respective Cr.M.P. Registers (6-A Register) as well as the Diaries (11-Register) of their courts.
12. The Steno-Typists of both the Additional District Courts take down the orders, in short hand, as and when the Additional District Judges dictate them and transcribe them on the bail applications. The Typist in the II-Addl. District Court types the fair orders, while in the I-Addl. District Court the Steno-Typist does it.
13. Whenever any bail application is made over to any Additional District Court in any Crime Number, all subsequent bail applications filed in the same Crime number either for the same accused or for the co-accused will also be made over to that particular Additional district Court only.
14. My enquiries revealed that, keeping in mind the above procedure and the method in making over the bail applications to the Additional Sessions Courts, some of the Advocates have resorted to certain types of malpractices to get their bail applications made over to any of the Additional District Courts of their choice.
15. The Modus Operandi is - the Advocate files a bail application falsely mentioning that the offence alleged against the accused is one under Section 307 I.P.C. After it was made over to any of the Additional District Courts, the figures '307' are altered to 302 in the bail application/s wherever the figures '307' occur. In case of offence u/s. 376 IPC, they file bail applications initially mentioning that the offence committed in one u/s. 354 IPC. After it was made over to any of the Addl. District Courts, the figures '354' are altered to '376' in the application/s.
16. The second mode of getting their bail applications made over to the Addl. District Courts is - they falsely give a number of an earlier bail application, which was made over to the disposed of by any of the Addl. District Judges.
17. In some cases when bail applications are dismissed on merits or as not pressed or for default by the District Judge, the same accused, suppressing the earlier bail application, move another bail application furnishing a wrong Crime Number, mentioning that an earlier Cr.M.P. in that wrongly mentioned Crime, was made over to such and such Addl. District Court. Then such application will be made over to such court. .,
18. After the application was made over to the Addl. District Courts, some times the Crime Number and some times the name of the Police Station, and some times the offences are altered.
19. By adopting these malpractices they used to get their bail applications made over to any of the Addl. District Courts of their choice, for reasons best known to them. The earlier bail application referred to by them in the bail application will have nothing to do with the present application. The staff of the Principal District Court will not have any opportunity to check the earlier application, as the earlier bail application mentioned by them would be in that Court only.
20. The concerned Advocates, Clerks of the Addl. District Courts, Additional Public Prosecutors joined hands in this racket and the role of the two Addl. District Judges cannot be ruled out in this murky affair.
21. The malpractices that were resorted to are apparent on the face of the records, and they are detailed below."
Thereafter, the learned District and Sessions Judge, Karimnagar dealt with specific cases.
7. What is apparent from this report dated 30-10-1996 is that certain devious methods were being adopted in the Sessions Court at Karimnagar by certain advocates with the connivance of the staff of the I and II Additional Sessions Courts and the Additional Public Prosecutors attached to those courts, and that the two Additional Sessions Judges at the relevant time were also parties aware of those devious methods employed mostly in matters relating to bails - C.C.No.29 of 1997 relates to a land acquisition O.P. These devious methods polluted the streams of justice and necessitated urgent correctives and action in the interests of administration of justice. The occurrences were not isolated instances totally unconnected with one another- there was a pattern in the modus operandi adopted, with minor variations. I am of the view that this background is very relevant in considering the contentions raised in these matters.
8. Another aspect to be kept in view in considering these matters is the object and intendment of the bar imposed under Section 195(1)(b) of the Code on Courts in taking cognizance of offences specified therein except on the complaint in writing of the court concerned as specified therein, or of some other court to which that court is subordinate. Sub-section (1)(b)(i) of Section 195 of the Code corresponds to sub-section (1)(b) of Section 195 of the Criminal Procedure Code, 1898 (the old Code' for short); sub-section (1)(b)(ii) of Section 195 of the Code corresponds ,to sub-section (1)(c) of Section 195 of the old Code; and sub-section (1)(b)(iii) of Section 195 of the Code corresponds to sub-section (4) of Section 195 of the old Code. Section 340(1), (3) and (4) of the Code correspond to Section 476(1) of the old Code and Section 340(2) of the Code corresponds to Section 476-A of the old Code. In Patel Laljibhai v. State of Gujarat, , a three Judges Bench of the Supreme Court, though directly concerned in that case only with sub-section (l)(c) of Section 195 of the old Code, dealt with the purpose and object of Section 195 (1)(b) and (c) of the old Code. After referring to their setting under the heading "conditions requisite for initiation of proceedings" in Division-B of Chapter XV of the old Code, the Supreme Court observed as follows:
"The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court's control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of the court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. .... The offences about which the court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party."
The Supreme Court further observed as follows:
"As a general rule, the courts consider it expedient in the interest of justice to start prosecutions as contemplated by S.476 only if there is a reasonable foundation for the charge and there is a reasonable likelihood of conviction. The requirement of a finding as to the expediency is understandable in case of an offence alleged to have been committed either in or in relation to a proceeding in that Court in case of offences specified in CI.(b) because of the close nexus between the offence and the proceeding."
This was reiterated in Santokh Singh v. Izhar Hussain . The court explained how the discretion under Section 476(1) of the old Code has to be exercised as follows:
"The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party."
In Surjit Singh v. Balbir Singh (1996)3 SCC 533, another three Judges Bench of the Supreme Court, after referring to Patel Laljibhai's case (supra) and the passages extracted above, observed as follows:
"The object thereby is to protect persons from needless harassment by prosecution for private vendetta; to preserve, purity of the judicial process and unsullied administration of justice; to prevent the parties of the temptation to pre-empt the proceedings pending in a court and to pressurise and desist parties from proceedings with the case. Equally when the act complained of relates to an offence, i.e., contempt of lawful authority of public servant, or against public justice, or for offences relating to documents produced to given in evidence, public justice demands absolute bar of private prosecution and that power be given to the court to lay complaint under Section 340 of the Code as per the procedure prescribed therein. In Patel Laljibhai case (supra) the main controversy was as to when the accused had become a party to the proceeding. However, after the Code came into force in 1974 replacing the earlier Code of 1898 it was omitted and so it is no longer of any relevance."
9. Yet another aspect to be kept in view is that the occurrences giving rise to the present cases, except C.C.No.29 of 1997, relate to criminal proceedings, i.e., bail petitions. The acts alleged were intended to benefit the accused seeking bail abusing the processes of courts and interfering with the perverting the administration of justice; those involved were closely connected with the justice delivery system. No private persons were affected to move this court under Section 340(1) of the Code to wreak vengeance against any one.
First contention:-
10. Mr. C. Padmanabha Reddy contends that the court of Principal Sessions Judge had no jurisdiction under Section 340 of the Code because that Court did not deal with the bail petitions in question and only made them over to the I Additional Sessions Judge or the II Additional Sessions Judge, who in fact finally dealt with them and disposed them of. He submits that the act of making over the bail petitions was not a judicial act and that it was only an administrative act, and, therefore, the alleged offences could not be said to have been committed in or in relation to a proceeding in the Court of the Sessions Judge or in respect of a document produced or given in evidence in a proceeding in that court. Thus, the learned Counsel questions the very jurisdiction of the Court of the Sessions Judge and questions its competence to initiate action under Section 340(1) of the Code and to pass the orders impugned in these appeals. He submits that die Courts of the I and II Additional Sessions Judges who actually disposed of the bail petitions or the High Court only were the courts which could suo motu or otherwise make the orders and the complaints contemplated under Section 340{1) of the Code.
11. In answer, the learned Public Prosecutor submits that the I and II Additional Sessions Judges' Courts are not different from the Court of Session at Karimnagar and relies on Section 9 of the Code. He further submits that the proceedings were initiated in the Court of Session by presentation of the bail petitions, which were thereafter made over to the I or II Additional Sessions Judge and, therefore, it cannot be said that the Principal Sessions Court lost jurisdiction to initiate action under Section 340(1) of the Code. He also submits that one should not lose sight of the fact that the allegation was that the various occurrences took place with the connivance of the judicial officers working at the relevant time as presiding officers of the I and II Additional Sessions Courts.
12. The question raised by Mr. C. Padmanabha Reddy turns on the meaning of 'Court of Session'. That is defined in Section 9 of the Code. The relevant portions of Section 9 are as follows:
"9. Court of Session:- (1) The State Government shall establish a Court of session for every sessions division.
(2) Every Court of Session shall be presided over by a Judge, to be appointed by the High Court.
(3) The High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a Court of Session.
(6) The Court of Session shall ordinarily hold its sitting at such place or places as the High Court may, by notification specify; but if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the Sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein."
This Section makes it clear that there is only one Court of Session in a Sessions division, and that the Additional Sessions Judges and Assistant Sessions Judges exercise the jurisdiction of that court. Section 10 of the Code further clarifies this position. It reads as follows:
"10. Subordination of Assistant Sessions Judges;- (1) All Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction.
(2) The Sessions Judge may from time to time, make rules consistent with this Code, as to the distribution of business among such Assistant Sessions Judges.
(3) The Sessions Judge may also make provisions for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application."
As long back as 1888, in Queen Empress v. K.Kunjan Menon, 1891 (1) M.L.J. 413 (Judgment dated 20th September, 1888), a Full Bench of five Judges of the Madras High Court, dealing with similar provisions in the Criminal Procedure Code, 1882 held as follows:
"There can be only one Sessions Court for each Sessions Division, but there may be more than one Judge of such Sessions Court. If an Additional Sessions Judge is appointed, he can only try such cases as the Local Government directs, or as the Sessions Judge makes over to him."
Then there is a decision of a Division Bench of Calcutta High Court in Superintendent and Remembrancer of Legal Affairs v. Ijjatulla AIR. 1931 Calcutta 190 dealing with Section 9 of the old Code. It was held in that case as follows:
"Under Section 9, Criminal P.C., the Local Government is empowered to establish a Court of Session for every Sessions division, and to appoint a Judge of such Court and Additional Sessions Judges and Assistant Sessions Judges to, exercise jurisdiction in such Court, and to direct at what place or places the court of Session shall sit.
Thus there is only one Court of Session in each Sessional division, sitting at different places, and manned by a number of Judges. The Court is the Court of Session. It is accurate to refer to the 'court of the Sessions Judge', and the 'Court of the Additional Sessions Judge' and so on except colloquially. Just as in the High Court, we do not refer to the constituent Courts as the Court of any particular Judge either permenant or 'additional'."
The same view was reiterated by a Full Bench (three Judges) of Patna High Court in Kamleshwar Singh v. Dharamdeo Singh, , after referring to Ijjatulla's case AIR 1931 Calcutta 190. Chaudhuri, J., who was a member of that Full Bench, held as follows:
"Section 9 of the Code (old) provides for the establishment of a Court of Session for every Sessions division and it is obligatory upon the State Government to appoint 'a Judge' of such Court. Sub-section (3) of Section 9 provides that the State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts. The words 'one or more such Courts' in this sub-section have reference to subsection (2) which lays down that the State Government may, by general or special order in the Official Gazette, direct at what place or places the Court of Session shall ordinarily hold its sitting. When a Court of Session holds its sitting at several places the Judges presiding over those sittings function only as constituent parts of the Court of Session which is one and the same... An Assistant Sessions Judge, therefore, who exercises jurisdictions in the Court of Session has no separate or independent entity in the sense that the Court over which he presides while exercising such jurisdiction does not constitute an independent Court of Session within the meaning of sub-section (1) of Section 9 of the Code."
Sahai, J., another member of the Full Bench, held as follows:
"Four broad propositions appear to me to follow clearly from the relevant provisions of the Code of Criminal Procedure (hereinafter to be referred to as the Code). The first proposition is that there can be only one Court of Session in a Sessions division and there can be only one Judge of that Court or, in other words there can be only one Sessions Judge in a Sessions division... The second proposition, therefore, is that a court presided over by an Additional or an Assistant Sessions Judge is also a Court of Session. Since there cannot be more than one Court of Session in one Sessions division, it has to be held that a Court presided over by an Additional or an Assistant Sessions Judge is a part or constituent of one and the same Court of Session which is headed by the Sessions Judge.
13. The third proposition is that the Sessions Judge has complete jurisdiction, by virtue of his position as Judge of the Court of Session, to receive, hear and dispose of all matters such as applications, appeals or cases which are required by law to be submitted to, or filed in, the Court of Session. An Additional or an Assistant Sessions Judge, however, is not competent, by virtue of his office, to receive, hear or dispose of any matter submitted to, or filed in, the Court of Session in which he exercises jurisdiction. He gets jurisdiction to deal with such a matter only when it is placed before him either under a general or special order of the State Government or a general or special order of the Sessions Judge of the division. Several sections of the Code may be referred to in support of this proposition.
The fourth proposition is that an Additional or an Assistant Session Judge exercises full powers of a Court of Session subject only to such limitations or restrictions as are expressly placed upon his powers by law in respect of cases which are legally placed before him for disposal. An Additional Sessions Judge has, in cases within his session, the same powers as a Sessions Judge."
This view gains support form a three Judges Bench of the Supreme Court in Gokaraju Rangaraju v. State of A.P. , wherein it is held as follows:
"A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session."
From this it follows that the Courts of Additional Sessions Judges are not separate and independent courts i.e., separate from the Court of Session of the division.
14. The significance of comparison to a High Court by the Calcutta High Court in Ijjatulla's case, AIR 1931 Calcutta 190 cannot be missed. In Varadarajulu Naidu v. Emperor, AIR 1937 Madras 716, one of the questions referred to the Division Bench of the Madras High Court was "Whether the Officiating Chief Justice could pass an order under Section 476, Criminal P.C.(old Code), in a case where no orders were passed under Section 476, Criminal P.C., either by the trial Judge or his successor or the appellate Bench that decided the Original Side appeal against the judgment and decree" of the trial Judge. The Division Bench answered as follows:
"The order was in terms passed under Section 476, Criminal P.C., and the real question is whether the Officiating Chief Justice had no jurisdiction to pass the order. The complaint required by Section 195, Criminal P.C., is the complaint of the Court in which the documents were given in evidence and not of the trial Judge, and as pointed out in 49 Bom 710 (Bai Kasturbai v. Vanmalidas), when a suit is tried by a Judge of the High Court, the term 'Court' occurring in the section must be taken to mean 'the High Court'. There is nothing to prevent any Judge of the High Court from dealing with the matter though as a matter of convenience this would seldom be done, and the matter was in this case placed before the Officiating as the trial Judge was absent at the time.... it is apparent from the order itself that it was passed by the officiating Chief Justice in the exercise of ordinary original jurisdiction."
In D.Satra v. M.Biyani, 1974 Criminal Law Journal 28 (Gauhati High Court), Baharul Islam, J., as the learned Judge then was, considered the meaning of the word 'Court' in Section 476 and explained the position of different Benches of the High Court in that context as follows, answering the contention that only the learned Chief Justice of the High Court before whom the alleged perjury was committed could hear the application made under Section 476:
"Shri Choudhuri submits that the use of the first word 'Court' followed by the expressions as 'that Court' and 'such Court' shows that it is that Court namely, in the instant case, the Court of the Chief Justice, that may make a complaint and not this Court. It is difficult to accept the contention of learned counsel. A High Court may have several Benches and any one Bench may hear a case in which a perjury is committed... In my opinion, in the context of this case, the 'Court' means the High Court and the application under Section 476 may be heard by any Bench of the High Court and the alleged perjury is committed in the High Court."
Similarly, in the case of Sessions Court of a Division, it is one Court i.e. Court of Session even though there may be Courts of Additional Sessions Judges. Therefore, I am inclined to agree with the submission of the learned Public Prosecutor that the I and II Additional Sessions Courts are not different from the Court of Sessions at Karimnagar for the purposes of Section 340(1) of the Code, and that the Principal Sessions Judge has the jurisdiction under that provision even though he did not finally dispose of the bail petitions, and only received it and made over to the Courts of the I or II Additional Sessions Judge. This is particularly so on the facts of the present case because it is alleged that the presiding officers of the I and II Additional Sessions Court also had a part to play and connived at in the happening.
15. The question can be viewed from another angle also. There is so gain saying the fact that the bail petitions give rise to proceedings in Court, which are judicial in nature. Kamalapati Trivedi v. State of West Bengal, , and State of Maharashtra v. Bannu and Shankar, , are the authorities for this' proposition. In the latter case, it has been held as follows:
"While considering a bail application of a person accused of an offence under investigation of the police, the Magistrate acts as a 'Court', the proceedings in the bail application being judicial proceedings. This position has been clarified recently by this Court in Kamalapati Trivedi v. State of West Bengal, . It was held by this Court (per majority) that while deciding the question of bail, the Magistrate cannot but be regarded as a court acting judicially, notwithstanding the fact that an offence of the accused is still under investigation by the police or has progressed to the stage of an inquiry or trial by the Magistrate."
Now, bail proceedings are initiated by presentation of bail petitions. Therefore, it follows that when bail petitions are presented before the Court of Principal Sessions Judge and are received and placed before the Principal Sessions Judge either to be dealt with by himself or for making over to one or other of the Additional Sessions Courts, it cannot but be that the Principal Sessions Court has jurisdiction under Section 340(1) of the Code in respect of any offence referred to therein because the judicial proceeding initiated by the reception of the bail petition would be the same even though made over to the Additional Sessions Courts. In Bannu's case, , the Supreme Court went further and has observed that "the bail proceedings, before the Court of the Magistrate, Shri Deshpande could not be viewed in isolation but had to be taken as a stage in and part of the entire judicial process the second stage of which commenced on presentation of the challan by the police in the Court of the Magistrate for an enquiry or trial of the accused person to whom the bail had been granted". The Supreme Court referred to the decisions of Lahore, Calcutta and Madras High Courts, arid observed as follows:
"In Behari Lal v. Sheikh Abdul Qadir Hamyari, AIR 1940 Lahore 292, it was held by the High Court of Lahore that if a case or proceeding in which the offence is committed has been before various Courts, all the Courts have the jurisdiction to complain, but normally, the Court which finally tried the case would be the proper Court to make a complaint. The Calcutta High Court in Emperor v. Bhiku Hossein ILR 39 Cal. 1041, held that if a false complaint made to a Magistrate is transferred under Section 192 of the Code of Criminal Procedure to another Magistrate, the latter who had seisin of the case, can make a complaint.
In Maromma v. Emperor, AIR 1933 Mad. 125, it was held by the High Court of Madras that a false statement made during police investigation before a Magistrate and recorded by him under Section 164, Cr.P.C., regarding an offence of murder, which his triable only by a Sessions Court, must be held to be 'in relation to' the trial in that Court and a complaint can be made for the prosecution of the persons giving that false statement for an offence under Section 193, Penal Code, by the Sessions Court. Similarly, in Athi Ambalagaran v. Emperor, AIR 1932 Mad. 494, a Division Bench (consisting of Waller & Pandalai, JJ.) held that a statement made by a witness at the preliminary enquiry leading up to the trial in the Sessions Court is to be regarded as having been 'in relation to' the subsequent proceedings in the Sessions Court. Consequently, the Sessions Judge has jurisdiction to direct the prosecution of the person making that false statement even if he finds that the statement made before the Committal Court of the Magistrate, was false.
The rationale behind these decisions is that if the two proceedings, one in which the offence is committed and the other, the final proceedings, in the same or a transferee Court are, in substance, different stages of the same integrated judicial process, the offence can be said to have been committed 'in relation to' the proceedings before the Court to whom the case was subsequently transferred or which finally tried die case. By the same taken, the offences under Sections 205 and 471, Penal Code, in the present case can be viewed as having been committed 'in relation to' the proceedings before the Court of Shri Karandikar to whom the case was transferred for disposal. Thus considered, Shri Karandikar was competent to make a complaint in respect of the aforesaid offences, after conducting a preliminary inquiry under Section 476, Cr.P.C."
In Sundar Lal v. Emperor, AIR 1922 Allahabad 233(3), Stuart, J., held as
follows:
"If a Court is of opinion that there is ground for enquiry into any offence referred to in Section 195 of the Code of Criminal Procedure committed before it in the course of a judicial proceeding, even if the case has passed out of the hands of that Court and been decided by another Court it cannot be held that the first Court's power under Section 476 of the Criminal Procedure Code (old Code) came to an end.
The circumstance that a case has passed out of the hands of a Court, in so far as an effective order regarding its disposal is concerned, docs not deprive the Court of it jurisdiction under Section 476 of the Code of Criminal Procedure according to the view" taken in this Court."
Jackson, J., took the same view in Mattayya v. Emperor, AIR 1930 Madras 192, He held that if a case is transferred, any Court seized of the case could complain. It is not necessary to farther dilate on the matter because these are all clear authorities for the proposition that the Court in which the proceedings have been initiated does not lose jurisdiction under Section 340(1) of the Code merely because the proceedings have been transferred to another Court and that Court finally has dealt with the matter. Thus, even assuming that Principal Sessions Court of a Division is separate and distinct from the Additional Sessions Courts of that Division, the Principal Sessions Court continues to have jurisdiction under Section 340(1) of the Code in respect of the bail petitions received by it even though subsequently they were made over to the Additional Sessions Courts.
16. In the result, I do not find any merit in the first contention of Mr. C.Padmanabha Reddy.
Second contention:-
17. Mr. C.Padmanabha Reddy and the other learned Counsel appearing for the appellants submit that sub-section (1) of Section 340 of the Code contemplates a preliminary enquiry and that though the expression 'may' is used in that provision, that is only honorific and that preliminary enquiry should be invariably held before a finding is recorded and a complaint is made as contemplated respectively by Clauses (a) and (b) of that sub-section. They also submit that principles of natural justice require that notice and opportunity should be given to the proposed accused. Mr. C.Padmanabha Reddy submits that when a complaint is made under sub-section (1) of Section 340 of the Code, the Magistrate is bound to take cognizance because under sub-section (1) of Section 343 of the Code "the Magistrate to whom a complaint is made under Section 340 or Section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report", and on a police report a Magistrate is bound to take cognizance. He relies on the decision of a five Judges Bench of the Supreme Court in Aggarwal, Sub-Divisional Magistrate, Delhi v. Mst. Ram Kali, AIR 1968 SC 1. The Supreme Court observed in that case as follows:
"Under Section 190(1)(b) of the Code of Criminal Procedure (old Code), the Magistrate is bound to take cognizance of any cognizable offence brought to his notice. The words 'may take cognizance' in the context means 'must take cognizance'. He has no discretion in the matter, otherwise that section will be violative of Article 14".
There is also the decision of three Judges Bench of the Supreme Court in Rashmi Kumar v. Mahesh Kumar Bhada , wherein it is observed:
"If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognizance would be taken by the Court to proceed further in the matter. Thus it is not the province of the Court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not."
The learned Counsel contends that in the case of a police report under Section 190(1)(b) of the Code, there would be police investigation preceding the filing of the report or charge-sheet. The learned Counsel submits that the corresponding safeguard in the case of a complaint under Section 340(1) is the preliminary enquiry by the Court, which would necessarily mean notice to the proposed accused and opportunity to them before making the order and complaint under that provision. He submits, relying on the observations of Kumarayya, J., in Javvaji Uthanna's case, , that "prosecuting a person for an offence under the Indian Penal Code is certainly a grave matter and however much it may be called for in the interests of justice the person who is to face the prosecution should in all fairness be given an opportunity to vindicate himself if he can prior to the commencement of the prosecution". He also relies on the observations of Ratnavel Pandian, J., in K.T.M.S.Mohd v. Union of Indian , that "it is incumbent that the power given by this Section 340(1) of the Code should be used with utmost care and after due consideration". He also relies on the decision of a learned single Judge of this Court in Audi Narrayanamma v. State, , wherein Section 476 of the old Code was considered, and it was held that "the proceeding under Section 476 Criminal P.C. being penal in nature, it is not only desirable and reasonable, but just and proper and in accordance with the principles of natural justice to afford a reasonable opportunity by issuing a show cause notice to the accused party to establish by adducing evidence oral and documentary that it was not expedient in the interests of justice to prosecute him".
18. The learned Public Prosecutor submits that the language of sub-section (1) of Section 340 of the Code when it employs the expression 'may' does not qualify the preliminary enquiry but it qualifies the conclusion that may be arrived at by the Court "after such preliminary enquiry, if any, as it thinks necessary". He submits that the language employed is unambiguous and clearly enjoins that whether or not a preliminary enquiry should be held is left to the discretion of the Court. He also submits that there is no question of necessarily giving any opportunity to the accused at the stage of making an order and complaint contemplated under Section 340(1) of the Code. He submits that during an investigation the police are not expected to give notice to the suspects and an opportunity of hearing to them. They may take statements from them under Section 162 of the Code as a part of investigation. He submits that under Section 340(1) of the Code, whether or not a preliminary enquiry should be held, is left to the discretion of the Court which no doubt should be exercised reasonably.
19. Before dealing with these rival contentions, it is necessary to have a clear look at the provision itself. Section 340 of the Code reads as follows:
"340. Procedure in cases mentioned in Section 195: (1). 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 subsection (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 give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of subsection (4) of Section 195.
(3) A complaint made under this section 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.
(4) In this section, 'Court' has the same meaning as in Section 195."
Section 341 of the Code, which provides for appeal, is also relevant in interpreting Section 340 of the Code because it confers power to make a complaint to the appellate Court also. It reads as follows:
"341. Appeal. (1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of Section 340. or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under Section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section, and subject to any such order, an order under Section 340, shall be final, and shall not be subject to revision."
These sections cannot be read in isolation but along with Section 195 of the Code because the very heading of Section 340 of the Code refers to Section 195. The relevant portion is Section 195(1)(b). It is as follows:
"195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance-
(b)(i) of any offence punishable under any of the following sections of the Indian penal Code (45 of 1860), 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, or
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause(ii), except on the complains in writing of that Court, or of some other Court to which that Court is subordinate."
Sections 193 to 196 of the I.P.C deal with offences relating to false evidence. Sections 199 and 200 of the I.P.C. deal with offences relating to false declarations. Sections 205 to 211 deal with other offences against the public justice for false personation, fraud, dishonesty and where false claims and false charges are involved. All these provisions deal with various acts, etc. effecting the administration of justice. The group of Sections referred to in sub-clause (ii) of Section 195(l)(b) of the Code relate to offences relating to forged documents produced or given in evidence in a proceeding in Court; sub-clause (iii) deals with criminal conspiracy in the case of offences referred to in sub-clauses (i) and (ii). The selection of these offences is obviously to save the administration of justice from corrupt and venal attempts to pervert justice to achieve unmerited gain or advantage. As stated in Patel Laljibhai's case, , "these offences have been selected for the Court's control because of their direct impact on the judicial process" and the direct victim is the judicial process or administration of public justice itself. The Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party.
20. A reading of Section 340 of the Code discloses, as held in K.Karunakaran v. T.V.Eachara Warner, , that two pre-conditions are necessary for laying a complaint: (i) the material before the Court should make out a prima facie case for a complaint; and (ii) expediency in the interests of justice to permit the prosecution into any of the offences referred to in Section 195(1)(b) of the Code. In Karunakaran's case AIR 1978 SC 290, an application was filed under Section 340(1) of the Code before the High Court of Kerala by one Mr. Warner for taking action for offence under Section 193, I.P.C. for filing a false affidavit in a Habeas Corpus petition earlier instituted by him. That High Court, after hearing that application, came to the conclusion that a complaint should be laid against Mr. Karunakaran for offence under Section 193, I.P.C. before the appropriate Court on the basis of its conclusion that a prima facie case had been made out under Section 193, I.P.C. and that it is expedient in the interest of justice to lay complaint. That conclusion was questioned before the Supreme Court by Mr. Karunakaran. While holding that the said conclusion was not perverse warranting interference under Article 136 of the Constitution, the Supreme Court observed as follows:
"At an enquiry held by the Court under Section 340 (1), Cr. P.C. irrespective of the result of the main case, the only question is whether a prime facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action.
The party may choose to place all its materials before the Court at that stage, but if it does not, it will not be estopped form doing so later in the trial, in case prosecution is sanctioned by the Court."
The Supreme Court further observed that "an enquiry, when made, under Section 340(1), Cr.P.C. is really in the nature of affording a locus paenitentiae to a person and if at that stage the Court chooses to take action, it does not mean that he will not have full and adequate opportunity in due course of the process of justice to establish his innocence." In M.S. Sheriff v. State of Madras , a constitution Bench of the Supreme Court has considered when discretion exercised by the lower Court to make a complaint under Section 476-B, Cr.P.C.(old Code) cannot be interfered with. The lower Court here was a Division Bench of the Madras High Court and the appeal preferred to the Supreme Court was under Section 476-B of the old Code. The Supreme Court has observed that the only relevant consideration is whether 'it is expedient in the interests of justice' that an enquiry should be made and a complaint filed, and that involves a careful balancing of many factors. The Supreme Court further observed as follows:
"The High Court has scrutinised the evidence minutely and has disclosed sample material on which a judicial mind could reasonably reach the conclusion that there is matter here which requires investigation in a criminal Court and that it is expedient in the interests of justice to have it enquired into. We have not examined the evidence for ourselves and we express no opinion on the merits of the respective cases but after a careful reading of the judgment of the High Court and the report of the District Judge we can find no reason for interfering with the High Court discretion on that score.
We do not intend to say more than this about the merits as we are anxious not to prejudge or prejudice the case of either side. The teamed Judges of the High Court have also very rightly observed in their order under Section 476 that they were not expressing any opinion on the guilt or innocence of the appellants."
21. Viewed in the light of the observations of the Supreme Court in Karunakaran's case, , and MS Sheriffs case, , it has to be held that when suo motu action is sought to be taken by a Court under Section 340(1) of the Code, firstly, it should form a clear opinion that it is expedient in the interests of justice that enquiry should be made into any offence referred to therein; and secondly, it should appear to the Court that such offence has been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in that Court - such appearance obviously has to be only a prima facie one, because the enquiry has to be by the Criminal Court, if and after the complaint is made. However, a finding has to be given as regards expediency in the interests of justice and as regards the prima facie case made out of the offence. For arriving at that finding, the Court may conduct such preliminary enquiry as it thinks necessary, I am of the view that it is not incumbent on the Court to conduct preliminary enquiry. That is obvious from the expression "if any" used in Section 340(1) of the Code, the relevant portion of which is "...such Court may, after such preliminary inquiry, if any, as it thinks necessary....". Such enquiry, if any, as thought necessary by the Court, has necessarily to be preliminary, because it is only after making the complaint that the real enquiry at the trial will be mads. Such preliminary enquiry by the Court is for satisfying itself that there is reasonable foundation for the offence alleged, as observed by the Supreme Court in Chajoo Ram v. Radhey Shyam AIR 1971 SC 1367, But when the material on record is sufficient to arrive at the prima facie view as regards the commission of the offence and to form an opinion as regards the expediency in the interests of justice, it will be for the Court concerned to consider whether, even so an enquiry has to be held. There cannot be any more guidance than this because each case will depend on its own facts. In Santokh Singh's case, , which was already referred to earlier, the Supreme Court made this clear by expressing that "the Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency". In Patel Laljibhai's case, , also, the Supreme Court made this clear when it observed as follows:
"The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that Court, the commission of which has a reasonably close nexus with the proceedings in that Court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party." .
This was referred with approval in a Surjit Singh's case, . This question need not detain me further because in the present cases the impugned orders were made by the Sessions Court after holding an enquiry it thought necessary.
22. The knotty question raised by the learned Counsel for the appellants is whether it is incumbent on the Court while considering the matter under Section 340(1) of the Code to give notice to the proposed accused and opportunity to them before making the complaint, and whether the absence of notice and opportunity would vitiate the finding recorded and the complaint made by the Court under Section 340(1) of the Code. Buckland, J., was very emphatic in Ganti v. Harcourt AIR 1931 Calcutta 436 and convincingly, though strongly, opined as follows:
"There is the further question whether the person, against whom the application is made (under Section 476 of the old Code), should be given an opportunity of being heard upon the preliminary enquiry; but this, in my judgment, is generally to be deprecated. It might result, in some measure, in converting the enquiry into an enquiry not dissimilar from that which it would be the duty of a Magistrate to make and it might involve the person against whom the order is sought in himself giving evidence on oath by affidavit or otherwise which would be contrary to the spirit of the criminal law in this country. I do not therefore consider that it is necessary that notice should be given to the person against whom the order is sought on an application such as this. He will, moreover, have every opportunity of being heard by the Magistrate upon whom the duty will be cast of proceeding according to law if a complaint is made, "
In Varadarajulu Naidu's case, AIR 1937 Madras 716, a Division Bench of the Madras High Court held as follows:
"The Court may, under Section 476, Criminal P.C.(old Code), make the complaint on the application made to it or otherwise, and it need not hold a preliminary enquiry. Notice to the person proceeded against is not essential...."
Mr. Padmanabha Reddy complains that there was no discussion in this case; but there need not be discussion for stating the obvious. In Sundararami Reddi v. Venkatasubba Naidu, (1958) II An.
W.R. 480, Jaganmohan Reddy. J., (as he then was) considered at length what Section 476 (of the old Code) required to be done before an order and complaint thereunder were made by a Court, after referring to the majority view of a Full Bench of the Madras High Court in King Emperorv. Karri Venkanna Patrudu, (1917) 31. M.L.J. 440. The learned Judge referred to the following view expressed by Oldfield, J., (who was with the majority in that case) with reference to Section 476 of the old Code:
"The opinion has to be supplemented by 'any enquiry which may be necessary'; but that means only 'necessary' in the reasonable and judicial exercise of the* Court's discretion. It has infact been held that no preliminary enquiry is necessary, even when there is no evidence on record contradicting the case, in respect of which sanction on a charge under Section 211 of the Indian Penal Code has been granted,... and that the enquiry need not be held in the presence of the accused and need not include cross-examination by him of the witness... And there is nothing in the wording of the section inconsistent with this conclusion. For it postulates, not any decision by the Court that a case has been established even prima facie, but merely its adoption of an opinion that there is ground for enquiry. No doubt that must be the opinion, as distinguished from its mere surmise or assumption; and we are accordingly entitled to satisfy ourselves that it has not acted on no evidence or perversely."
Jaganmohan Reddy, J., then held as follows:
"The Court gets jurisdiction to enquire and complain only where the offence appears to have been committed in or in relation to any proceedings in that Court, and this may be done either on the application made to it in this behalf or otherwise, that is, suo motu and that too after such preliminary enquiry, if any, as it thinks necessary. What the Court has, therefore, to decide under this section is whether an offence of the kind contemplated under the section appears to have been committed and in the interests of justice it should further enquire into it. It is not always obligatory on the part of the Court to make a preliminary enquiry; but that would depend upon the facts and circumstances of each case. If a prima facie case has already been made out even in the course of the proceedings before it or where there is sufficient documentary evidence on the record it may be that no preliminary enquiry is necessary nor is it necessary to record oral evidence and it will be perfectly competent for the Court to direct a complaint to be filed without taking any such evidence."
The learned Counsel for the appellants rely on an unreported order dated 17-11-1962 of Gopal Rao Ekbofe, J., in Crl M.P. No. 1144 of 1962 and batch (In re Chippada Ramanna and others). That was a case under Section 479-A of the old Code and the contention advanced was that before the complaint was made no notice was given to the witnesses, who were accused of giving false evidence, calling upon them to show-cause why they should not be prosecuted. The learned Judge upheld that contention on the language of Section 479-A (1) relying on the judgment of the Supreme Court in Dr. B.K.Pal Chaudhry v. State of Assam, . The relevant portion of Section 479-A is as follows:
"479-A(1) .... when any .... Criminal Court is of opinion that any person appearing before it as a witness had intentionally given false evidence .... record a finding to that effect stating its reasons therefor and may, if it so thinks fit, after giving the witness an opportunity of being heard, make a complaint thereof..."
Similar requirement of giving proposed accused opportunity of being heard is not there in Section 340(1) of the Code. In Dr. B.K.Pal Chaudhry's case, AIR 1960 SC 133, also, the Supreme Court considered the language of sub-section (5) of Section 479-A of the old Code, which specifically provided as follows:
"but no such order shall be made, without giving the person affected thereby an opportunity of being heard."
In Jawaji Uthanna's , also, a Division Bench of this Court considered the scope of sub-section (1) of Section 479-A of the old Code, which was considered by Gopal Rao Ekbote, J., in Chippada Ramanna's case. Mr. Padmanabha Reddy strongly relies on the decision of a learned single Judge of this Court in Audi Narrayanamma's case, There the contention raised on behalf of the accused was that the complaint filed by the Court under Section 476(1) of the old Code should be quashed because the Court did not give a finding as contemplated by that Section about the expediency in the interests of justice to enquire into the offence alleged in the complaint; and the learned Public Prosecutor contended that Section 476 of the old Code did not contemplate the Court giving any such specific finding in every case. After referring to the earlier decisions of the Madras High Court, binding on this Court, the learned Judge held following those decisions, that it was incumbent on the Court to form an opinion that it was expedient in the interests of justice to prosecute the person and record a finding to that effect, and that the failure to conform with such requirement warranted the quashing of the complaint as the defect was not curable. Incidentally, the learned Judge also observed as follows on opportunity:
"The proceeding under Section 476 Criminal P.C. (old Code) being penal in nature, it is not only desirable and reasonable, but just and proper and in accordance with the principles of natural justice to afford a reasonable opportunity by issuing a show cause notice to the accused party to establish by adducing evidence oral and documentary that it was not expedient in the interests of justice to prosecute him."
But that question did not arise in that case and, therefore, I have to hold that those observations are only Obiter. They run counter to the earlier Division Bench decision of the Madras High Court in Varadarajulu 'Naidu's case, AIR 1937 Madras 716, and of Jaganmohan Reddy, J., in Sundararami Reddi's case, (1958) H An. W.R. 480. There is also the recent decision of this Court of T.Ranga Rao, J., in Dr. Gayathri Devi v. State of A.P., 1997 (1) ALD (Crl.) 801 (AP). One of the contentions raised before the learned Judge was that no opportunity was given to the petitioner before making complaint under Section 340 of the Code. The learned Judge negatived that contention and held: "It cannot be said that it is a condition precedent to issue show cause notice before filing the charge-sheet against a person under Section 340 Cr.P.C. It all depends on facts and circumstances of each case." In M.Miithuswamy v. Special Police Establishment 1985 Crl. L.J. 420, a learned single Judge of the Madras High Court, relying on Varadarajulu Naidu's case, AIR 1937 Madras 716, and disagreeing with the view expressed by Kondaiah, J., in Audi Narayanamma's case, , held that no preliminary enquiry was necessary and that no notice need be given to the accused. In Geej Raj v. State of Rajasthan, 1982 Crl. L.J. 2079, N.M. Kasliwal, J., (as the learned Judge then was) of the Rajasthan High Court, held as follows:
"The language of the aforesaid section (Section 340 of the Code) makes it clear that it is discretionary for such Court to make a preliminary inquiry and it would depend upon the facts and circumstances of each case whether any preliminary inquiry is to be held or not before making an order... If no such preliminary inquiry is held to be necessary, the Court should record a finding to that effect as to why such preliminary inquiry was not necessary."
In Pushpadevi v. M.L. Wadhavan , the Supreme Court observed as follows:
"We feel fully persuaded to hold that this is a fit case in which the detenu, his wife (petitioner herein), Ashok Jain and all other persons responsible for the fabrication of false evidence should be prosecuted for the offences committed by them. Nevertheless we wish to defer the passing of final orders on the application made under Section 340 of the Code of Criminal Procedure, 1973 by the Union of India at this stage because of the fact that the Central Bureau of Investigation is said to be engaged in making a thorough investigation of the matter so that suitable action could be taken against all the perpetrators of the fraudulent acts and the offences. As such the launching of any prosecution against the detenu and his set of people at this stage forthwith may lead to a premature closure of the investigation resulting in the Central Bureau of Investigation being unable to unearth the full extent of the conspiracy. Such a situation should not come to pass because the manipulations of the detenu and his agents on the one hand and the connivance of staff in the President's Secretariat on the other cannot be treated as innocuous features or mere coincidence and cannot, therefore, be taken lightly or viewed leniently. On the contrary, they are matters which have to be taken serious note of and dealt with a high degree of vigilance, care and concern. Consequently, while making known our opinion of the matter for action being taken under Section 340 of the Code of Criminal Procedure we defer the passing of final orders on the application under Section 340 till the investigation by the Central Bureau of Investigations is completed. The respondents are permitted to move the Court for final orders in accordance with our directions."
From this it is obvious that the Supreme Court did not find it necessary to conduct any preliminary enquiry and give notice to the persons responsible for fabrication of the false evidence before holding that it was a fit case for prosecution.
23. In the light of these authorities, I am of the., view that it is not necessary under Section 340(1} of the Code to give notice and opportunity to the proposed accused before recording a finding and making a complaint thereunder, even if the Court thought fit to conduct a preliminary enquiry.
24. It has also to be noticed that Section 341 of the Code specifically provides for notice to the parties concerned before the superior Court directs the withdrawal of the complaint, or, as the case may be, making of the complaint. There is no such express provision in Section 340 of the Code, obviously because preliminary enquiry provided for under Section 340(1) itself, is left to the discretion of the Court depending on the facts and circumstances and the material available in each case. From this it is obvious that giving notice to the proposed accused and hearing them is not made a condition precedent by the Parliament in enacting the Code. It has to be kept in view that Section 340 of the Code provides for the procedure to be followed for making a complaint and that the actual enquiry before the Criminal Court Will commence thereafter. Considering that the discretion is given to Court and a right of appeal is also available to the affected party, no real prejudice will be caused, if in a given case a Court takes the view on the basis of the facts and circumstances and the material available on record may be after a preliminary enquiry, if thought necessary that a finding should be recorded as required and a complaint should be made.
25. The complaints impugned in these appeals, therefore, cannot be held to be bad on the ground that no notice and opportunity were given to the appellants herein.
Third Contention :-
26. The learned Counsel appearing for the Additional Public Prosecutors, Mr. Y.Rama Rao and Mr. S.Satyam Reddy led by Mr. C.Padmcmabha Reddy, contend that the complaints against the Additional Public Prosecutors attached to the' 1st Additional Sessions Court and II Additional Sessions Court are not maintainable because Public Prosecutors are public servants and previous sanction of the State Government was not taken. They contend that the Public Prosecutors represent only on the basis of instructions and the C.D. file in discharge of their official duties. In the order impugned in the appeals preferred by the Additional Public Prosecutors, it is stated that the provisions of Section 197 of the Code are not attracted to the cases as "entering into a criminal conspiracy to tamper with records of a judicial proceeding to secure the release of the petitioner on bail is not part of official duty and "as such no sanction to prosecute the Additional Public Prosecutor is necessary".
27. But the embargo under sub-section (1) of Section 197 of the Code is against taking cognizance of the offences alleged against the Additional Public Prosecutors; that will be after the making of a complaint and sending it to the Magistrate having jurisdiction, under sub-section (1) of Section 340 of the Code. Under Section 340(1) of the Code there is no such embargo for making a complaint. The present appeals arc preferred under Section 341 of the Code, whereunder an appeal can be preferred only against the action taken under Section 340 (1) of the Code and making a complaint. That does not involve taking cognizance of the offences. The decision of the Supreme Court in Bakhshish Singh v. Gurmej Kaur, AIR 1988 SC 257 is instructive. The contention raised was that cognizance was taken without prior sanction given under Section 196/197 of the Code. In that case, the petitioner before the Supreme Court was the accused (a police official heading a police party). He sought stay of proceedings in Sessions case against him on the ground that cognizance was taken without the sanction under Section 196/197 of the Code.
The complaint against the petitioner was that he directed his police party to arrest one Ajit Singh and one Manjit Singh and tie them with ropes and put them in a track for the purpose of throwing them in a river, pursuant to which the said two persons were beaten and they became unconscious and one of them died. It was also alleged that false evidence was fabricated. That was all denied by the petitioner/accused, who claimed that he acted in the discharge of his official duties. The case was committed to the Court of Session by the Magistrate. The Supreme Court observed as follows:
"There are rival versions involved in this case. The question was whether without the sanction under Section 197 of the Cr.P.C. the proceedings could go on. It is quite apparent that as a result of the alleged search and raid, which was conducted by the petitioner in discharge of his official duties certain injuries, which are described as grievous injuries had been inflicted on the complainant and one of the alleged offenders had died. In this case, admittedly, the petitioner is a Government servant. Admittedly, there was no sanction under Section 197 of the Cr.P.C., had been taken. The trial in this case is one of the offences mentioned under Section 196 Cr.P.C. The contention of the petitioner was that under Section 196 Cr.P.C. the cognizance of the offence could not be taken nor the trial proceeded without the sanction of the appropriate authorities. The learned Additional Sessions Judge, Kapurthala after consideration of the facts and circumstances of the case in view of the observations of this Court in Pukhraj v. State of Rajasthan, , that unless cognizance is taken and the facts and in the circumstances and the nature of the allegations involved in this case are gone into the question whether the raiding party exceeded its limits or power while acting in the official duties cannot be determined. The learned Judge observed after gathering the materials and some evidence, it would be possible to determine whether the petitioner while acting in the discharge of his duties as a police officer had exceeded the limit of his official capacity in inflicting grievous injuries on die accused and causing death to the other accused."
The Supreme Court, disposing of the petition for staying further proceeding, held as follows:
"It is true that Section 196 states that no congnizance can be taken and even after cognizance having been taken if facts come to light that the acts complained of were done in the discharge of the official duties then the trial may have to be stayed unless sanction is obtained. But at the same time it has to be emphasised that criminal trials should not be stayed in all cases at the preliminary stage because that will cause great damage to the evidence."
The Supreme Court upheld the action taken by the Additional Sessions Judge and refused to stay the trial. In B.Saha v.M.S. Kochar, , a three Judges bench of the Supreme Court has held that the question of sanction under Section 197 of the Code can be raised and considered at any stage of the proceeding and that in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration. The Supreme Court reiterated the following principle laid by Chandrashekhar Aiyer, J., in Matajog Dobeyv. H.C. Bhari, :
In the matter of grant of sanction under Section 197, the offence alleged to have been committed must have something to do, or must be related in some manner, with the discharge of official duty... There must be a reasonable connection between the act and discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable but not a pretended or fanciful claim, that he did it in the course of the performance of his duty."
In the complaint under Section 340(1)(b) of the Code also the Court of Session has stated that the provisions of Section 197 of the Code requiring "prior sanction from the Government were not attracted to the case as entering into a criminal conspiracy to tamper with records of a judicial proceeding to secure the release of accused on bail was not part of official duty. But in R. Balakrishna Pillai v. State of Kerala, , the Supreme Court clarified the position in cases where conspiracy is alleged, as follows:
"The question whether the acts complained of had a direct nexus or relation with the discharge of official duties by the public servant concerned would depend on the facts of each case. There can be no general proposition that whenever there is a charge of criminal conspiracy levelled against a public servant in or out of office the bar of Section 197(1} of the Code would have no application. Such a view would render Section 197(1) of the Code specious. Therefore, the question would have to be examined in the facts of each case."
After referring to B.Saha's case (supra), the Supreme Court observed:
"While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. To put it briefly, it is the quality of the act that is important, and if it falls within the scope of the aforequoted words, the protection of Section 197 will have to be extended to the public servant concerned. This decision, therefore, points out what approach the Court should adopt while construing Section 197(1) of the Code and its application to the facts of the case on hand."
In view of the fact that this objection has to be raised before the criminal Court taking cognizance of the offences alleged against the Additional Public Prosecutors, it is not necessary for me to decide on this contention. It will be open to the appellants concerned to raise this objection before the criminal court taking cognizance of the offence alleged against them.
28. The contention that as the learned Sessions Judge gave a preliminary report he had prejudiced mind, is not pressed. Rightly so, because that report was given to the High Court on the administrative side placing the factual picture before the High Court. From that it cannot be deduced that he had a prejudiced mind.
29. The preliminary enquiry conducted under Section 340(1) of the Code need not necessarily be a judicial one; it can be a fact finding enquiry investigative in nature, In the circumstances of the present cases, the preliminary enquiry conducted by the learned Sessions Judge in these cases cannot be questioned. The discretion exercised by the Sessions Judge regarding the expediency in making the various complaints in the interests of justice also cannot be faulted on the facts and circumstances obtaining. These arc all cases where the facts speak by themselves. I have gone through the material in each of the cases and I am satisfied that prima facie cases are made out in respect of the offences complained against the appellants, and it cannot be said that no reasonable basis for the complaint is made out in each of these cases.
30. It is not necessary to minutely examine the facts mentioned in the orders and complaints in each of the cases and express views because the enquiry into the offences is still to be conducted and it would not be proper to pre-judge or prejudice the cases, as observed by the Supreme Court in M.S. Sheriffs case, AIR 1954 SC 397. The learned Counsel also did not take me through the facts of each of these cases.
The facts mentioned in Calendar Case Nos.1 and 4 of 1997 illustrate the methods employed in all these matters. In Calendar Case No. 1 of 1997 (in respect of which Criminal Appeal Nos. 275, 307 and 337 of 1997 have been preferred) the facts are stated as follows :
"Firstly, Sri S.Chandra Mohan, Advocate filed an application for bail on behalf of the accused No. 4 Sanjeev on 22-4-1996 in Cr.M.P.No. 884/96 and it was dismissed as not pressed on 30-4-1996 by the complainant.
Again Al (Appellant in Cr1.A. No. 337/97) filed another bail application on 7-5-1996 in Cr.M.P. No. 961/96 on behalf of the same Sanjeev falsely mentioning the Cr.No. as 91/96 of Karimnagar, II Town u/s. 307 IPC and it was also dismissed by the complaint as not pressed on 9-5-1996.
Again A2 (did not prefer appeal) filed another bail application in Cr.M.P. No. 992/96 on 13-5-1996 on behalf of the same Sanjeev (A4 falsely mentioning the Cr.No. as 96/96 of Karimnagar, II Town u/s. 307 IPC and it was also dismissed as no representation on 14-5-1996 by the complainant.
On or about 21-5-1996 all the accused and the I-Addl. Sessions Judge who was in charge of the II-Addl. Sessions Judge entered into criminal conspiracy to do all sorts of illegal acts in order to get their bail application made over to any of the Addl. Sessions Courts with a view to get favourable orders.
In pursuance of their criminal conspiracy suppressing the earlier three bail applications, which were dismissed by the complainant earlier, A1 once again filed another bail application on behalf of A4 in Cr.M.P. No. 1086/96 on 21-5-1996 mentioning the Cr.No. as 91/96 falsely, instead of Cr.No. 97/96 u/s. 302. IPC, knowing that the said information is false and the earlier three bail application were dismissed, giving the impression that the bail application is filed for the first time.
A4, the petitioner in Cr.M.P. No. 1086/96 is not an accused either in Cr.No.91/96 or Cr.No.96/96 of Karimnagar, II-Town Police Station.
A1 and A2 who are advocates, are legally bound to state the truth, but they intentionally gave false information in a judicial proceeding viz., bail application, knowing fully well that their statements are false and they thereby fabricated false evidence in a judicial proceeding. The 1-Addl. Sessions Judge who was in charge of the District and Sessions Court and a party to the conspiracy, made over the bail application to the II-Addl. Sessions Court on 22-5-1996 and it was received by A3 (appellant in Crl. A.No.307/97) on 23-5-1996.
Entries in respect of the Cr.M.P.No.1086/96 are made in the Cr.M.P. Register and Diary of the Pr1. Dist. Court and also in the Cr.M.P. Register of the II-Addl. Sessions Court as Cr.No. 91/96 in which originally the bail application was filed.
In pursuance of their criminal conspiracy after the bail application was made over to the II-Addl. Sessions Court, A3 who was the custodian of the bail application got the application tampered with by altering the Cr.No. from 91/96 to 97/96 in the cause title, on the office note, on the docket sheet, memo of appearance -and in the process payment form, which are records of the court, without lawful authority and thus fabricated and forged the records of a Court of Justice illegally with intent to commit fraud in relation to a judicial proceeding to make it appear that the application was originally filed in Cr.No. 97/96.
In pursuance of their conspiracy A5 and the I-Addl. Session Judge, who was in charge of the II-Addl. Sessions Judge helped Al, A2 and A4 by willfully and intentionally ignoring the dismissal of earlier three bail applications and the alterations in the bail application and the said Judge granted bail to A4 on 27-5-1996. By using as genuine a tampered and forged bail application the petitioner (A4) has been granted bail and thus benefited."
The wrong mentioning of the Crime Nos. and Sections in IPC and their subsequent correction arc verifiable from the records. The non-mentioning of the earlier bail applications is also a verifiable fact. In some of the cases, it is seen that corrections of the Crime Nos. and Section in IPC were not carried out fully, and even then without full verification bails were granted. For instance in Calendar Case No. 4 of 1997, it is noticed that in Cr.M.P. No. 1724/96 filed for anticipatory bail, corrections were made only in the cause title and the prayer portion. The accused in that bail petition was actually involved in Crime No. 125/96 under Section 306 IPC but Crime No. 112/96 under Section 354 IPC was mentioned. Earlier the same accused who filed bail application in Cr.M.P. No. 1724/96, preferred Cr.M.P. No. 169 8/96.
31. In Calendar Case No. 13 of 1997 (in respect of which Criminal Appeal Nos. 385 and 394 of 1997 have been preferred) the facts alleged are as follows:
"on or about 7-8-1996 all the accused and Sri P. Thirupathi Reddy, the then II-Addl. Sessions Judge entered into a criminal conspiracy to do all sorts of illegal acts in order to get their bail application made over to the II-Addl. Sessions Court with a view to get favourable orders.
In pursuance of their criminal conspiracy Al (1st appellant in Crl .Appeal No. 394/97) filed an application for bail in Cr.M.P. No. 1714/96 on 7-8-1996 on behalf of A4 and A5 furnishing a false Cr.No.25/90 of P.S. Yellareddipet and a false Cr.M.P. No. 1626/96, stating that was filed by their co-accused and were granted bail by the II-Addl. Sessions Court.
Al and A5 have nothing to do with Cr.No.25/90 u/s. 148, 307 r/w. 149 IPC and Section 25/(1)(a) of Arms Act, 1959 of P.S.Yellareddipet and also with Cr.M.P.No. 1626/96.
Only with a view to get their bail application made over to the II-Addl. Sessions Court, Al and A2 (2nd appellant in Crl-Appeal No. 394/97), for the benefit of their client, A4 and A5, furnished a false Cr.No. and Cr.M.P.No. in the bail application. Al and A2, who are advocates, are legally bound to state the truth, but they intentionally furnished false information in the bail application, knowing fully well that their statement is false and the accused thereby fabricated false evidence in a judicial proceeding.
On account of the false statement made by the accused, the complainant was misled to make over the bail application to the II-Addl. Sessions Court for disposal.
After the bail application was made over to the II-Addl. Sessions Court, in pursuance of their criminal conspiracy A2 filed an application Cr.M.P.No. 334/96 on 8-8-1996 u/s. 482 Cr.P.C. to amend the Cr.No.25/90 to 12 of 1994 in the bail application.
The then II-Addl. Sessions Judge and A3 (appellant in Crl. Appeal No. 385/97) helped the other accused by willfully and intentionally ignoring the false Cr.M.P.No. 1626/96, which has no connection either with A4 and A5 or the Crime in which they are involved. The II-Addl. Sessions Judge, who is a party to the conspiracy, allowed the petition for amendment on 13-8-1996 and granted bail to A4 and A5. The II-Addl. Sessions Judge is being proceeded with departmentally and is now under suspension."
The learned Counsel for the appellants in Criminal Appeal Nos.385 and 394 of 1997 contend that the filing of Cr.M.P. No.334/96 shows that there was no culpable intention. I went through the papers in Cr.M.P. No. 334/96. It is seen that the prayer was only to amend Crime No. 25/90 to Crime No. 12/94 in the bail application (Cr.M.P,No.1714/96) and that was allowed. But no amendment was sought for deleting Cr.M.P. No. 1626/96 mentioned as earlier bail application filed in which bail was granted. Cr. M.P. No. 1626/96 had no connection whatsoever with the accused seeking bail in Cr.M.P.No. 1714/96 or the crimes in which they' were involved. A reading of the order in Cr.M.P.No.1714/96 shows that the Additional Sessions Judge yet relied on the bail granted in Cr.M.P. No. 1626/96 for granting bail in Cr.M.P. No. 1714/96 by the order dated 13-8-1996.
32. The facts mentioned in Calendar Case No. 29 of 1997 are tell-tale and the learned Sessions Judge had elaborately considered the same. The father Gangaram died on 5-9-1987 and at that time he was aged 57 years. His son B.Prabhakar impersonated him by filing a petition on 20-3-1989 fixing his own photograph purporting it to be that of his father Gangaram representing him as 40 years old. In the order under Section 340(1) of the Code dated 24-4-1997 the Sessions Judge further states as follows:
"The native place of Gangaram was also intentionally wrongly mentioned as Thimmapur whereas the deceased, Gangaram belonged to Dharmapuri. The photograph of the said Prabhakar which was affixed on the affidavit purporting to be that of B.Gangaram, was attested by the Counsel M.Hanmantha Rao. M.Hanmantha Rao, Advocate also identified the person appearing in the photograph as B.Gangaram, Claimant No. 5. He also made an endorsement on the affidavit that:-
'I identify the petitioner who is present in the Court.' The affidavit was verified by Sri E.Madhusudhan Rao, Advocate of Karimnagar. Sri. M.Hanmantha Rao, Advocate is well acquainted with B.Gangaram since he filed a petition under Section 18 of the Land Acquisition Act before the Land Acquisition Officer under the instructions of B.Gangaram and he filed a vakalath in O.P.No. 723 of 1985 on behalf of the claimants, pursued the case and examined B.Gangaram as P.W.2., The advocate and B.Prabhakar very well knew that Bheemanathi Gangaram died on 5-9-1987 and that the compensation amount of Rs.2,24,904-73 Ps. lying in the Court docs not belong to them and that they are not entitled to receive it. Yet, they fabricated false documents with the forged signatures of B.Gangaram and affixed the photo of B.Prabhakar on the affidavit to make the Court believe that the photo belongs to B.Gangaram and filed the fabricated and forged documents...."
The decision of a learned single Judge of Delhi High Court in Ranbir Singh v. State, 1990 (3) Crimes 207 is instructive. There also a complaint was made under Section 340 of the Code against an advocate regarding forging of Judicial record.
33. It is not necessary for me to deal with the facts in each of these Calendar Cases because the learned counsel for the appellants have not addressed arguments on the basis of the facts in each of the cases. I am satisfied that there has been proper application of mind by the Sessions Judge in each of these matters in making the orders and preferring the complaints under Section 340(1) of the Code.
34. In the result Criminal Appeals are dismissed