Suresh Raj vs National Investigation Agency on 14 June, 2022

[Cites 16, Cited by 0]

Kerala High Court

Suresh Raj vs National Investigation Agency on 14 June, 2022

1. Under challenge in the instant appeal is an order dated 17.01.2022 in Crl.M.P. No.242/2021 in R.C. No.1/2021/NIA/KOC of the Special Court for Trial of NIA cases, Ernakulam. An application forwarded to the Special Judge under the National Investigation Agency Act by the Superintendent of High Security Prison, Viyyur - alleging custodial torture to extract a confession of the appellant (sixth accused in the crime) - was forwarded to the Chief Judicial Magistrate for inquiry under Section 200, Cr.P.C. The challenge against the said order is premised on the contention that the complaint ought to have been proceeded under Section 340, Cr.P.C., which according to the appellant/A6 was the only course open before the Special Judge.

2. Before considering the merits of this appeal, we may indicate that, simultaneous with this appeal, we are disposing Crl.A. No.213/2022 preferred by the same appellant, which was directed against the order of the Crl.A.307/2022 3 Special Court, as per which, it rejected the appellant's objection regarding the stage at which and powers under which the Special Court was to consider an application for tender of pardon preferred by the N.I.A.

3. Heard Smt.Sangeetha Lakshmana on behalf of the appellant and Sri. S.Manu, learned Assistant Solicitor General of India representing the respondent/N.I.A.

4. Learned counsel for the appellant argued that the custodial torture undergone by the appellant/A6 would attract the offence under section 195-A of the Penal Code and hence the Special Court should have proceeded under Section 340, Cr.P.C., the offence being one specifically referred to in Section 195(1)(b) of the Code. Learned counsel submitted that, custodial torture took place while the appellant/A6 was in judicial custody, wherefore, the appellant's grievance is not merely and purely personal, but a matter in which the Special Court should have assumed an active role by invoking the powers under Section 340, Cr.P.C. The offence in question is committed in relation to a proceeding before the Special Court, as per which the appellant/A6 was given judicial custody to the N.I.A and therefore, interests of justice demands an inquiry under Section 340 Cr.P.C. Forwarding Crl.A.307/2022 4 such a complaint to the Chief Judicial Magistrate for inquiry under Section 200, Cr.P.C, is neither appropriate; nor satisfy the requirements of justice, custodial torture being one of the most barbaric acts resorted to by the investigating agency even during the present times.

5. Per contra, this application was opposed by the learned ASGI on the following grounds. Primarily, on facts, learned ASGI pointed out that, the appellant/A6 had withdrawn his complaint alleging custodial torture for reasons set out in the application for withdrawal, that too after receiving adequate legal advice in this regard. Therefore, the appellant/A6 cannot be heard to have any grievance, whatsoever, in respect of the impugned order. Secondly, learned ASGI pointed out that, dehors such withdrawal of the complaint, the Special Judge felt it necessary and appropriate to forward the complaint to the Chief Judicial Magistrate for inquiry under Section 200, Cr.P.C., which, in the given facts, is something more than the appellant could have aspired for. Thirdly, learned ASGI pointed out that, the offence under Section 195-A of the Penal Code is not attracted at all in the given facts, even if the contents of the appellant's complaint is taken in its face value. Crl.A.307/2022 5 Instead, the offence attracted is the one under Section 330 of the IPC. If that be so, the question of invocation of Section 340, Cr.P.C, does not arise at all, offence under section 330 being not one referred in Section 195(1)(b) of the Code, contends the learned ASGI. Learned ASGI then pointed out that the alleged instance of custodial torture, if any, would not answer the requirements of invoking Section 340 Cr.P.C., having regard to the pre-requisites made mention of in that section. The offence alleged to have been committed is not one 'in or in relation to a proceeding' in that Court or 'in respect of a document produced or given in evidence' in a proceeding in that Court. The paramount requirement for invoking Section 340, Cr.P.C, is the satisfaction of the Court concerned that it is expedient in the interests of justice that an inquiry should be made into the offence referred to in Section 195(1)(b), Cr.P.C., which satisfaction can hardly be arrived at in the given facts. Finally, learned counsel pointed out that, in the complaint preferred by the appellant/A6 through the Superintendent of Jail, there is no request made to initiate proceedings under Section 340, Cr.P.C. Learned ASGI would conclude that the instant appeal is nothing but, an abuse of the process of Court. Crl.A.307/2022 6

6. Section 340(1) of the Cr.P.C. is extracted herewith:

"Section 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 sub-section (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 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."

A perusal of the section would indicate that the most important pre-requisite to invoke the procedure contemplated in section 340, Cr.P.C, is that an offence referred to in section 195(1)(b), Cr.P.C, should have been committed in or in relation to a proceeding before Crl.A.307/2022 7 the Court or in respect of a document produced or given in evidence in a proceeding in that court. Let us first see the allegations in the complaint and whether the same would constitute the offence under section 195-A of the Penal Code.

7. Annexure-5 is the complaint, wherein the appellant would allege that while in judicial custody pursuant to his arrest on 2.8.2021, he was tortured physically and mentally compelling him to 'accept the crime', thereby meaning to admit his guilt. His hands were tied, head hit with steel plate and kicked on his hip on consecutive days to extract a confession. Abusive words were used against the members of his family. One Investigating Officer had gone to the extent of threatening the appellant that his daughter will be sexually assaulted to coerce him to admit the crime. Another demand was that the appellant should admit that he knows certain persons, whose photos were shown to him by the Investigating Officer.

8. Having referred to the complaint, we will now address whether its contents would attract the offence under Section 195-A, I.P.C, which is extracted herein below: Crl.A.307/2022 8

"195-A : Threatening any person to give false evidence.

Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause that person to give false evidence shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both;

and if innocent person is convicted and sentenced in consequence of such false evidence, with death or imprisonment for more than seven years, the person who threatens shall be punished with the same punishment and sentence in the same manner and to the same extent such innocent person is punished and sentenced."

9. An important aspect which looms large from Section 195-A is the purpose for which threat is extended to a person, that is to say, "to cause that person to give false evidence". It is, therefore, manifest that a threat to a person who is capable of giving evidence alone will attract the offence under Section 195-A, provided such threat is to cause that person to give false evidence.

10. It is relevant to note that Section 195-A of the Penal Code was introduced by the amending Act (No.2 of 2006) to Chapter XI of the Penal Code, which deals with 'False evidence and offences against public justice'. The Crl.A.307/2022 9 expression "giving false evidence" (as employed in Section 195-A) is defined in Section 191 of the Penal Code, which is extracted herein below:-

"191. Giving false evidence.-- Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

          Explanation 1.--       xxx
          Explanation 2.--       xxx "

The ingredients of the offence under Section 191 of the Penal Code, as provided in the celebrated treatise of the Penal Code by Ratanlal and Dhirajlal (32nd Edn. 2010, at page no.929) is extracted herein below:-

"Ingredients of offence - The offence defined in this Section involves three ingredients:-

1. A person must be legally bound;

(i) by an oath, or an express provision of law, to state the truth; or (ii ) to make a declaration upon any subject.

2. He must make a false statement.

3. He must;

(i) know or believe it to be false, or

(ii) not believe it to be true"

Crl.A.307/2022 10

11. Section 4 of the Indian Oaths Act, 1969 is quite relevant to the context and extracted hereunder:

"4. Oaths or affirmations to be made by witnesses, interpreters and jurors.-

(1). Oaths or affirmations shall be made by the following persons, namely :-

(a) All witnesses, that is to say, all persons who may lawfully be examined, or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence.

(b) interpreters of questions put to, and evidence given by, witnesses; and

(c) juniors:

Provided that x x x x x (2) Nothing in this section shall render it lawful to administer, in a criminal proceeding, an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any Court, after he has entered on the execution of the duties of his office, an oath or affirmation that he will faithfully discharge those duties."

12. Beyond the cavil of any doubt, it is clear from the above extracted portions that the victim targeted in Section 195-A is certainly not an accused person; except Crl.A.307/2022 11 when an accused person is made an approver, in which circumstance his status as an accused is temporarily suspended, subject to compliance of Section 306(4), Cr.P.C. An accused person is never legally bound by an oath, or for that matter, by a provision of law to state the truth before a court of law. Nor is he bound by law to make a declaration upon any subject. Therefore, an accused person would not answer the definition of 'giving false evidence', as contemplated in Section 191 of the Penal Code. Now, as indicated already, the victim focused in Section 195-A, is a witness, who would be legally bound by an oath to give evidence. If he is subjected to a threat of the nature referred to in Section 195-A, with an eye fixed on causing that person to give false evidence, the offence under Section 195-A is attracted. An accused person enjoys the constitutional safeguard contemplated in Article 20(3) of the Constitution of not being compelled to be a witness against himself. His right of silence is settled, unless otherwise expressly provided for in the statute. Therefore, the question of an accused giving evidence, or for that matter, giving false evidence, does not arise at all, except when he is made an approver, or when he volunteers himself as a witness. Further, the second limb of Section 195-A which speaks about the consequences of the victim giving false Crl.A.307/2022 12 evidence, pursuant to a threat as referred to in Section 195-A, would make it explicit that the person/victim focused in Section 195-A is not an accused person.

13. In Hari Charan Singh v. Queen-Empress [(1900) ILR 27 Cal 455], the question was whether a statement given by a person for the purpose of proceeding under Section 190(c) of the Code, which was subsequently deviated from while adducing evidence before the Court, would fall within the mischief of Section 191 of the Penal Code. The Division Bench of the High Court observed as follows:-

".....Now, the petitioner was at that stage of the proceedings certainly not a witness. He was examined by the Magistrate for the sake of obtaining information on which proceedings could be taken, and, therefore, the Magistrate, although he might examine him to obtain information could not, as we understand the law, examine him on oath. Moreover, there is no authority that, being so examined, the petitioner was bound by any express provision of law to state the truth. Consequently, any charge for giving false evidence founded on this statement is bad, and it therefore follows that the conviction and sentence founded on this statement as being contrary to another statement without any proof or finding that the second statement was false cannot be maintained. The conviction and sentence must therefore, be set aside and the rule made absolute."

(Underlined by us for emphasis) Crl.A.307/2022 13

14. In Syed Alley Eba Rizvi v. State (1971 Crl.LJ 359), it was held that the words "legally bound by an oath"

contemplates a witness.

15. In the commentary to the Indian Penal Code by Ratanlal & Dhirajlal (32nd Enlarged Edition 2010), it is commented as follows, at page 927:

"Accused not liable for giving false evidence - The authors of the Code observe: "We have no punishment for giving false evidence given by a person when on his trial for an offence, though we conceive that such a person ought to be interrogated. .... If A stabs Z and afterwords on his trial denied that he stabbed Z, we do not propose to punish A as the giver of false evidence. [Note G p.131]. The accused shall not render himself liable to punishment by refusing to answer questions put by the court or by giving false answers to them. [Criminal Procedure Code, S. 313(3)]"

16. Upon perusing Annexure-5 complaint, we could not see any allegation to the effect that the appellant/A6 was subjected to threat, hurt and torture, compelling him to become an approver. The allegation is of torture of the accused for the purpose of extracting a confession; which confession, if at all made to the police cannot be evidenced and proved as against the accused person. Crl.A.307/2022 14

17. For the reasons afore referred, we prima facie find that the offence under Section 195-A of the Penal Code is not attracted, having regard to the allegations leveled in the subject complaint.

18. Simultaneous with the above, we find that the offence which may be attracted, going by the allegations in the complaint, is the one under Section 330 or Section 331 of the Penal Code, depending upon the gravity of the hurt caused. Illustration (a) to Section 330, Cr.P.C, is eloquent and self explanatory. We fully endorse the submission of the learned ASGI in this regard. The state of affairs being so, the offence under Section 330, or for that matter Section 331, is not one falling under Section 195(1)(b), Cr.P.C, wherefore, Section 340, Cr.P.C, has no application, whatsoever.

19. We also find substance in the contention of the learned ASGI that the appellant/A6, pursuant to legal advise, had withdrawn his complaint before the learned Special Judge, as could be seen from paragraph no.13 of the impugned order. In his application in writing, appellant/A6 reserved his right to move other appropriate forum to redress his grievance. The inevitable legal consequence of that application is that appellant had Crl.A.307/2022 15 relinquished or abandoned his grievance before the Special Court, of course reserving his right to move other forum. Notwithstanding such withdrawal, learned Special Judge directed the complaint to be forwarded to the Chief Judicial Magistrate for an inquiry under Section 200, Cr.P.C, only because of the inherent seriousness of the allegations leveled. Nothing has been argued before us to indicate that, pursuing such remedy under Section 200, Cr.P.C, would prejudice the appellant's right to approach such other forum in respect of the same cause of action. On that count also, the appellant has no legitimate grievance to be aggrieved of the direction made by the learned Special Judge.

20. Before we part, we also refer to Section 195-A, Cr.P.C, which was introduced by Cr.P.C (Amendment) Act, 2008 (Act 5 of 2009). This amendment was consequential to introduction of Section 195-A to the Penal Code vide Act 2 of 2006. As per Section 195-A, Cr.P.C, a witness or any other person may file a complaint in relation to an offence under Section 195-A of the Penal Code. True that this enabling section would not fetter the powers under Section 340, Cr.P.C, but one fails to understand the relative advantage, if any, of the appellant in insisting a course under Section 340, Cr.P.C, in preference to the Crl.A.307/2022 16 one under Section 200, Cr.P.C. In a case where Section 340 is attracted, what follows, after preliminary enquiry by the court, is again a complaint to be sent to the jurisdictional Magistrate. A complaint under Section 340 and the one under Section 200 of the Code, both, are to be adjudicated based on the evidence adduced before the Magistrate. Therefore, we find that the appellant is not put to any prejudice in accepting the course directed in the impugned order.

21. We clarify that, the direction contained in the impugned order is not a case covered by Section 200(a), Cr.P.C. The complaint is not one made by the Court and therefore, the Magistrate concerned will have to proceed under Section 200, Cr.P.C, by examining the complainant on oath and to proceed in accordance with law.

22. The fallout of the above discussion is that this appeal fails and the same is therefore dismissed.

Sd/-

K.VINOD CHANDRAN JUDGE Sd/-

C.JAYACHANDRAN JUDGE Sbna/jg Crl.A.307/2022 17 APPENDIX OF CRL.A 307/2022 PETITIONER ANNEXURES Annexure- TRUE COPY OF THE ORDER DT.13.08.2021 ISSUED BY A1 HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM IN CRL.M.P NO.150/2021 IN RC-

01/2021/NIA/KOC.

Annexure- TRUE COPY OF THE ORDER DT.13.08.2021 ISSUED BY A2 HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM IN CRL.M.P NO.149/2021 IN RC-

01/2021/NIA/KOC.

Annexure- TRUE COPY OF THE ORDER DT. 09.11.2021 ISSUED BY A3 HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, ERNAKULAM IN CRL.M.P NO.210/2021 IN RC-

01/2021/NIA/KOC.

Annexure- TRUE COPY OF THE LETTER DT.17.11.2021 ISSUED BY THE A4 HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, TO THE SUPDT SUB JAIL ALUVA.

Annexure- TRUE COPY OF THE COMPLAINT LETTERS DT.28.08.2021 A5 SENT BY THE APPELLANT AND SOUNDAR RAJAN @ SOUNDAR (A8) FROM SUB JAIL ALUVA AND THE REPORT DT.20.11.2021 OF THE SUPDT, SUB JAIL ALUVA. Annexure- TRUE COPY OF THE OBJECTIONS DT.29.11.2021 FILED BY A6 THE RESPONDENT IN CRL.M.P 242/2021 IN RC-

01/2021/NIA/KOC.

Annexure- TRUE COPY OF THE STATEMENT DT. 08.12.2021 OF SURESH A7 RAJ IN CRL.M.P 242/2021 IN RC-01/2021/NIA/KOC RECORDED BY THE HON'BLE SPECIAL COURT.

Annexure- TRUE COPY OF THE ADDITIONAL STATEMENT DT.01.01.2021 A8 FILED BY THIS APPELLANT HEREIN IN CRL.M.P 242/2021 IN RC-01/2021/NIA/KOC.

Annexure- TYPED COPY OF THE PROCEEDINGS IN RC A9 NO.01/2021/NIA/KOC AND SESSIONS CASE 4/2021 FROM 15.06.2021 TILL DATE AS NOTED IN THE A-DIARY OF THE HON'BLE SPECIAL COURT FOR TRIAL OF NIA CASES, KERALA

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