Madras High Court
Duraisamy vs Valliathal on 25 October, 2021
Author: R.N.Manjula
Bench: R.N.Manjula
Crl.O.P.No.717 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.10.2021
CORAM:
THE HONOURABLE Ms.JUSTICE R.N.MANJULA
Crl.O.P.No.717 of 2019
and
Crl.M.P.No.445 of 2019
Duraisamy ...Petitioner
Vs.
Valliathal ...Respondent
Prayer: Criminal Original Petition is filed under Section 482 of Criminal
Procedure Code, to call for the records relating to C.C.No.64 of 2016 on the
file of Judicial Magistrate Court, Kangayam, Tirupur District.
For Petitioner : Mr.V.Karthik (Senior Counsel)
For Respondent : Mr.R.Prabakar
for M/s.C.E.Pratap
ORDER
This Criminal Original Petition has been filed to call for the records relating to C.C.No.64 of 2016 on the file of Judicial Magistrate Court, Kangayam, Tirupur District.
1/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019
2. Mr.V.Karthik, learned Senior Counsel appearing for the petitioner has submitted that the respondent has made allegations of giving false evidence before the Sub-Court, Dharapuram in O.S.No.112 of 2003. He would further submit that such complaints can only be given by following the mandates of Section 195 (1) (b) of Cr.P.C and the private complaint filed by a private person like the respondent is not maintainable and it is violative of the procedures contemplated under law. In this connection, the learned senior counsel cited the following judgements:-
S.No. Dated Judgement Cause Title Citations
1. 23.11.201 Amarsang Nathaji Vs. Hardik (2017) 1 SCC 6 Harshadbhai Patel & others 113
2. 20.01.201 Kailash Mangal Vs. Ramesh (2015) 15 SCC 5 Chand 729
3. 04.02.201 Narendra Kumar Srivastava (2019) 3 SCC 9 Vs.State of Bihar and others 318
4. 21.12.201 Dr.S.K.Packiaraj Vs. T.V.Mathan (2018) 1 L.W. 7 Kumar (Crl.) 653 2/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019
3. The learned counsel for the respondent submitted that since the petitioner and the other accused had given false evidence before the Civil Court, he has got the right to invoke the jurisdiction of Judicial Magistrate Court, Kangayam, for initiating a criminal proceedings for the offences under Sections 120 (b), 193 and 209 of I.P.C.
4. It is a trite law that for taking action for giving false evidence and for punishing the person for the said Act, the special procedure that has contemplated under Section 195 (1) (b) of Cr.P.C should be complied with. For the purpose of convenience, the said provision is extracted hereunder:
“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:-
(a)(i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, 3/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following section of the Indian Penal Code, namely, sections 193 to 196, 199, 200, 205 to 211 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 complaint in writing of that Court, or of some other Court to which that Court is subordinate.”
5. Admittedly, no complaint has been given in writing by the Court before whom the alleged false evidence was deposed or by the Officer of the 4/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 said Court on authorization. The respondent who is a party to the civil proceedings before the Civil Court himself has initiated action by giving private complaint. The learned Judicial Magistrate, Kangayam, ought to have read the procedure prescribed under Section 195 Cr.P.C, before taking the case on file.
6. In the case of Amarsang Nathaji vs. Hardik Harshadbhai Patel and others reported in (2017) 1 SCC 113, the Hon'ble Supreme Court has highlighted the preconditions for initiating proceedings under Section 340 Cr.P.C. The relevant paragraph is extracted hereunder:
“5.There are two preconditions for initiating proceedings under Section 340 Cr.P.C.
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub- section (1) of Section 195 Cr.P.C, and
(ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.”
7. In the case of Kailashi Mangal vs. Ramesh Chand reported in 5/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 (2015) 15 SCC 729, the Hon'ble Supreme Court elaborated the reason as to why such special procedure has been contemplated and the same is extracted hereunder:
“7.Section 195(1)(b)(ii) Cr.P.C, bars the court from taking cognizance of any offence punishable under Section 193 I.P.C and other offences indicated thereo, unless, there is a written complaint made by the court concerned. The object of this section is to stop private persons from prosecuting the persons as amongst all wreaking vengeance the offence must have been committed in relation to any proceeding in the trial Court. Sections 191 and 192 IPC are the sections dealing with the offences of giving false evidence or fabricating false evidence. Punishment for intentionally giving false evidence in any stage of judicial proceeding is provided under Section 193 IPC. In the case at hand, the offence is alleged to have been committed by the appellant-accused under Sections 193 and 419 IPC. For an offence punishable under Section 193 IPC, the proceedings are to be initiated in accordance with Section 195 (1) (b) (ii) CrPC. The Magistrate could not have taken cognizance of the offence punishable under Section 193 IPC on a private complaint. For the alleged filing of false affidavit in the civil suit, the appellant was charged for the offence 6/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 punishable under Section 193 IPC, the respondent complainant ought to have moved the court concerned praying for initiation of appropriate proceedings against the appellant. The Magistrate could not have taken cognizance of the said offence punishable under Section 193 IPC.”
8. In the said judgement, the earlier judgement rendered in M.S.Ahlawat vs. State of Haryana, has been followed. In the said judgement, it is held that the provisions of Section 195 Cr.P.C are mandatory and no Court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section.
9. In the above judgements and the rest of the judgements in which the same point has been re-asserted would make it clear that the procedure prescribed under Section 195 Cr.P.C is not mere directory in nature but it is a mandatory one. The sole object for the special procedure is to prevent private persons to prosecute every witness who is deposing evidence by making allegations that he had given false evidence and settle 7/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 their score. It is at the option of the Civil Court which receive the evidence either to invoke or not its power to take action for giving false evidence before it. But in this case, the learned judicial Magistrate has wrongly taken the case on file without reading the very procedure laid down under Section 195 Cr.P.C. Since the mandatory procedure is violated the proceedings pending before the Judicial Magistrate Court, Kangayam, Tirupur District in C.C.No.64 of 2016, is violated and it is liable to be quashed. Even though the second accused has not filed any petition to quash the proceedings, the benefit of this order will be extended to the second accused as well.
10. In the result, this Criminal Original Petition stands allowed.
Consequently, connected miscellaneous petition is closed.
25.10.2021 Pns Speaking Internet:Yes Index:Yes 8/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 To:
Judicial Magistrate Court, Kangayam, Tirupur District.9/11
http://www.judis.nic.in Crl.O.P.No.717 of 2019 R.N.MANJULA.,J.
Pns Crl.O.P.No.717 of 2019 and Crl.M.P.No.445 of 2019 25.10.2021 10/11 http://www.judis.nic.in Crl.O.P.No.717 of 2019 11/11 http://www.judis.nic.in