Kerala High Court
Jose Kuruvinakunnel vs A.T. Jose on 6 December, 1996
Equivalent citations: 1997CRILJ816
ORDER K.A. Mohamed Shafi, J.
1. The petitioner in O.P. (Misc.) 7/85 on the file of the Munsiffs Court, Pala is the revision petitioner.
2. The revision petitioner was the 4th plaintiff in O.S. 68/83 on the file of the Munsiffs Court, Pala seeking a decree to set aside certain documents and for mandatory injunction directing defendants 7 and 8 to restore the plaint schedule item No. 1 road to its original condition. The plaintiffs alleged that defendants 4 and 6 who are the parents of the 5th defendant, who is the owner of item No. 2 of the plaint schedule properties influenced defendants 2 and 3, the Panchayat President and the Executive Officer respectively to deviate Item No. 1 public road through item No. 2 property and to appropriate item No. 1 property in the place of item No. 2 property and for that purpose defendants 2 and 3 manipulated certain documents such as minutes book of the Panchayat Committee etc. After trial the Munsiff s Court dismissed the suit.
3. The revision petitioner herein filed O. P. (Misc) 7/85 before the Munsiffs Court, Pala under Section 340 of the Criminal Procedure. Code against the respondent herein who is the 3rd defendant in O.S. 68/83 alleging that he had manipulated the official records of the Panchayat and had given false evidence before Court and as such he has committed the offence punishable under Sections 191 and 192 of the IPC.
4. After trial the Munsiffs Court dismissed the Suit. The Munsiffs Court also dismissed the O. P. (Misc.) 7/85 holding that there is no sufficient material to institute proceedings against the respondent herein under Section 340 of the Cri. P. C.
5. The plaintiffs filed A. Section 202/85 before the District Court, Kottayam challenging the decree and judgment in the suit and the revision petitioner filed C. M. A. No. 56/87 before the District Court challenging the order passed by the Munsiff s Court in O. P. (Misc.) 7/85. The District Court by the common judgment dated 5-9-1992 in A. S. No. 202/85 and C. M. A. No. 56/87, allowed A. Section 202/85 setting aside the decree and judgment of the Munsiff's Court in the suit and decreed the suit as prayed for and dismissed C. M. A. 56/87 confirming the order passed by the Munsiff's Court in the O. P. This revision petition is filed challenging the judgment in C. M. A. 56/87 of the District Court.
6. The revision-petitioner has vehemently contended that in order to proceed under the provisions of Section 340 of Cr. P. C. only a prima facie case need be made out and in spite of the fact that a more than prima facie case is made out .by the revision petitioner in this case, the trial Court dismissed the O. P. on the ground that no convincing evidence is adduced by the revision-petitioner and the lower appellate Court confirmed that order without going into the merits of the case, and therefore, the order passed by the Munsiff's Court and confirmed by the appellate Court is absolutely illegal and unsustainable.
7. It is settled law that in order to proceed against a person under Section 340 of the Cr. P. C. what is required is prima facie evidence to indicate that the offences alleged are likely to have been committed by him and the Court need not probe into the question whether sufficient materials are available to convict the opposite party for the alleged offence.
8. In the decision in Kapoor v. Kairon AIR 1956 All 66 : 1966 Cri LJ 115 a Division Bench of the Allahabad High Court has observed as follows :
It has next to be seen if a prima facie case has been made out upon the evidence and materials on record for enquiring further into the question whether the offences alleged against the opposite party appear to have been committed by him, so as to call for the lodging of a complaint. At the moment, this Court has not to express any opinion on the guilt or innocence of the opposite party. The use of the words "appear to have been committed" in Section 476 of the Code of Criminal Procedure is significant and it merely shows that at the present stage there should be prima facie material before this Court to indicate that the offences complained of are likely to have been committed by the opposite party.
9. In the decision in Ali Hassan v. Kamla Prasad AIR 1969 Patna 323 : 1969 Cri LJ 1262 a single Judge of the Patna High Court has observed as follows (Para 6):
The contention of the learned counsel so far as this point is concerned is untenable and the law is well settled that the power to make such a preliminary enquiry is in the discretion of the Court and whether an enquiry is necessary or not will depend on the facts and circumstances of each case and where a prima facie case has already been made out, a preliminary enquiry is not necessary and absence of such an enquiry does not necessarily vitiate the proceeding the object of such an enquiry being the satisfaction of the Court making a complaint that a prima facie case was actually made out against the person committed the offence.
10. Therefore, the contention of the revision-petitioner that only a prima facie case against the respondent need be made out so as to proceed against the respondent under Section 340 of the Cr. P. C. accepted.
11. The respondent vehemently contended that no revision under Section 115 of CPC lies to this Court in respect of the order passed by the Munsiff's Court under Section 340 of the Cr.P.C., even though an appeal is provided under Section 341(1) of Cr. P. C, against the order passed under Section 340 of Cr. P. C. to the Court to which appeal from the Court which passed the order under Section 340 of Cr. P. C. lies. Therefore, according to him, the above revision petition filed under Section 115 of the CPC is not sustainable. In support of this contention the counsel for the respondent placed reliance upon various decisions.
12. In the decision in Dhanpat Rai v. Balak Ram, AIR 1931 Lahore 761 : 1932 (33) Cri LJ 178 a Full Bench of the Lahore High Court observed as follows :
I would, therefore, answer the first question referred to the Full Bench by holding that revisions lie to the High Court and lie under Section 439, Criminal P. C., in all cases whether the Court be a civil, criminal or revenue Court.
13. In the decision in Thimma Reddi v. Gangamma AIR 1955 Mysore 46 : 1955 Cri LJ 558 a single Judge of the Mysore High Court after referring to several decisions of the other High Courts, observed as follows (Para 6):
I respectfully agree with those decisions and hold that the nature of the proceedings to hold an enquiry in order to lodge a complaint is of a criminal nature irrespective of the fact that the proceedings have arisen from a civil or a criminal Court. It is doubted at this stage whether this Court could deal with this revision petition at all, as it is filed under Section 115, Civil P. C. The provision of the law under which the petition is filed, is, in the view I have taken, obviously incorrect. Whatever be the method adopted in bringing the matter to its attention, the High Court can act in revision under Section 439, Cr. P. C., as observed by Beaumont C. J. in the Full Bench case of the High Court of Bombay referred to above.
14. In the decision in Varadaraja Goundar v. Narasimhalu Reddiar (1961) 1 Mad LJ 295 : 1961 (1) Cri LJ 826 a single Judge of the Madras High Court has observed as follows :
In S. R. No. 32806 of 1957, Ramaswami, J. has held that (1) as a remedy by way of appeal lies against the order complained of no revision would lie; (2) that the Assistant Judge, City Civil Court should be deemed to be subordinate to the Principal City Civil Judge's Court within the meaning of Section 476-B read with Section 195(3), Criminal Procedure Code.
It follows that an appeal against the order complained of would lie to the principal Judge. The Revision Petition cannot be entertained.
15. In the decision in Uchhabananda Samantaray v. Krishna Kumar Basu (1963) 29 Cut LT 631, a single Judge of the Orissa High Court after referring to the various decisions of the other High Courts and the Supreme Court, observed as follows :
In this case, though the revision has been filed directly against the original order, a criminal revision lies and not a civil revision.
16. In the decision in Shamji Khima v. The State of Gujarat ILR (1966) Gujarat 182 : 1966 Cri LJ 964 a single Judge of the Gujarat High Court after considering the decisions of the various High Courts on the subject, observed as follows (at p. 966 of Cri LJ):
The intention of the Legislature is clearly to provide an appellate forum in section 476-B when the application to make a complaint under Section 478 has been refused by any Civil or Revenue or Criminal Court. It is true that an appeal is provided from the order of refusal by any Civil, Revenue or Criminal Court, but the jurisdiction exercised under Section 476 would be criminal in nature and such an appeal could be dealt with like any other criminal appeal.
17. In the decision in Rampati Kuer v. Jadunandan, AIR 1968 Patna 100 : 1968 Cri LJ 354 a Full Bench of the Patna High Court has observed as, follows (Para 8):
The inquiry under Section 476, Cr. P. C., relates to offences under the Penal Code, even though such an inquiry may be made either by the Civil Court or Revenue Court, as the case may be. Hence, an inquiry under Section 476 by the Civil Court will also be an inquiry as defined in clause (k) of Section 4, Cr. P. C. It will be a criminal proceeding, though the inquiry is conducted by the Civil Court, in view of the express provisions of Section 476, read with Section 5(1) of the Criminal Procedure Code. As pointed out by the House of Lords in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government, (1943) AC 147, per Viscount Simon, L. C., at p. 156, 'if the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming jurisdiction to do so, the matter is criminal'. Here the preliminary inquiry under Section 476, Cr. P. C., may lead to the placing on trial of the alleged offender and his subsequent punishment, and it must, therefore, be held to be a criminal proceeding irrespective of whether the inquiry is conducted by the Criminal Court or Civil Court or Revenue Court, as authorised by the Section. This decision of the House of Lords was cited with approval in A.W. Meads v. Emperor AIR 1945 FC 21 : 1946 (47) Cri LJ 426.
18. In the decision in Krishna Bhat v. Keshava Bhat (1991) 1 Ker LT 72, a single Judge of this Court has observed as follows :
Whether the order of the Court below refusing to launch prosecution under Section 340 of the Code of Criminal Procedure is revisable under Section 115 of the Code of Civil Procedure is the point the arises for consideration. Section 341 of the Code of Criminal Procedure states that 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, can file appeal to the Court to which the Court which passed the order is subordinate. As the Court below refused to make a complaint; the remedy available to the revision-petitioner is only by way of filing appeal as provided under Section 341. Even though the Civil Court has passed the order the aggrieved party cannot challenge it under Section 115, CPC in view of the specific remedy of appeal as provided under Section 341 of the Code of Criminal Procedure.
19. From the above observations made by the various High Courts including this Court, it is clear that since the proceedings; under Section 340 of Cr. P. C. though initiated before the Civil or Revenue Court are essentially criminal in nature, against the orders passed by the trial Court under Section 340 of the Cr.P.C. or the appellate Court under Section 341 of the Cr. P. C. no revision to the High Court under Section 115 of CPC lies. Hence it is clear that the above revision petition filed by the petitioner against the judgment of the appellate Court under Section 341 of Cr P. C. is unsustainable and incompetent.
20. It is clear from Section 340 of Cr. P. C. that if any 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 subsection (1) of Section 195 which appears to be committed in or in relation to a proceeding in that Court or as the case may be in respect of a document produced or given in evidence in a proceeding in that Court, such Court may after such preliminary enquiry, if any, as it thinks necessary, record a finding to that effect, make a complaint thereof in writing and send it to a Magistrate of the First Class having jurisdiction. Therefore, it is within the discretion of the Court when it appears that an offence referred to in Section 195(1)(b) of Cr. P. C. has been committed in a proceeding before the Court, to conduct such preliminary enquiry as it thinks necessary, record a finding to that effect and make a complaint in writing before the competent Magistrate's Court, if it is expedient in the interests of justice.
21. In the decision in M.S Sheriff v. State of Madras AIR 1954 SC 397 : 1954 Cri LJ 1019, the Supreme Court observed as follows (Para 12):
As there is a right of appeal we have next to consider the matter on its merits and there the only relevant consideration is whether 'it is expedient in the interests of justice' that an enquiry should be made and a complaint filed. That involves a careful balancing of many factors.
22. It is well settled that the question whether action should be taken under Section 195 of Cr. P. C. or not is a matter primarily within the domain of the Court in which the application is filed and the discretion exercised by the Court should not be interfered with lightly either in appeal or in revision. In the decision in Virindar Kumar v. State of Punjab AIR 1956 SC 153 : 1956 Cri LJ 326, the Supreme Court observed as follows (Para 10): -
It must be emphasised that in the view that the order of the Magistrate dated 17-9-1952 was final, this appeal being really directed Against that order there must ,be exceptional grounds before we can interfere with it in special appeal, and none such has been established. On the other hand, whether action should be taken under Section 195 is a matter primarily for the Court which hears the application, and its discretion is not to be lightly interfered with in appeal, even when that is competent.
23. The counsel for the revision-petitioner vehemently contended that it is clear from the order passed by the Munsiff's Court and the judgment of the appellate Court in the appeal, that both the Courts refused to initiate proceedings against the respondent only on the ground that convincing evidence is not adduced by the revision-petitioner to establish that the respondent has fabricated false evidence and perjured in the suit, and that those findings are manifestly wrong and illegal since what is to be established in a proceeding under Section 340 of Cr. P. C. is only prima facie evidence to indicate that the offence alleged is likely to have been committed by him and there is no burden upon the petitioner to adduce conclusive proof against the respondent with reference to the allegations made against him.
24. Even though, in view of my finding that the above revision-petition under Section 115 of CPC is incompetent, there is no necessity to consider this aspect of the case, in view of the fact that elaborate arguments are advanced by both sides on this question, I consider this aspect also.
25. The revision-petitioner has contended that the respondent, who is the Executive Officer of the Panchayat, had manipulated and forged several official records of the Panchayat and had given false evidence before Court in the suit. According to him, the respondent falsely included one more item in the agenda of the meeting held on 7-8-1982 after that meeting. That item relates to the decision regarding the disputed road. The minutes of the meeting of the Panchayat Committee held on 7-8-1982 was manipulated to show that the Panchayat resolved to exchange item No. 1 for item No. 2 of the plaint schedule properties herein. It is contended by the revision-petitioner that the respondent was not actually present in the meeting on 7-8-1982, though he deposed in Court that he was physically present and had written the minutes of the meeting in his own handwriting.
26. The trial Court as well as the appellate Court after careful consideration of the evidence on record on this aspect of the case, came to the conclusion that though some doubt regarding the acts done by the respondent was created, there was no evidence on record to find that the respondent has fabricated false evidence in judicial proceedings and committed perjury, so as to proceed against him under Section 340 of Cr. P. C.
27. As already noted the discretion exercised by the trial Court as well as the appellate Court on this aspect of the case after considering the entire evidence on record cannot be lightly interfered with by the revisional Court. It is not open to the revisional Court to reappraise the evidence and to come to a different finding from what is arrived at by the trial Court as well as the appellate Court concurrently, even if such a finding is possible. Therefore, in view of the fact that the trial Court as well as the appellate Court found that it is not expedient in the interests of justice to initiate proceedings against the respondent under Section 340 of Cr. P. C., that finding cannot be interfered with by the revisional Court.
28. It is also pertinent to note that though the appellate Court reversed the finding of the trial Court in the suit and decreed the suit as prayed for, it confirmed the finding of the trial Court in the above O. P. and dismissed the C. M. A. filed against the order in the O. P. The provisions of Section 340 of Cr. P. C. are intended to launch prosecution against the parties, if it is expedient in the interests of justice and is not intended to vindicate the revenge of any private party.
29. In the decision in Suntokh Singh v. Izhar Hussain AIR 1973 SC 2190 : 1973 Cri LJ 1176 the Supreme Court observed as follows (Para 11):
Every incorrect or false statement does not make it incumbent on the Court to order prosecution. 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. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the Court should direct prosecution.
30. Therefore, it is clear that prosecution can be initiated by resorting to Section 340 of Cr. P. C. only in cases where it is expedient in the interests of justice to prosecute the party and prima facie evidence is adduced in that behalf and the provisions of Section 340 of Cr. P. C. cannot be resorted to lightly on the mere allegations, or to vindicate personal vendetta.
31. Lastly it is contended by the counsel for the respondent that even if a revision is sustainable under the provisions of the Cr.P.C., a revision lies to this Court only under Section 482 of Cr. P. C. and no revision lies under Section 397 of Cr. P. C.
32. In the decision in Lalit Mohan v. Benoyendra Nath AIR 1982 SC 785 : 1982 Cri LJ 625, the Supreme Court observed as follows (Para 1) :
We agree with the High Court that against an order passed in appeal under Section 341 of the Criminal P. C., the order would not be revisable by the High Court under Section 397(2) of the Criminal P. C., but there can be no doubt that the Court is entitled to examine the matter under Section 482 of the Criminal P. C. which expressly overrules the bar contained in Section 341 of the Code.
33. Therefore, it is clear that as against the. judgment of the appellate Court against the order passed by the trial Court in a proceeding under Section 340 of Cr. P. C. no revision will lie to this Court under Section 115 of CPC and though a revision against the judgment in appeal is sustainable before this Court under the provisions of Cr. P. C., it will lie only under Section 482 of Cr. P. C. and no revision will lie under Section 397 of Cr. P. C. In view of my foregoing findings, the above revision petition being incompetent and not sustainable and also devoid of any merits, is liable to be dismissed and I do so.