Kerala High Court
Sam Vincent vs State Of Kerala on 13 August, 2008
Author: V.Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2567 of 2008()
1. SAM VINCENT, S/O.SELVARAJ,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.K.K.DHEERENDRAKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :13/08/2008
O R D E R
V.RAMKUMAR, J.
...........................................................
Crl. R.P. No. 2567 of 2008
..........................................................
Dated this the 13th day of August, 2008.
ORDER
The revision petitioner challenges the order dated 02.06.2008 passed by the Chief Judicial Magistrate, Thodupuzha dismissing his application filed as C.M.P. No. 4304 of 2007 in C.C. No. 112 of 2007 seeking to keep in abeyance the proceedings in C.C. No. 112 of 2007 until the appeals preferred against the original judgment and pending before this Court are finally disposed of.
2. The revision petitioner was the first informant examined as PW1 in a sessions case disposed of by the Third Additional Sessions Court, Thodupuzha as S.C. No. 517 of 2006. The said case arose out of crime No. 183 of 2006 of Munnar Police Station for offences punishable under Sections 302, 392 and 114 r/w Section 120 (B) and 109 r/w Section 34 IPC. The Third Additional Sessions Judge disposed of the aforesaid sessions case on 30.08.2007 convicting of all the 3 accused persons therein. During the course of trial, the petitioner herein who was charge CRL.R.P. NO. 2567/2008 2 witness No.1 and who was examined as PW1, resiled from Ext.P1 F.I Statement given by him under Section 154 Cr.P.C. Hence, while disposing of the above sessions case, the Additional Sessions Judge came to the conclusion that the petitioner had given false evidence before the court and recorded a preliminary finding to that effect in the judgment in S.C. No. 517 of 2006. Thereafter, the Additional Sessions Judge conducted a preliminary enquiry under Section 340 Cr.P.C and decided to lodge a complaint before the Chief Judicial Magistrate, Thodupuzha against the revision petitioner for prosecuting him for an offence punishable under Section 193 IPC which appeared to have been committed by the revision petitioner when examined as PW1 in the aforesaid sessions case. The revision petitioner has admittedly not preferred an appeal against the said proceedings by invoking Section 341 Cr.P.C. After the complaint was forwarded to the Chief Judicial Magistrate, Thodupuzha, the case was registered as C.C. No. 112 of 2007. When the trial of the said case was about to be started, the revision petitioner filed C.M.P. No. 4304 of 2007 praying that C.C. No. 112 of 2007 may CRL.R.P. NO. 2567/2008 3 be kept in abeyance till the appeals preferred before this Court against the judgment in S.C. No. 517 of 2006 were disposed of by this Court. It was the said petition which was dismissed by the learned Chief Judicial Magistrate though not for the reason that there is no provision for adjourning the proceedings, but for the reason that in spite of adequate opportunities having been given to the petitioner to produce evidence in support of his contention that appeals are pending before this Court, he did not produce any material.
3. I heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
4. Where a witness examined before a criminal court is sought to be prosecuted by a court for an offence punishable under Section 193 IPC which appears to have been committed by such a witness while giving evidence before the court, it is open to the trial court to do so, if it is of the opinion that such a course is expedient in the interest of justice. But the Court can order prosecution of each witness only after a preliminary enquiry under Section 340 Cr.P.C, after giving notice in Form 33 to CRL.R.P. NO. 2567/2008 4 Appendix 1 of the Criminal Rules of Practice, Kerala, 1982. When such a decision is taken by the trial court and a complaint is preferred by the trial court or a superior court to which such trial court is subordinate, the person against whom such a complaint has been made by such a trial court, has a right of appeal under Section 341 Cr.P.C. If such person files an appeal under Section 341 Cr.P.C., he can obviously seek a stay of further proceedings in the complaint preferred against him in the prosecution under Section 193 IPC. In such a case, the Magistrate before whom such a complaint is filed will have to stay his hands until the appeal is disposed or the stay is vacated. Apart from the above provision, Section 343 (2) Cr.P.C also provides for adjournment of the proceedings initiated on the basis of the complaint, if it is shown that an appeal is pending against the decision arrived at in the judicial proceedings out of which the complaint has been instituted. Section 343 Cr.P.C. reads as follows:
Procedure of Magistrate taking cognizance:- (1) A 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.CRL.R.P. NO. 2567/2008 5
(2). Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.
5. Subsection 2 of Section 343 Cr.P.C contemplates a situation where the judgment passed in the main proceedings out of which the decision was taken to prosecute the witness concerned is appealed against and is pending. The trial in a prosecution in the course of which a witness is proceeded against for perjury may either end in a conviction or an acquittal. In either case, the accused or the Public Prosecutor, as the case may be, may prefer an appeal before the superior court. Section 343(2) Cr.P.C contemplates a situation where such an appeal is pending before the appellate court not at the instance of the witness who is proceeded against, but at the instance of the parties to the trial in the main case. In such a contingency the Magistrate is given a power to stay the trial of the case for perjury. The obvious reason for such a provision is that in the appeal preferred from the main proceedings, there is the CRL.R.P. NO. 2567/2008 6 possibility of the appellate court coming to a different conclusion with regard to the testimony of the witness concerned and if the appellate court were to differ from the view taken by the trial court and were to accept the testimony of such a witness as inspiring and true, then an anomalous situation may result in such witness being convicted for perjury. That is why the above provision provides for a stay of all further proceedings in the prosecution for perjury until the appeal from the main judgment is disposed of. The appeal referred to in sub-Section 2 of Section 343 Cr.P.C cannot obviously refer to an appeal under Section 341 Cr.P.C because if the witness concerned invokes Section 341 Cr.P.C and files an appeal, he can very well obtain an order of stay from the appellate court and when such a course is open to him, it may not be permissible for him to move the Magistrate for postponement of the trial till the appeal which is not one preferred by him, is disposed of. Hence, the request of the petitioner to adjourn the trial of C.C. No. 112 of 2007 was fully justified. There is no dispute that against the judgment dated 30.08.2007 in S.C. No. 517 of 2006, two appeals are pending CRL.R.P. NO. 2567/2008 7 before this Court as Crl. Appeal Nos. 1775 and 2453 of 2007. If so, the trial of C.C. No. 112 of 2007 before the court below shall stand stayed until the disposal of the aforesaid appeals by this Court.
This Crl.R.P. is disposed of as above.
V.RAMKUMAR, JUDGE.
rv