Kerala High Court
Imbichikoya.E.P vs State Of Kerala Rep. By Public on 8 February, 2011
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 305 of 2011()
1. IMBICHIKOYA.E.P.,
... Petitioner
Vs
1. STATE OF KERALA REP. BY PUBLIC
... Respondent
For Petitioner :SRI.JACOB SEBASTIAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :08/02/2011
O R D E R
THOMAS P. JOSEPH, J.
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Crl.M.C. No.305 of 2011
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Dated this the 8th day of February, 2011.
ORDER
Challenge in this proceeding is to Annexures1 and 3, proceeding under Section 340 of the Code of Criminal Procedure (for short, "the Code") initiated by learned Judicial First Class Magistrate-II (Mobile), Kozhikode, order thereon and the complaint preferred by the learned Magistrate before learned Chief Judicial Magistrate, Kozhikode pursuant to the said order.
2. On 04.12.2010 learned Magistrate was conducting camp sitting at Bepur. The police party stopped a vehicle driven by the petitioner and demanded vehicular documents. Petitioner told the learned Magistrate that vehicular documents are not with him as it is kept his house. Thereon he was asked to get it and appear before learned Magistrate on 06.12.2010. Petitioner checked up the vehicular documents and found that pollution control and insurance certificates had not been renewed at that time. He obtained the same some time after the inspection on 04.12.2010. Learned Magistrate thought that there was a willful false statement given by petitioner and accordingly ordered enquiry under Section 340 of the Code as if petitioner has committed offence punishable under Section 193 of the Indian Penal Code (for short, "the IPC"). Annexure-A1 is the report of enquiry conducted under Section 340 of the Code by which learned Magistrate came to the conclusion that petitioner has Crl.MC No.305/2011 2 committed offence punishable under Section 193 of the IPC and hence is to face a complaint. Accordingly it was directed that a complaint will be preferred before learned Chief Judicial Magistrate. Based on Annexure-A2, order learned Magistrate preferred a complaint before learned Chief Judicial Magistrate under Section 195 (1)(b)(i) of the Code alleging that petitioner has committed offence punishable under Section 193 of the IPC.
3. I have heard learned counsel for petitioner and the learned Public Prosecutor. Learned Public Prosecutor submitted that Section 341 of the Code provides an appeal against the order passed under Section 340 of the Code and the consequent complaint preferred and hence petitioner has to exercise the statutory remedy available to him. Learned counsel for petitioner has placed reliance on the decisions in P.K.Damodaran v. P.K.Bharathan (2004(1) KLJ 105), Mohan v. State of Kerala (2005 (2) KLT 714), Sagar v. State of Kerala (2006(1) KLT 69), Kuttiah v. Federal Bank Ltd. (2006(3) KLT 418) and Popular Muthiah v. State represented by Inspector of Police ((2006 7 SCC 296). According to the learned counsel, when the order under challenge is palpably wrong provision for filing appeal under Section 341 of the Code does not prevent this Court from exercising inherent power under Section 482 of the Code, since the said provision starts with a non-obstante clause.
4. Normally the procedure is to take recourse to the statutory remedy. Crl.MC No.305/2011 3 That would have been the proper course petitioner should have been advised to. But, on the facts and circumstances of this case, petitioner having already filed petition under Section 482 of the Code and in the light of the principles laid down in the decisions referred to above I am inclined to entertain this petition under Section 482 of the Code.
5. Section 340 of the Code states that when upon an application made to the court in that behalf or otherwise such court is of opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 of the Code 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, the court may after such preliminary enquiry if any as it thinks necessary record a finding to that effect, make a complaint thereof in writing and send it to the Magistrate of First Class where the offence is allegedly committed. Section 195(1)(b) of the Code refers to offences punishable under Sections 193 to 196 of the IPC and other Sections referred to therein. It is not relevant to advert to those other Sections since in Annexure-A1, report offence alleged to have been committed by the petitioner is only under Section 193 of the IPC. The said provision deals with punishment for false evidence and states that whoever intentionally gives false evidence in any stage of a judicial proceeding or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding he shall be punished as Crl.MC No.305/2011 4 provided therein. In otherwords, it is only if the petitioner has given false 'evidence' before learned Judicial First Class Magistrate-II (Mobile), Kozhikode that there was scope for conducting an enquiry under Section 340 of the Code. It is not disputed that 'evidence' of petitioner was not recorded by the learned Magistrate and instead, he was only asked about the vehicular documents which he said are kept in his house and it was later revealed that as on the date of inspection petitioner was not having valid documents. That statement of petitioner is not 'evidence' coming under Section 193 of the IPC. Hence it cannot be said that an offence under Section 193 of the IPC is made out so that the learned Magistrate was required to conduct enquiry under Section 340 of the Code.
6. It is also complained that against Section 315 of the Code petitioner was examined as a witness in the enquiry under Section 340 of the Code. Section 315 of the Code states that any person accused of an offence before a criminal court shall be a competent witness for the defence and may give evidence on oath provided that he shall not be called as such witness except on his own request in writing. It is not shown that examination of petitioner as witness was on his request in writing. If that be so, Annexure-A1, report and the consequent complaint (Annexure-A3) have to go.
Resultantly this petition is allowed. Annexure-A1, report, Annexure-A3, complaint and proceedings in C.C.No.30 of 2010 of the court of learned Judicial First Class Magistrate-V, Kozhikode are quashed. I make it Crl.MC No.305/2011 5 clear that this order will have no bearing on the finding entered by the learned Judicial First Class Magistrate-II (Mobile), Kozhikode as to the commission of offences under the Motor Vehicles Act.
THOMAS P.JOSEPH, Judge.
cks 'C.C.No.30/2010' occurring in the second line of the last paragraph of the order dated 08.02.11 in Crl.M.C.No.305/11 is corrected and substituted as 'C.C.No.30/2011' as per the order dated 11.03.11 in Crl.M.A.No.1388/11 in Crl.M.C.No.305/11.
Sd/-
Registrar (Judicial)