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Crl. R.P. No. 712 of 2003 - Viswalal Vs. E.S.I. Corporation, 2013 (1) KLT 226 : 2012 (4) KLJ 424 : ILR 2012 (4) Ker. 509

posted Jul 10, 2013, 6:08 AM by Law Kerala   [ updated Jul 10, 2013, 6:11 AM ]


(2012) 273 KLR 315

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN

WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934`

Crl.Rev.Pet.No. 712 of 2003 ( )

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Crl.A.505/2001 of III ADDITIONAL SESSIONS COURT (ADHOC-1), THRISSUR CC.141/1997 of J.M.F.C.-III,THRISSUR

REVISION PETITIONER(S)/APPELLANT/ACCUSED::

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1. V.VISWALAL, PARTNER, M/S. BALARAM TILE WORKS, ERAVIPURAM, KOLLAM DISTRICT.

2. M/S. BALARAM TILE WORKS, ERAVIPURAM, KOLLAM DISTRICT.

BY ADV. SRI.B.MOHANLAL

RESPONDENT(S)/RESPONDENTS/COMPLAINANT & STATE::

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1. E.S.I. CORPORATION, REPRESENTED BY THE INSPECTOR, E.S.I. CORPORATION, THRISSUR.

2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

R1 BY ADV. SMT.T.D.RAJALAKSHMI R2 BY PUBLIC PROSECUTOR SMT.MADHU BEN

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DSV/-

"CR"

P.S.GOPINATHAN, J.

----------------------------------------

Crl.R.P.NO. 712 OF 2003

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Dated this the 3rd day of October, 2012

Head Note:-

Negotiable Instruments Act, 1881 - Section 138 - Partner of the firm - Once the cheque was signed by one of the partner and issued to discharge the liability of the firm, the parties who signed the cheque cannot turn round and say that he was not responsible for the conduct of the business - Partner of a firm, whether managing partner or not, who is operating the accounts of the firm cannot escape prosecution under Section 138 of the NI Act basing upon a cheque issued by the firm signed by the partner in discharge of the liability of the firm with a plea that he was not the managing partner or that he is not responsible for the conduct of the business of the firm - Such plea is available only for a partner who is not a signatory to the cheque.

O R D E R

Revision petitioners are the accused 1 and 2 in C.C.No.141/1997 on the file of the Judicial Magistrate of the First Class-III, Thrissur. The first respondent herein prosecuted the revision petitioners accusing offence under Section 138 of the Negotiable Instruments Act (NI Act), with a plea that the first revision petitioner is the managing partner of the 2nd revision petitioner firm and a sum of Rs.1,66,500/- was due to the first respondent from the firm towards the ESI contribution and in discharge of the same Exhibit P5 cheque dated 29.4.1997 for the said amount drawn on the Corporation Bank, Pallikummu Branch, Kollam was issued by the revision petitioners and that when Exhibit P5 was sent for collection it was returned dishonoured for insufficient funds as evidenced by Exhibit P6 and P7 memos. Despite the acknowledgement of the notice demanding discharge, as evidenced by Exhibit P9 and P10, the liability was not discharged.

2. The revision petitioners pleaded not guilty. Therefore they were sent for trial. On the side of the prosecution PWs 1 and 2 were examined. Exhibits P1 to P14 were marked. After closing the evidence for the prosecution, when questioned under Section 313 of the Code of Criminal Procedure, the revision petitioners took a plea of total denial. No defence evidence was let in. On appraisal of the evidence, the trial court arrived at a finding of guilty. Consequently, the revision petitioners were convicted and the first revision petitioner was sentenced to imprisonment till the rising of the court with direction to pay Rs.87,000/- as compensation to the first respondent, after taking note that during the pendency of the proceedings, Rs.86,000/- was remitted by the revision petitioners.

3. Aggrieved by the above conviction and sentence, Crl.A.505/2001 was preferred before the Sessions Judge, Thrissur. The III Additional Sessions Judge (Adhoc-I), by the impugned judgment, while confirming the conviction and the sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this revision petition is preferred.

4. I have heard Adv. Smt.P.S.Preetha, the learned counsel appearing for the revision petitioners and perused the judgments impugned.

5. The liability for which Exhibit P5 cheque was issued is not disputed. The fact that Exhibit P5 cheque was bounced for insufficient funds and despite the notice demanding discharge, the liability was not discharged, is also not disputed. The persuasive argument that was advanced by the learned counsel for the revision petitioner is that the first revision petitioner was not the managing partner and there is no pleading to that effect and therefore the first revision petitioner is not liable to be prosecuted. In support of her argument the learned counsel relied upon the decision reported in 2008 (2) KLT 983 (SC) Paresh P. Rajda v. State of Maharashta. Going by the facts of the case and the reported decision, I find the precedent thereon has no application to the case on hand because it is not disputed that Exhibit P5 cheque was signed by the first revision petitioner. Had he no responsibility for the conduct of the business of the firm, the cheque would not have been signed and issued by him. The fact that the first revision petitioner is the partner of the firm is also admitted. Once the cheque was signed by one of the partner and issued to discharge the liability of the firm, the parties who signed the cheque cannot turn round and say that he was not responsible for the conduct of the business. Suppose he was not a signatory, the argument would have been good. The fact that the revision petitioner as partner of the firm signed the cheque and he was operating the account of the firm itself is sufficient enough to conclude that the revision petitioner was a partner responsible for the conduct of the business of the 2nd revision petitioner firm which had statutory liability with 1st respondent. Partner of a firm, whether managing partner or not, who is operating the accounts of the firm cannot escape prosecution under Section 138 of the NI Act basing upon a cheque issued by the firm signed by the partner in discharge of the liability of the firm with a plea that he was not the managing partner or that he is not responsible for the conduct of the business of the firm. Such plea is available only for a partner who is not a signatory to the cheque. In this case, it is specifically pleaded that the first revision petitioner signed the cheque on behalf of the firm. First revision petitioner does admit the signing of the cheque. So, he cannot escape the prosecution with a pela that he was not responsible for the conduct of the business or that there is no pleading to that effect. As I mentioned earlier, the issuance of the cheque, dishonouring of the same for want of sufficient funds, demand for discharge and the failure to discharge the liability are not disputed. Therefore, the prosecution is perfectly sustainable. No error, illegality or impropriety is seen committed by the courts below so as to be rectified in revision. Revision petition is devoid of merits.

In the result, revision petition is dismissed. The trial court shall see the execution of sentence and report compliance. The amount already in deposit shall be given credit to. The first revision petitioner is granted two months time to remit the balance.

Sd/- P.S.GOPINATHAN JUDGE

/True copy/ P.A.To Judge DSV/-


Crl. R.P. No. 1112 of 2012 - Loid Jude Manakkat Vs. State of Kerala, 2013 (2) KLT 931 : 2013 (2) KHC 698

posted Jul 9, 2013, 3:18 AM by Law Kerala   [ updated Jul 9, 2013, 3:19 AM ]


(2013) 306 KLR 939

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR

FRIDAY, THE 14TH DAY OF SEPTEMBER 2012/23RD BHADRA 1934

Crl.Rev.Pet.No. 1112 of 2012 ()

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CRMP.602/2012 of J.M.F.C.-II, CHERTHALA CR.NO.595/2010 OF AROOR POLICE STATION

REVISION PETITIONER(S)/IST ACCUSED:

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LOID JUDE MANAKKAT MANAKKAT HOUSE, AROOR P.O, ALAPPUZHA DISTRICT.

BY ADVS.SRI.S.SREEKUMAR (SR.) SRI.P.MARTIN JOSE SRI.SAJU WAHAB SRI.P.PRIJITH

RESPONDENTS/COMPLAINANT(S):

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1. THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.

2. M.C.XAVIER S/O.CHEEKU, MANAKKAT HOUSE, AROOR P.O CHERTHALA, ALAPPUZHA DISTRICT, KERALA PIN 688 534.

R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN

THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-07-2012, THE COURT ON 14-09-2012 PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1112 of 2012 ()

APPENDIX

PETITIONER'S EXHIBITS

  • ANNEXURE I: TRUE COPY OF PLAINT IN OS NO.17/2009 OF SUB COURT, CHERTHALA.
  • ANNEXURE II: TRUE COPY OF COMPLAINT FILED BY THE REVISION PETITIONER BEFORE THE AROOR POLICE STATION.
  • ANNEXURE III: TRUE COPY OF RECEIPT ACKNOWLEDGING THE RECEIPT OF COMPLAINT.
  • ANNEXURE IV: TRUE COPY OF COMPLAINT SUBMITTED BY THE 2ND RESPONDENT BEFORE THE AROOR POLICE STATION.
  • ANNEXURE V: TRUE COPY OF CMP NO.9370/2010 FILED BY THE 2ND RESPONDENT BEFORE THE JFCM COURT, CHERTHALA ON 28.10.2010.
  • ANNEXURE VI: TRUE COPY OF NOTICE ISSUED TO THE DEFACTO COMPLAINANT.
  • ANNEXURE VII: TRUE COPY OF FINAL REPORT IN CRIME NO.595/10 OF AROOR POLICE STATION.
  • ANNEXURE VIII: TRUE COPY OF PETITION FILED by the REVISION PETITIONER BEFORE THE JFCM COURT, CHERTHALA.
  • ANNEXURE IX: TRUE COPY OF NOTICE ISSUED TO THE DEFACTO COMPLAINANT BY THE JFCM COURT, CHERTHALA DATED 02.02.2012.
  • ANNEXURE X: TRUE COPY OF OBJECTION FILED BY THE ASSISTANT PUBLIC PROSECUTOR DTD. 28.02.2012.
  • ANNEXURE XI: TRUE COPY OF ORDER IN CRLMP NO.602/2012 IN CR.NO.595/2010 DTD.30.03.2012 OF JFCM II COURT, CHERTHALA.

RESPONDENTS' EXHIBITS : NIL // TRUE COPY // TKS P.S. TO JUDGE

"C.R"

C.T.RAVIKUMAR, J.

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Crl.R.P.No.1112 of 2012

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Dated 14th September, 2012

O R D E R

The revision petitioner was the petitioner in Crl.M.P.No.602 of 2012 on the file of the Court of the Judicial First Class Magistrate-II, Cherthala. Whether culpability could be attributed on the Investigating Officer and the officer who laid the final report, in a petition forwarded for investigation under section 156(3) of the Code of Criminal Procedure, on the ground of non-filing of a complaint against the defacto complainant for giving false evidence and also for misusing their officiality as public servants, in case, the report under section 173(2) Cr.P.C. on such complaint is a closure report dubbing the case as a mistake of fact? This question arises in the following factual matrix:-

The petitioner was arraigned as the first accused in Crime No. 595 of 2010 of Aroor Police Station under sections 447, 506(1), 294(b) and 427 read with section 34 of the Indian Penal Code, virtually registered at the instance of the second respondent herein. As a matter of fact, Annexure-V complaint filed by the second respondent herein before the Court of the Judicial First Class Magistrate-II, Cherthala was forwarded for investigation under section 156(3) Cr.P.C. and the aforesaid crime was registered pursuant thereto. After completing the investigation Annexure-VII report viz., a closure report, was filed before the learned Magistrate stating that it is a false case. On obtaining the copy of the said closure report Crl.M.P.No.602 of 2012 was filed by the revision petitioner herein mainly with the prayer to call the Investigating Officer and the officer who submitted the final report in Crime No.595 of 2010 of Aroor Police Station to report before the court as to the reasons why a complaint was not registered against the defacto complainant for giving false evidence and misusing their official power conferred on them as public servants, before any order is passed on the final report. After considering the said application the learned Magistrate dismissed that application as per the order dated 30.3.2012. This revision petition has been filed in the said circumstances with the prayer to set aside the order dated 30.3.2012 passed by the learned Magistrate in Crl.M.P.No.602 of 2012 in Crime No.595 of 2010 of Aroor Police Station and further, to direct Aroor Police to proceed against the second respondent under sections 182 and 193 of the Indian Penal Code.

2. Admittedly, the second respondent herein was not made a party, in Crl.M.P.No.602 of 2012 before the learned Magistrate. That apart, the prayer for direction to Aroor Police to proceed against the second respondent under sections 182 and 193 IPC was also not made therein. That petition was seriously opposed by the State by filing a detailed counter affidavit. After hearing both sides the learned Magistrate framed the point whether the prayer in the petition is allowable, for consideration.

3. Admittedly, Crime No.595 of 2010 of Aroor Police Station was registered on receipt of the complaint filed by the second respondent before the Court of the Judicial First Class Magistrate-II, Cherthala forwarded for investigation, under section 156(3) Cr.P.C. After completing the investigation in the above crime Annexure VII closure report was filed under section 173 Cr.P.C. The learned Magistrate also took note of the fact that the second respondent, the defacto complainant, was not made a party in Crl.M.P.No.602 of 2012 and observed that the attempt on the part of the revision petitioner herein was to get some orders behind the back of the defacto complainant. If the petition was bonafidely and genuinely made, he would have definitely impleaded the defacto complainant as a party to that application, it was observed. Such an observation was made, essentially, taking into account the fact that the allegation in the complaint is to the effect that the police officers had failed to register crime against the defacto complainant under sections 182 and 193 IPC. It was found by the learned Magistrate that in order to attract section 182 IPC it is incumbent on the complainant to specifically plead and prove the injury or annoyance caused to him. On perusing the averments in the petition the learned Magistrate also found that a civil dispute was, then pending between the revision petitioner herein and the second respondent herein. In this case, the respondents have registered the aforesaid crime against the revision petitioner herein and other co-accused, admittedly, pursuant to the receipt of the complaint forwarded for investigation under section 156(3) Cr.P.C. by the learned Magistrate. The prayer of the revision petitioner in Crl.M.P.No.602 of 2012 moved before the learned Magistrate, itself would reveal that the final report was not then, accepted by the learned Magistrate and the proceedings were also not then dropped. There can be little doubt that, in terms of the position of law, the learned Magistrate was to issue notice to the informant/defacto complainant and to afford him an opportunity of being heard at the time of consideration of the refer report for the purpose of deciding whether to accept the same. At any rate, no culpability can be attributed on the Investigating Officer or the superior officer who filed the final report on completion of such investigation for the reason that after finding the allegations in the private complaint as false they had not registered a crime against the defacto complainant. No specific provision has been brought to my notice making it mandatory for such officers to register a crime against the informant in such circumstances and making them liable for prosecution for such inaction. It is to be noted that the very prayer of the revision petitioner is to call respondents 1 and 2 therein to report the reasons as to why a complaint was not made against the defacto complainant for giving false evidence and misusing the official power conferred on them as public servants, before any order is passed on the final report. There is no rationale behind the prayer thus made. There can be no doubt with respect to the position of law that a final report is not binding on the court and the court has to make a judicial decision as to whether it should be accepted or not. That apart, I do not find any reason to interfere with the finding of the learned Magistrate that the action on the part of respondents 1 and 2 therein in registering a crime pursuant to an order passed by that court under section 156(3) Cr.P.C. and commencing, continuing and completing the investigation thereon and then submitting a final report could not form the basis for a complaint against them solely for the reason of not filing a complaint against the defacto complainant, on referring the case as false. As rightly, held by the learned Magistrate, revision petitioner has no locus standi to dictate the police to register a crime or to file a complaint against the defacto complainant. No provision of law has been brought to my notice mandating that in such circumstances it is incumbent on the Investigating Officer or the officer laying the final report (closure report) to file a complaint against the defacto complainant for giving false evidence and misusing their official position as public servants.

4. The very prayer of the revision petitioner to call for such reasons, before any order is passed on the final report cannot said to be made without any purpose. In view of the decision of the Hon'ble Apex Court in Bhagawant Singh v. Commissioner of Police (AIR 1985 SC 1285) when a Magistrate gets a negative report he has to choose between one of the following four courses:-

1. To accept the report and drop the proceedings.

2. To direct further investigation to be made by the police.

3. To investigate himself or refer for the investigation to be made by another Magistrate under section 159 Cr.P.C.

4. To take cognizance of the offence under section 200 as a private complaint which the materials are sufficient in his opinion and if the complainant is prepared for that course.

The procedures to be adopted by a Magistrate when a final report which happens to be a refer report is made by an officer of a Police Station under Section 173(2) Cr.P.C. have been dealt with in detail by this Court in the decision in Parameswaran Nair v. Surendran (2009 Crl.L.J. 2762 (Ker.). No doubt, it is realising that such courses are open to the learned Magistrate on receipt of a negative report that the revision petitioner sought for the specific prayer to call for such report carrying reasons for non-filing of a complaint or non-registration of a crime, before any order is passed on the final report. In the circumstances, I do not find any impropriety in the observation made by the learned Magistrate that the attempt on the part of the revision petitioner was to get some orders behind the back of the defacto complainant. In this context, it is also to be noted that the revision petitioner who filed Crl.M.P.No.602 of 2012 without making the defacto complainant a party to it filed this revision petition making the defacto complainant a party. While challenging the legality and sustainability of the order passed by the learned Magistrate in Crl.M.P.No.602 of 2012 the revision petitioner made the defacto complainant a party viz., as the second respondent to this revision petition but, sought for a prayer which is distinct and totally different from the prayer that was made in Crl.M.P.No.602 of 2012 in Crime No.595 of 2010 of Aroor Police Station before the learned Magistrate and upon which the impugned order dated 30.3.2012 was passed. In this revision petition, the prayer made is for setting aside the impugned order passed by the learned Magistrate in Crl.M.P.No.602 of 2012 and for a further direction to the Aroor police to proceed against the second respondent under sections 182 and 193 IPC. The second limb of the prayer was conspicuously absent in Crl.M.P.No.602 of 2012. It is also pertinent to note that while challenging the order in Crl.M.P.No.602 of 2012 the revision petitioner has not made respondents 1 and 2 in that Crl.M.P. as parties to this revision petition. At any rate, the revision petitioner is not justified in making the prayer in this revision petition to direct the police to register a crime against the second respondent for offences under sections 182 and 193 IPC, especially when the learned Magistrate is to consider the refer report and to decide which course that is open to choose/has to be chosen in the light of the decision in Bhagawant Singh's case (supra). While considering the tenability of the said prayer made in this revision petition it is apposite to refer to Sections 182 and 193 of the Indian Penal Code and also Section 195 Cr.P.C. Section 182 I.P.C. deals with the punishment for giving to any public servant any false information, with intent to cause public servant to use his lawful power to the injury of another person and Section 193 I.P.C. deals with the punishment for giving false evidence in any stage of a judicial proceeding or for fabricating false evidence for the purpose of being used in any stage of a judicial proceeding. True that an investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice under Explanation 2 to Section 193 I.P.C. The section makes only a positive act of giving false information punishable and at any rate, the section does not require that action must always be taken. An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice under Explanation 3 to Section 193 I.P.C. Now, let us see Section 195 Cr.P.C. Section 195(1)(a)(i) reads thus:-

"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

..............................

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;"

Section 195(1)(b)(i) reads thus:-

"(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

........................

except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate."

The object of the specific provisions under Section 195 Cr.P.C. is to protect persons from being unnecessarily harassed by vexatious prosecution in retaliation. A perusal of the section would make it abundantly clear that the right to prosecute in cases falling under Section 182 I.P.C. which covered by Section 195 Cr.P.C. is vested only in public servant concerned or of some other public servant to whom he is administratively subordinate. Cognizance could be taken by the Magistrate in such case/cases covered by Section 195(1)(a)(i) only on a formal complaint in writing duly presented by a public servant or his superior and not in otherwise. So also a perusal of Section 195(1)(b)(i) would reveal that it limits the power of taking cognizance under Section 190 Cr.P.C., only on a complaint in writing by the court mentioned therein or by such officer of the court as that court may authorise in writing in that behalf or some other court to which that court is subordinate. In short, it is to be safely concluded that it is for the public servant concerned or for the public servant to which he is subordinate who is authorised to make a complaint if he is of the opinion that a complaint is to be filed. So also, the right to prosecute for offences falling under Section 193 I.P.C. covered by Section 195(1)(b)(i) Cr.P.C. is with the concerned court or under its authorisation in writing in that behalf by such officer of that court or with some other court to which that court is subordinate. In short, I have no hesitation to hold that in such cases covered by the bar of Section 195 Cr.P.C. there is absolutely no scope for filing a private complaint. The embargo in Section 195 Cr.P.C. takes away the right to prosecute in respect of the aforesaid offences by way of filing a private complaint. That be so, what cannot be done directly cannot be done or permitted to be done indirectly. Going by Section 195 Cr.P.C. no court shall take cognizance except in the manner contemplated by Section 195 Cr.P.C. and consequently, no jurisdiction to refer the case under Section 156(3) Cr.P.C. to the police for investigation or to issue a direction to proceed under the aforesaid sections to the police on a private person's complaint. In view of the forgoing reasons I do not find any error, illegality or impropriety warranting interference in exercise of the revisional jurisdiction. The petitioner is not entitled to the reliefs sought for.

This revision petition is liable to fail and accordingly, it is dismissed.

Sd/-

C.T.RAVIKUMAR Judge

TKS


Crl. R.P. No. 703 of 2001 - Thomas Vs. State of Kerala, 2013 (1) KLT SN 99 (C.No. 83) : 2012 (4) KHC 893

posted Mar 11, 2013, 3:40 AM by Law Kerala   [ updated Mar 11, 2013, 3:41 AM ]

(2012) 279 KLR 575

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN

FRIDAY, THE 9TH DAY OF NOVEMBER 2012/18TH KARTHIKA 1934

Crl.Rev.Pet.No. 703 of 2001 ( )

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CRA.158/2000 of ADDL.D.C. & ADDL.MACT,ALAPPUZHA. CC.173/2000 of J.M.F.C., RAMANKARI

REVISION PETITIONER(S):

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THOMAS, S/O. THOMAS MOOLAKALATHIL VEEDU CHINGAVANAM, NATTAKOM, KOTTAYAM.

BY ADVS.SRI.LLOYD JOSEPH VIVERA SRI.C.A.CHACKO

COMPLAINANT(S):

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STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

BY PUBLIC PROSECUTOR SRI. ROY THOMAS.

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: JJJ

N.K. BALAKRISHNAN, J.

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Crl. R.P. No: 703 of 2001

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Dated this the 9th day of November, 2012

Head Note:-

Criminal Procedure Code, 1973 - Sections 251 & 354(4) - Indian Penal Code, 1860 - Sections 279, 337 & 338 - contention that there was a practice in the Magistrate's court sentencing such accused involved in accident cases only with fine and that is why the petitioner happened to plead guilty - the practice of awarding only flea bite sentence, when vehicular traffic is registering galloping growth, deprecated.

Held:- What is required under section 251 of Cr.P.C. is that when the accused appears in a summons case the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. The contention that the petitioner was unaware of the consequence of the plea was rightly discountenanced by the learned Sessions Judge. It was not a petty case. He was aware of the fact that the case against him is that he, as the driver, drove the vehicle in a rash or negligent manner and caused simple hurt and also grievous hurt to the victims. The contention that he was under the impression that he would be let off, on payment of fine only, is also unacceptable. The punishment prescribed for the offence under section 338 of IPC is imprisonment which may extend to two years or with fine which may extend to Rs.1,000/- or with both. If such rash or reckless drivers are let off by sentencing them only to fine, it would have no deterrent effect. The judicial discretion is a "discretion which is informed by tradition, methodised by analogy and disciplined by system". The court cannot turn Nelson's eye to the imperative of awarding the sentence commensurate with the gravity of the offence; especially taking note of the severity of rashness, the degree of carelessness and also the seriousness of the consequences which followed. The Magistrate cannot overlook the provision contained in section 354(4) of Cr.P.C. which provides that when a court imposes a sentence of imprisonment for a term of less than three months for an offence punishable with imprisonment for a term of one year or more, the court shall record its reasons for awarding such a sentence. That should certainly alert and persuade the Magistrate to award proper sentence bearing in mind the legislative mandate contained in section 354(4) of Cr.P.C.

O R D E R

The petitioner was charged for offences under sections 279, 337 and 338 of IPC. When he appeared before court, he pleaded guilty. Since the plea was found to be made by the accused voluntarily, his plea was accepted and the learned Magistrate found the petitioner guilty and convicted him of those offences and he was sentenced to simple imprisonment for fifteen days and a fine of Rs.500/- for the offence under section 338 of IPC. Besides, he was also sentenced to pay a fine of Rs.1,000/- for the offence under section 279 of IPC. No separate sentence was awarded for the offence under section 337 of IPC.

2. The appellant filed appeal before the Sessions Judge contending that he was not aware of the consequence of the plea of guilt made by him and that he was not told that he would be sentenced to imprisonment. The appeal filed by him was dismissed by the learned Sessions Judge.

3. What is required under section 251 of Cr.P.C. is that when the accused appears in a summons case the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has any defence to make. If the accused pleads guilty, the Magistrate shall record the plea and may, in his discretion, convict him thereon. The contention that the petitioner was unaware of the consequence of the plea was rightly discountenanced by the learned Sessions Judge. It was not a petty case. He was aware of the fact that the case against him is that he, as the driver, drove the vehicle in a rash or negligent manner and caused simple hurt and also grievous hurt to the victims. The contention that he was under the impression that he would be let off, on payment of fine only, is also unacceptable. The punishment prescribed for the offence under section 338 of IPC is imprisonment which may extend to two years or with fine which may extend to Rs.1,000/- or with both.

4. The contention that the Magistrate could have sentenced the petitioner only with fine, as the accused pleaded guilty, is also untenable. It is not a case of plea bargaining. The learned Sessions Judge has pointed out that the appellant did not file any affidavit stating that he did not understand the particulars of the charge read over to him or that he was not aware of the consequence of the plea of guilt made by him. It was also observed by the learned Sessions Judge that the statement of the accused, recorded by the learned Magistrate, would show that before imposing sentence the appellant was asked whether he had anything to say about the sentence. Though the appellant pleaded for mercy, it appears, considering the fact that the offences include section 338 of IPC, he was sentenced to simple imprisonment for fifteen days.

5. The contention that there was a practice in the Magistrate's court sentencing such accused involved in accident cases only with fine and that is why the petitioner happened to plead guilty is also unacceptable. This court and the apex court, on several occasions, deprecated the practice of awarding only flea bite sentence, when vehicular traffic is registering galloping growth. If such rash or reckless drivers are let off by sentencing them only to fine, it would have no deterrent effect. The judicial discretion is a "discretion which is informed by tradition, methodised by analogy and disciplined by system". The court cannot turn Nelson's eye to the imperative of awarding the sentence commensurate with the gravity of the offence; especially taking note of the severity of rashness, the degree of carelessness and also the seriousness of the consequences which followed. The Magistrate cannot overlook the provision contained in section 354(4) of Cr.P.C. which provides that when a court imposes a sentence of imprisonment for a term of less than three months for an offence punishable with imprisonment for a term of one year or more, the court shall record its reasons for awarding such a sentence. That should certainly alert and persuade the Magistrate to award proper sentence bearing in mind the legislative mandate contained in section 354(4) of Cr.P.C.

6. In Mohana Sreekumaran Nair v. State of Kerala 1986 K.L.T. 504 it was held by this Court :

"A tendency is seen exhibited by the trial Magistrates in avoiding substantive imprisonment to offenders who are found guilty of the said offence. If persons driving vehicles inculcate a feeling that they can get away by paying some money as fine even in cases where reckless driving results in the deaths of innocent victims, the deterrent effect of sentencing policy disappears and it would tend those drivers to continue their reckless driving. By this it should not be misunderstood that in appropriate cases Magistrates shall have no discretion in imposing a sentence of fine alone. The legislature in section 354(4) of the Code of Crl. Procedure has manifested its intention that for offences punishable with imprisonment for a term of one year or more the courts must impose a sentence of imprisonment of more than three months unless reason for awarding a lesser sentence is recorded. This provision makes it clear that sentence of imprisonment is the rule and sentence of fine is only exception. In a country like ours where the roads are impoverished and the traffic system ill-organised, roads full of pedestrians including school going children who are untrained in traffic rules, the drivers of motor vehicles should always bear in mind the hazards involved in reckless driving. A fear of consequences for him if he causes death of another is an impelling psychological impulse to drive carefully. If he entertains a belief that the only consequence would be to pay a few rupees alone, he may not mind taking a chance of resorting to rash driving."

The observations made by this Court in the aforesaid decision cannot be lost sight of.

7. It was held by the Supreme Court in Dalbir Singh v. State of Harayana (2000) 5 SCC 82 thus:

"When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic."

These principles were reiterated in B. Nagabhushanam v. State of Karnataka (2008) 5 SCC 730.

8. In the resent decision of the apex Court in State of Punjab v. Balwinder Singh (2012) 2 SCC 182 it has been held:

"For lessening the high rate of motor accidents due to careless and callous driving of vehicles, the courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence if the prosecution is able to establish the guilt beyond reasonable doubt."

Therefore the contention that the petitioner should have been let off by awarding only fine, cannot be sustained at all. The fact that the accused pleaded guilty is no reason for the Magistrate to award lesser sentence ignoring the mandate contained in Section 354(4) of Cr.P.C.

9. If, actually, the accused intended to opt for plea bargaining as per Chapter XXI A, then the accused has to file an application under section 265B of Cr.P.C. in which case the learned Magistrate has to dispose of the same following the guidelines contained in Section 265 C to 265 H of Cr.P.C. The prosecution contends that under section 265E, if the court finds that the offence committed by the accused is not covered by clause (b) or clause (c) then, it may sentence the accused to one- fourth of the punishment provided or extendable, as the case may be, for such offence. Here the accused did not opt for plea bargaining.

10. It is seen that the learned Magistrate has followed the procedure correctly. Plea was made by the accused voluntarily. However, the sentence can be slightly modified.

11. In the result this Criminal Revision Petition is disposed of as follows: The conviction is confirmed. The substantive sentence awarded for the offence under section 338 of IPC will stand reduced to simple imprisonment for eight days. In all other aspects the conviction and sentence passed by the court below will stand confirmed. The learned Magistrate will take steps to execute the sentence immediately on receipt of the copy of this Order.

Sd/- N.K. BALAKRISHNAN, JUDGE

//True Copy// P.A. to Judge jjj


Crl. R.P. No. 1360 of 2007 - Muralidharan Nair Vs. Saju M. Antony, (2012) 279 KLR 301 : 2013 (1) KLT SN 8 (C.No. 8)

posted Jan 16, 2013, 2:03 AM by Law Kerala   [ updated Jan 16, 2013, 2:04 AM ]

(2012) 279 KLR 301 (CR)

IN THE HIGH COURT OF KERALA AT ERNAKULAM 


PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN 

THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934 

Crl.Rev.Pet.No. 1360 of 2007 ( ) 

-------------------------------- 

CC.35/2005 of J.M.F.C.-II (MOBILE),ALAPPUZHA 


REVISION PETITIONER(S): 

---------------------- 

V.MURALIDHARAN NAIR, S/O.VELAYUDHAN PILLAI, SUPERINTENDENT OF POLICE NARAKAPARAMBU HOUSE, PURAVEEDU P.O., ALLEPPEY-9. BY ADV. SRI.S.SREEKUMAR 

COMPLAINANT(S): 

--------------- 

1. SAJU.M.ANTONY S/O ANTONY, KOZHIPPARAMPIL HOUSE, MULLAKKAL, ALLEPPEY. 
2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 
BY ADV. SRI.C.S.MANU FOR R1 PUBLIC PROSECUTOR SMT. M.T. SHEEBA 

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 


N.K. Balakrishnan, J. 

................................................. 

Crl.R.P. No. 1360 of 2007 

.................................................. 

Dated: 8-11-2012 

Head Note:-

Criminal Procedure Code, 1973 - Section 197 - Public Servant - Circle Inspector of Police - Explanatory Note to S.R.O. No. 1211/1977 - the protection was extended to all members of the Kerala Police Force charged with maintenance of public order - the finding entered by the learned Magistrate that the accused persons are not entitled to protection under Section 197 (2) of Cr.P.C, solely on the ground that they are not removable by the Government, cannot be sustained. 
Criminal Procedure Code, 1973 - Section 197 - Public Servant - Circle Inspector of Police - Explanatory Note to S.R.O. No. 1211/1977 - The intention behind in affording protection under Sec. 197 is to prevent public servants being unnecessarily harassed. The Section is not restricted only to cases anything purported to be done in good faith, for, a person who ostensibly acts in execution of his duties still purports so to act, although he may have a dishonest intention. The offence alleged should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. 
Criminal Procedure Code, 1973 - Section 197 - Public Servant - Circle Inspector of Police - Explanatory Note to S.R.O. No. 1211/1977 - What is to be considered is whether the act alleged against the petitioner was either in discharge of his official duty or in the purported discharge of his official duty. The importance is not on the nature of the act alleged but whether the act allegedly done was in the discharge of his official duty or in the purported discharge of his official duty. 

ORDER 


The petitioner is the first accused in C.C. No. 35 of 2005 on the file of the J.F.C.M. II, Alappuzha. Based on a private complaint, cognizance was taken by the learned Magistrate against the petitioner (C.I. of Police) and two others, (the S.I. and one Constable) alleging offence under Sec. 326 read with Sec. 34 I.P.C. Cognizance was taken and process was issued to the accused. That order was challenged before this Court in Crl. M.C. No. 3148/2000. That petition was dismissed holding that the accused can raise all those contentions and plead for discharge under Sec. 245 of Cr.P.C. Evidence on the side of the complainant under Sec. 244 Cr.P.C. was recorded. The petitioner contended that the cognizance taken without sanction under Sec. 197 Cr.P.C. is bad in law since the petitioner was then working as Circle Inspector of Police and that the act complained of was done in discharge of his official duties or while purporting to act in the course of the official duties. 


2. The learned Magistrate then observed that the question as to the requirement of sanction under Sec. 197 of Cr.P.C. can be raised as a point and considered later at the time of final argument. The petitioner again approached this Court by filing Crl.M.C. No. 477 of 2007. This Court held that when the accused raised an objection that the cognizance taken against him is bad for the reason that it offends Sec. 197 of Cr.P.C., it is impermissible for the Court to relegate consideration of that question at a later stage since, if permitted, it would render sterile the protection under Sec. 197 Cr.P.C. Thus, the order passed by the learned Magistrate was set aside. The Magistrate was directed to consider the petition filed by the petitioner/accused for discharge under Sec. 245 Cr.P.C. 


3. The learned Magistrate again considered the question and passed the impugned order on 22-3-2007. It was held by the learned Magistrate that the appointing authorities of the Circle Inspectors, the Sub Inspectors and the Constables are respectively the Inspector General, Deputy Inspector General and the Superintendent of Police as per the Police Act and Rules and the petitioner can be removed from their office by their appointing authorities and no sanction from the Government is necessary to do so. Therefore, according to the learned Magistrate, the petitioner does not come under the category of 'public servant' referred to in Sec. 197 (1) Cr.P.C. As such the protection claimed by the petitioner under Sec. 197 was turned down by the learned Magistrate. Challenging that order the first accused/petitioner has again approached this Court. 


4. The learned Senior Counsel appearing for the petitioner submits that the complaint and the evidence on record would unequivocally prove that the offence alleged against the petitioner, even if committed was in the discharge of his official duties. It is vehemently argued that based on the complaint filed by one Sasikumar a crime was registered against the complainant (Ist respondent herein) and others as Crime No. 89/95 of South Police Station, Alleppey. It is contended that Sasikumar mentioned earlier was a lessee of a Saw Mill. The period of lease was one year. Despite the expiry of the lease, he did not surrender possession. It appears, since the lessor was interfering with the lessee's possession of the leased premises, the lessee filed a complaint to the Circle Inspector of Police and it was based on that complaint Crime No. 89 of 95 was registered. Hence the complainant (R1) was called to the police station. The allegation made in the complaint is that he was illegally detained and assaulted by the petitioner. 


5. The main thrust of the argument advanced by the learned Senior counsel for the petitioner is that since a crime was registered against the complainant and since the petitioner was conducting investigation in that case, the fact that the respondent (who was the accused in that crime) was taken to the police station and was questioned, cannot in any way attract any of the offences as alleged in the complaint filed by the respondent. 


6. It is pointed out that the request for discharge was rejected by the learned Magistrate not on the ground that the act complained of was not committed by him while acting or purporting to act in the discharge of his official duty but on the ground that the petitioner is not a public servant removable by the Government as mentioned in Section 197 of Cr.P.C. The decision of the Division Bench in Sarojini v. Prasannan - 1996 (2) KLT 859 has been relied on by the learned counsel for the petitioner in support of the submission that the petitioner being the Circle Inspector of Police is not a member of Kerala Subordinate Police Service but the Sub Inspector and Constables belong to that category. The power to dismiss or remove the Sub Inspector or Constable was conferred under the relevant provision of the Kerala Police Act and Rules, upon the I.G. , DIG, AIG and Superintendent of Police. Therefore, earlier so far as they are concerned, they were not public servants. But in view of the subsequent notification - Explanatory Note to S.R.O. No. 1211/1977 the protection provided to other officers was extended to all members of the Kerala Police Force charged with maintenance of public order. It was held in the decision in Viswambharan v. State of Kerala - 2010 (4) KLT 875 that the Sub Inspector of Police being a member of the Kerala Police, is entitled to the protection under Sec. 197 (2) Crl. P.C. Any way that is not required to be considered in this case since admittedly the petitioner was the Circle Inspector of Police at the relevant time who can be removed only by the Government. The finding to the contrary entered by the learned Magistrate cannot, thus be sustained. In the light of the Explanatory Note to S.R.O No. 1211/1997 the finding entered by the learned Magistrate that the accused persons are not entitled to protection under Section 197 (2) of Cr.P.C, solely on the ground that they are not removable by the Government, cannot be sustained. 


7. Sri.C.S. Manu, the learned counsel for the respondent would submit that, whether the petitioner was acting or purporting to act in the discharge of his official duty or whether he exceeded his jurisdiction, is actually a mixed question of fact. The main thrust of the argument is that law does not give any protective umbrage to such police officials to have custodial torture or to interfere with the civil dispute or civil matters. In the present case there was a civil dispute between the lessor and the lessee and as such based on the complaint alleged to have been made by Mr. Sasikumar, a crime should not have been registered. Even if a crime was registered, there was no necessity of calling the Ist respondent/complainant herein) to the police station and to detain him illegally and assault him. This according to the learned counsel amounts to custodial torture for which no protection is given under Section 197 (2) Cr.P.C. 


8. According to the learned counsel, since the evidence has already been adduced in the matter the proper course would be to direct the learned Magistrate to consider all the aspects at the time of final hearing, at the time of pronouncement of the judgment in the main case itself and not to have an order now on the single point as to whether the prosecution without sanction under Section 197 (2) is bad or not. According to Sri.C.S.Manu, since the facts are so interconnected it is not possible to hold that the act complained of was part of the official duty or a purported act of official duty so as to claim protection under Section 197 (2) Cr.P.C. 


9. The learned counsel for the petitioner would submit that in the light of the specific direction issued by this Court in Crl.M.C. No. 477/07, the Magistrate was bound to pass an order on merit whereas the impugned order only shows that the petitioners are not entitled to the protection under Section 197 because they are not officers removable by the Government. That finding is incorrect. The learned Magistrate has to enter a specific finding as to whether the act complained of, was done or purported to have been done in the discharge of his official duties. That question cannot be relegated to the final stage in view of the specific order passed by this Court in Annexure -I in Crl.M.C. 477/2007. The learned Magistrate has observed that on going through the records it could be found that the accused faced trial for offences punishable under Secs. 342, 323 and 325 read with Sec. 34 I.P.C. It was also mentioned that the evidence was adduced on both sides and that the case was posted for final hearing, and it was then the petition was filed by the accused contending that the petitioner and other accused are entitled to protection under Sec. 197 Cr.P.C. 


10. The learned counsel Sri.C.S. Manu would submit that in view of the specific observation made by the learned Magistrate that the cognizance was taken only under Sections 342, 323 and 325 read with 34 I.P.C. and since evidence was adduced by both sides and as the case was actually available for final disposal of the case, there would be no justification in issuing direction to the Magistrate again to hear on the question of sanction alone without considering all the aspects. 


11. According to the respondent, this is only another attempt made by the petitioner to further protract the final disposal of the case. The learned counsel submits that the cognizance against the petitioner was taken by the learned Magistrate in the year 2005. But in view of the fact that the earlier order passed by this Court directed that the learned Magistrate has to pass an order on the plea raised by the accused regarding the requirements of sanction, the learned Magistrate will pass an order on merit regarding the plea raised by the accused whether the prosecution without sanction under Sec. 197 Cr.P.C. is unsustainable or not. 


12. It is submitted by the learned counsel for the complainant/respondent that it is not every offence committed by a public servant that requires sanction for prosecution under Sec. 197 of the Code nor even every act done by him while he is actually engaged in the performance of his official duties. But if the act complained of is directly concerned with his official duties so that, if questioned, it could be claimed to have been done by virtue of the office then sanction would be necessary. That would be so, irrespective of whether it was in fact a proper discharge of his duties because that would really be a matter of defence on the merits. In the matter of grant of sanction under Sec. 197, the offence alleged to have been committed by the accused must have something to do or must be related in some manner with the discharge of the official duty. There must be rational nexus between the act complained of and the discharge of official duty . The act must bear such relation to the duty that the accused could lay a reasonable claim but not a pretended or fanciful claim that he did it in the course of the performance of his duty. 


13. It was held by the Supreme Court Shreekantiah Ramayya Munipalli v. State of Bombay 1995 (1) SCR 1177 dealing with the scope of Section 197, thus: 

"It is obvious that if S. 197 of the Code of Criminal Procedure is construed too narrowly it can never be applied, for of course it is no part of an official duty to commit an offence and never can be. But it is not the duty we have to examine so much as the act, because an official act can be performed in the discharge of official duty as well as in dereliction of it. The section has content and its language must be given meaning".

It was held by the Supreme Court in Rizwan ahmed Javed Shaikh v. Jammal Patel - (2001) 5 SCC 7 thus: 

"The real test to be applied to attract the applicability of S. 197 (3) is whether the act which is done by a public officer and is alleged to constitute a offence was done by the public officer while acting in his official capacity though what he did was neither his duty nor his right to do as such public officer. The act complained of may be in exercise of the duty or in the absence of such duty or in dereliction of the duty, if the act complained of is done while acting as a public officer and in the course of the same transaction in which the official duty was performed or purported to be performed, the public officer would be protected". 

14. The intention behind in affording protection under Sec. 197 is to prevent public servants being unnecessarily harassed. The Section is not restricted only to cases anything purported to be done in good faith, for, a person who ostensibly acts in execution of his duties still purports so to act, although he may have a dishonest intention. The offence alleged should have been committed when an act is done in the execution of duty or when an act purports to be done in execution of duty. The learned Sr. Counsel appearing for the petitioner submits that since a crime was registered against the complainant, the fact that he was taken to the police station and was questioned can only be an act done by the investigating officer (the petitioner) in execution of the duty. But the learned counsel for the complainant submits that if actually it is a case where the complainant was detained in the lock-up and was tortured then the said act cannot be given protective umbrella under Sec. 197 Cr.P.C. Therefore, what is to be considered is whether the act alleged against the petitioner was either in discharge of his official duty or in the purported discharge of his official duty. The importance is not on the nature of the act alleged but whether the act allegedly done was in the discharge of his official duty or in the purported discharge of his official duty. The decision cited supra was followed by the Constitution Bench of the Supreme Court in Sankaran Moitra v. Sadhna Das and Another - AIR 2006 SC 1599 = (2006) 4 SCC 584.


15. In Sankaran Moitra's case (supra) the Constitution Bench considered the question whether cognizance could be taken in a case where sanction under Sec. 197 (1) of the Code is necessary. It was held that as it is a condition precedent for taking cognizance, without sanction, cognizance cannot be taken. The learned counsel for the petitioner submits that in the light of the Constitution Bench decision the cognizance taken against the petitioner has to be quashed and that since pre-charge evidence has already been recorded, before proceeding further the said question has to be considered separately since that was the direction issued by this Court earlier. The learned Magistrate is bound by the direction issued by this Court. 


16. The learned counsel for the respondent / complainant has relied upon the decision in Choudhury Parveen Sultana v. State of West Bengal and Another - (2009) 3 SCC 398 where it was held that the underlying object of Sec. 197 Cr.P.C. is to enable the authorities to scrutinize the allegation made against a public servant to shield him/her against frivolous, vexatious or false prosecution initiated with the main object of causing embarrassment and harassment to the said official. But it was also held that if the authority vested in a public servant is misused for doing things which are not otherwise permitted under the law, such acts cannot claim the protection of Section 197 Cr.P.C. Therefore, According to the learned counsel for the complainant in respect of prosecution for such excesses or a misuse of authority no protection can be demanded by the public servant concerned. The question whether the act complained of was done by the petitioner in discharge of his official duties or in the purported discharge of his official duty, is a matter to be considered by the court below based on the averments in the complaint and the statements given by the witnesses etc. Since there was already a direction issued by this Court that that question cannot be relegated to the final stage of the case and that it should be answered before proceeding further, the learned Magistrate has to be directed to consider that point separately before proceeding further. 


17. In the result, this Crl.R.P. is disposed of as stated below:- The learned Magistrate is directed to consider the question whether the prosecution without sanction under Sec. 197 (2) Cr.P.C. is bad in law or not. Both sides shall be given opportunity of being heard in the matter. The learned Magistrate will hear and pass appropriate orders on the said question at the earliest. Dated this the 8th day of November, 2012. 


Sd/-N.K. Balakrishnan, Judge. 

ani. /truecopy/ P.S. toJudge 


Crl. R.P. No. 759 of 2004 - Narayanan Vs. State of Kerala, 2013 (1) KLT SN 7 (C.No. 6) : 2012 (4) KHC 862

posted Jan 15, 2013, 8:55 PM by Law Kerala   [ updated Jan 15, 2013, 8:55 PM ]

(2012) 280 KLR 577 (CR)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN 

WEDNESDAY, THE 28TH DAY OF NOVEMBER 2012/7TH AGRAHAYANA 1934 

Crl.Rev.Pet.No. 759 of 2004 ( ) 

------------------------------- 

CRA.485/2003 of ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM CC.210/2002 of J.M.F.C.,KOLENCHERRY 


REVISION PETITIONER(S)/APPELLANT/ACCUSED:: 

----------------------------------------- 

NARAYANAN, S/O. NANU, AGED 51, DEEPALAYAM VEETTIL @ PUTHRA, ARUVELIKKARA, KUNNATHUNADU PANCHAYATH, NO.6/145. 
BY ADVS.SRI.VARGHESE C.KURIAKOSE SRI.JACOB SEBASTIAN SRI.PRAVEEN K. JOY SRI.M.A.RASHID 

RESPONDENT (S)/RESPONDENT/COMPLAINANT & STATE:: 

----------------------------------------------- 

STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, MUVATTUPUZHA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. P.P.SMT. SAREENA GEORGE 

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-10-2012, THE COURT ON 28.11.2012 PASSED THE FOLLOWING: 

'CR' 

P.S. GOPINATHAN, J. 

...................................................... 

Crl.R.P.NO.759 OF 2004 

...................................................... 

Dated this the 28th day of November, 2012 

Head Note:-

Indian Evidence Act, 1872 - Sections 67 & 73 - Proof of signature and handwriting - Comparison of signature, writing or seal with others admitted or proved - In proving a signature or writing following modes can be adopted. i. By calling the person who signed or wrote the document. ii. By calling a person in whose presence the document was signed or written. iii. By calling a handwriting expert. iv. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. v. By comparing in Court the disputed signature or writing with some admitted signature or writing. vi. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. vii. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. viii. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e.g. by the scribe who signed on behalf of the executant. ix. By other circumstantial evidence. 
Indian Evidence Act, 1872 - Section 73 - Comparison of signature, writing or seal with others admitted or proved - the court has power to compare the disputed signature with the admitted signature - to compare the disputed signature or handwriting with the admitted signature or handwriting and formulating opinion are within the powers of the court. 

O R D E R 


The Sub Inspector of Police, Moovattupuzha police station in Crime No.595/2002 prosecuted the revision petitioner before the Judicial Magistrate of the First Class, Kolenchery accusing offences under Sections 465, 468 and 471 IPC. The learned Magistrate, after trial, found the revision petitioner guilty for offence under Section 468 IPC. Consequently, he was convicted and sentenced to rigorous imprisonment for three years while acquitting him for the other offences. 


2. Aggrieved by the above conviction and sentence, he preferred Crl.A.No.485/2003 before the Sessions Judge, Ernakulam. The Additional Sessions Judge (Adhoc-I), by the impugned judgment dated 31.1.2004, while confirming the conviction and sentence, dismissed the appeal. Assailing the legality, correctness and propriety of the above conviction and sentence, as confirmed in appeal, this revision petition is preferred. 


3. The prosecution case is that the revision petitioner was working as a Peon attached to the office of the Judicial Magistrate of the First Class-I, Muvattupuzha, wherein PW1 was the Presiding Officer. PW1 got Ext.P3 letter from the Manager, Kerala State Financial Enterprise, Mattanchery, who was examined as PW7, requesting verification of the salary certificate of the revision petitioner said to have been produced before PW7 offering the revision petitioner as a surety for a kuri in which one Kamarudeen was the subscriber. On verification, it was found that no such salary certificate was issued from the office to the revision petitioner. So request was made to PW7 to forward the salary certificate produced before PW7. Accordingly, PW7 forwarded Ext.P2 salary certificate to PW1. On verification, it was found that Ext.P2 was purporting to be a salary certificate issued by PW1 under his signature and seal of the court. Though the seal of the court and his designation seal affixed on Ext.P2 are that of originals, the signature of PW1 was found forged. Ext.P2 also contains the signature of the revision petitioner. The salary particulars recorded in Ext.P2 were found not true. Though PW1 made an attempt to get clarification from the revision petitioner, he was found absconding from the office. Therefore, PW1 sent Ext.P1 complaint to the Station House Officer, Moovattupuzha Police Station. PW9, a Head Constable, who was in charge of the police station, on getting Ext.P1, registered the case for which Ext.P6 First Information Report was prepared. PW6, the Sub Inspector, took over the investigation. After completing the investigation, charge sheet was submitted before the Judicial Magistrate of the First Class, Moovattupuzha. Under orders of the Chief Judicial Magistrate, Ernakulam, the case was transferred to the file of the Judicial Magistrate of the First Class-I, Kolenchery. 


4. Responding to the process issued, the revision petitioner entered appearance. After hearing either side, charge for the above said offences was framed, read over and explained to which the revision petitioner pleaded not guilty. Therefore, the revision petitioner was sent for trial. On the side of the prosecution, PWs 1 to 9 were examined and Exts.P1 to P6 were marked. After closing the evidence for the prosecution, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure. He denied the incriminating evidence and advanced a plea of total innocence. He further stated that he did'nt know to write English and that he had no connection with Ext.P2 and that he was falsely implicated. Though he was called upon to enter his defence, no defence evidence was adduced. On appraisal of the evidence, the learned Magistrate arrived at a conclusion of guilty. Accordingly, he was convicted and sentenced as above. 


5. I have heard Adv.Sri.Varghese Kuriakose, the learned counsel appearing for the revision petitioner and Smt. Sareena George, the learned Government Pleader. The learned counsel for the revision petitioner took me through the judgment impugned as well the evidence on record. 


6. PW1 had given evidence in support of the prosecution case. According to PW1, Ext.P2 salary certificate as that of PW1 was not issued from his office. The signature contained in Ext.P2 as that of PW1 is a forged one. The salary particulars recorded in Ext.P2 are not correct. Ext.P2 would contain the signature of the revision petitioner to which PW1 was well acquainted. It was further deposed that the Junior Superintendent of the office, who was examined as PW2, was the custodian of the seal of the court and the designation seal of PW1. Ext.P2 bears the court seal as well as the designation seal. 


7. PW2 would also depose that Ext.P2 was prepared as if issued from the office to the revision petitioner, but no such certificate was issued from the office and that the salary particulars stated in Ext.P2 are not correct. The signature contained in Ext.P2 as that of PW1 is a forged signature. The court seal and designation seal affixed are originals. PW2 is also acquainted with the signature of the revision petitioner. He would also depose that Ext.P2 contains the signature of the revision petitioner. 


8. PW3, a Lower Division Clerk in the establishment section, as well as PW4, a Typist, would depose that Ext.P2 was not issued from the office and that usually draft of a salary certificate prepared in the section of PW3 and would be got type written by PW4 and that Ext.P2 was not issued from their office. Both of them are harmonious that signature contained in Ext.P2 as that of PW1 is a forged signature though the seals are genuine. PWs 3 and 4 are not in a position to ascertain that Ext.P2 contains the signature of the revision petitioner. PWs 3 and 4 are also harmonious that the particulars of salary certified in Ext.P2 as that of the revision petitioner are not correct. 


9. PW7 would depose that Ext.P2 was produced before the office as if it is a genuine one issued in favour of the revision petitioner, who was offered as a surety for a kuri subscribed by one Kamarudeen, from the office of PW1 and that to ascertain the genuineness of Ext.P2, he wrote to PW1 and at the request of PW1, Ext.P2 was forwarded to PW1. 


10. Though Kamarudeen was cited as a witness, he could not be examined as he was reported abroad. 


11. The learned counsel for the revision petitioner did not dispute the prosecution case that Ext.P2 is a forged document. But the very contention is that it was not forged by the revision petitioner and he was falsely implicated. Going by Ext.P2, I find that it is styled as an employment certificate issued in a printed form supplied by the Kerala State Financial Enterprises Ltd. The salary particulars are certified under the seal of the court and signature of PW1. Below the salary particulars certified, it would contain an agreement by the revision petitioner signed by him agreeing that he is agreeable for recovery from the salary in the event the kuri instalments are defaulted. Below the agreement, there is agreement signed by PW1 with seal of the court that PW1 agrees to effect the recoveries for which the revision petitioner agreed. Reverse side of Ext.P2 is a printed application form signed by the revision petitioner offering himself as a surety. Both temporary and permanent address are also specifically stated. PWs 1 to 4 are harmonious that the signatures of PW1 in Ext.P2 are forged. On both sides, the revision petitioner had signed. The signatures are identified by PWs 1 and 2. From what is revealed out in evidence, it is crystal clear that Ext.P2 is a forged one produced as if genuine with intent to offer the revision petitioner as a surety for the kuri run by the establishment in which PW7 was the Manager and in which Kamarudeen was a subscriber. Suppose it was acted upon by PW7 as if genuine and the revision petitioner was accepted as a surety, prize money would have been parted to the subscriber. In the event of default of kuri instalment, the recovery could not be effected as PW1 may not agree for any such recovery for which he has not agreed. It would result to unlawful gain to the revision petitioner and wrongful loss to the Kerala State Financial Enterprises Ltd. Forgery for the purpose of cheating is apparent. 


12. To connect the revision petitioner with Ext.P2, the prosecution would rely upon his signature contained in Ext.P2. PWs 1 and 2 are harmonious that both of them are acquainted with the signature of the revision petitioner and that Ext.P2 contains the signature of the revision petitioner. They are also harmonious that the revision petitioner had very access to the seal of the court and the designation seal which were kept in the custody of PW2. The courts below found the revision petitioner guilty on assuming that since Ext.P2 contains the signature of the revision petitioner, Ext.P2 might have been forged by the revision petitioner after putting forged signature of PW1 and affixing the seal of the court and the designation seal. The evidence on record rules out the involvement of any person other than the revision petitioner for the forgery. Therefore, I find no error, illegality or impropriety committed by the courts in having such a finding. 


13. The learned counsel for the revision petitioner would submit that to conclude that Ext.P2 contained the signature of the revision petitioner, both lower courts had compared the signature of the revision petitioner with the admitted signatures. According to the learned counsel, the courts below should not have resorted to such a procedure in arriving at a conclusion of guilt against the revision petitioner. In support of the argument, the learned counsel placed reliance on the decisions reported in State (Delhi Administration) v. Pali Ram (AIR 79 SC 14), O. Bharathan v. K. Sudhakaran (1996 (2) SCC 704), Ajit Savant Majagvai v. State of Karnataka (1997 (7) SCC 110), Thomas Joseph v. Antony Jose (1998 (1) KLJ 418), K.R. Aravindakshan Nair v. M/s. Essen Bhankers, Pathanamthitta (2007 (2) KLJ 673) and Keshav Dutt v. State of Haryana (2010 (9) SCC 286). 


14. Carefully going through the evidence on record and the precedents referred, I find that the argument is devoid of merit because the conclusion of guilt arrived at against the revision petitioner in this case is not solely basing upon the comparison of signature by the courts below. The evidence of PWs 1 and 2 which I mentioned earlier would show that they are acquainted with the signature of the revision petitioner and they had in unambiguous terms deposed that the signature in Ext.P2 as that of the employee is that of the revision petitioner. Comparison of the signature of the revision petitioner contained in Ext.P2 with the admitted signatures contained in the vakalth, bail bond, etc was made by the courts below only to ascertain whether the evidence of PWs 1 and 2 is believable or not. In other way, the courts below compared the signature only in search of corroboration with the evidence of PWs 1 and 2. Conviction is not solely based upon such opinion formulated on comparing the signature. There is clinching evidence of PWs 1 and 2 apart from the opinion of the courts after comparing the signatures. 


15. Section 67 of the Indian Evidence Act deals with the proof of signature and handwriting of person alleged to have signed or written the document produced. It reads that if a document is alleged to be signed or said to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Section 67 does not prescribe the mode of proof of the signature or handwriting. Section 73 deals with the comparison of signature, writing or seal with others admitted or proved. I have gone through various commentaries on the Indian Evidence Act by the reputed authors. On a combined reading of both sections, and as clarified by various courts, I find that in proving a signature or writing following modes can be adopted. 

i. By calling the person who signed or wrote the document. 
ii. By calling a person in whose presence the document was signed or written. 
iii. By calling a handwriting expert. 
iv. By calling a person acquainted with the handwriting of the person by whom the document is supposed to be signed or written. 
v. By comparing in Court the disputed signature or writing with some admitted signature or writing. 
vi. By proof of an admission by the person who is alleged to have signed or written the document that he signed or wrote it. 
vii. By the statement of a deceased professional scribe, made in the ordinary course of business, that the signature on the document is that of a particular person. 
viii. A signature is proved to have been made if it is shown to have been made at the request of a person by some other person e.g. by the scribe who signed on behalf of the executant. 
ix. By other circumstantial evidence. 

Here in this case, as stated above, there is clinching evidence of PWs 1 and 2, who were acquainted with the signature of the revision petitioner, that the signature of the employee in Ext.P2 is that of the revision petitioner. Comparison in court is only one of the mode of proof. Since in this case, the court compared the signature only in search of corroboration with the evidence of PWs 1 and 2, I find nothing illegal or improper in appreciating the evidence by the courts below. In Ajit Savant Majagvai (supra), the Apex Court referring to earlier decision in State (Delhi Admn.) v. Pali Ram (AIR 1973 SC 14) had found that the court has power to compare the disputed signature with the admitted signature as the power is clearly available under Section 73 of the Evidence Act, which reads as follows: 

73.Comparison of signature, writing or seal with others admitted or proved. - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. 
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.  
This section applies also, with any necessary modifications, to finger- impressions. 

The above provision would show that to compare the disputed signature or handwriting with the admitted signature or handwriting and formulating opinion are within the powers of the court. In the above circumstance, I find that the judgment impugned is not liable to be interfered for the reason that the courts below had compared the disputed signature with the admitted signatures in search of corroboration with the evidence of PWs 1 and 2 and arrived at a conclusion in favour of the prosecution. In my opinion, such a course is unavoidable while critically scrutinizing the evidence of PWs 1 and 2. There is nothing wrong in expressing opinion of such comparison. Suppose there is no similarity, court can reject the oral evidence of PWs 1 and 2. If there is similarity, it is quite appropriate to believe Pws 1 and 2. That alone was done by the courts below which according to me within the powers of the court. In my anxiety to arrive at a just conclusion, I had also compared the signatures. I find nothing to diverge with the courts below. 


16. The learned counsel for the revision petitioner would further submit that PW6 had not properly investigated the case as he had admitted in cross examination that when he got Ext.P1 complaint, he believed that what is stated in Ext.P1 might be correct. It appears that PW6 had given such an evidence on assumption that Ext.P1 complaint was forwarded  to him by PW1 after PW1 satisfying the correctness of the allegations in Ext.P1. It is true that such a notion may prejudice the investigating officer. But in this case nothing was revealed out to show that such a prejudice, if any, had any way interfered with the fairness and impartiality in investigation. The only omission which I could see in the investigation is that the investigating officer had not sent the disputed signature and the admitted signature for an expert opinion. Such omission is not much relevant because of the credible evidence of PWs 1 and 2, who are well acquainted with the signature of the revision petitioner, identifying the signature of the revision petitioner in Ext.P2. In the above circumstance, I find that the conviction under challenge is based upon cogent evidence and there is no room for interference. 


17. Having due regard to the nature of the offence, I find that the sentence awarded is neither harsh nor disproportionate. Revision petitioner while working as a peon in a Magistrate's Court dared to forge the signature of the Magistrate. He doesn't deserve any leniency. Therefore, the sentence also requires no interference.


In the result, the revision petition fails. Accordingly, it is dismissed. The trial court shall see the execution of sentence and report compliance. Revision petitioner shall surrender before the trial court. 


Sd/- P.S. GOPINATHAN, JUDGE. 

cl /true copy/ P.S to Judge


Crl. R.P. No. 1875 of 2003 - Valliyoth Karunan Vs. State of Kerala, 2011 (1) KLT 478 : 2011 (1) KLJ 400 : ILR 2011 (1) Ker. 524

posted Jan 8, 2013, 3:20 AM by Law Kerala   [ updated Jan 8, 2013, 3:21 AM ]

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Thottathil B. Radhakrishnan, J.

Crl. Rev. Pet. No. 1875 of 2003

Decided On: 04.01.2011

Valliyoth Karunan

Vs.

State of Kerala

Head Note:-

Indian Penal Code, 1860 - Section 376 Indian Evidence Act, 1872 Sections 8, 114 and 118 - Victim is Schizophrenic - Incompetent to testify - The non-examination of the victim is not fatal to the prosecution, going by the proved situation of the victim. No lacuna in the prosecution evidence can be thrust on account of non-examination of a person who is incompetent to testify.

Indian Penal Code, 1860 - Section 376 Indian Evidence Act, 1872 Sections 8, 114 and 118 - Statement Recorded by Doctor - Evidentiary value of - Cause of the injury - When statement is recorded by the doctor in the course of public business and as an official act, it carries with it the presumption that it has been regularly performed.

Chronological List of Cases Referred:

  1. State of Maharastra Vs. Prakash, (1993) Supp. (1) SCC 653
  2. State of Maharastra Vs. Priya Sharma Maharaj, 1997 (4) SCC 393
  3. Mange Vs. State of Haryana, 1979 (4) SCC 349

For Petitioner: B.V. Joy Sanker &  Jacob Chacko

For Respondents/Defendant: Public Prosecutor

O R D E R

Thottathil B. Radhakrishnan, J.

1. The revision Petitioner stands convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 25,000/- in default of which, to undergo simple imprisonment for a further period of two years, he having been found guilty of an offence punishable under Section 376 of the Indian Penal Code. Such conviction and sentence imposed by the trial court is confirmed in appeal. Hence this revision.

2. The allegation against the accused is that at about 7:45 p.m. on 18.11.1995, he raped the victim, aged about 28 years then. The scene of occurrence is alleged to be the lane near a public road. The prosecution version is that, the victim, a maid servant in the house of PW4 was returning from a Temple; that she came to the shop of PW5 and enquired about the availability of bus and then went in the auto rickshaw of the accused, leading to her being raped by the accused. The accused then accompanied the victim to the residence of PW4, where the victim entered a toilet which is not attached to the house and bolted from inside; the accused informed the mother of the victim and few neighbours that the victim has locked herself up in the toilet; thereupon the neighbours forced the toilet open and found the victim unconscious; she was taken to the local hospital and from there to the Medical College hospital where she was admitted and treated; the victim told the doctor who examined her that it was the accused who ravished, which led to the injuries that were recorded by the doctor. The name of the accused has been recorded in Ext.P1, the medical examination report prepared by PW1, the doctor who recorded having found to fresh tear to the victim's hymen.

3. After adverting to and considering the legal evidence on record, the trial judge found the accused guilty. That has been confirmed in appeal. Examining the material evidence and the findings of the courts below, the question for consideration is as to whether those findings, conviction and sentence call for interference in revision.

4. During trial, the victim was called to tender evidence as PW10. She could not speak anything. She was disoriented. CW1 psychiatrist was examined in support of Ext.C1 report which showed the mental condition of the victim. She suffers from Schizophrenia and cannot remember past incidents. It is in this background that the evidence was considered by the courts below.

5. The continuous presence of the accused and his proved involvement even in attracting the attention of the neighbours, the mother and the sister of the victim to the toilet wherein the victim bolted herself and his accompanying the victim and others to the hospital are pointed out by his learned Counsel as strong circumstances which point to his innocence, for otherwise, he could have fled the scene of occurrence and had every chance of escaping even suspicion. His learned Counsel further argued that the victim being a Schizophrenic, there is abundant chance of her having hallucinations and also fanciful thoughts, including about sex, and this would have led to the injury to her hymen. He pointed out that there is no evidence at all, or even any allegation, of any struggle and of the victim having suffered any injury on account of that. He heavily relied on the fact that the chemical examination of the undergarments of the victim, recovered from the toilet, did not contain any scientific evidence regarding the presence of semen though the first information statement proceeds as if there was completion of sexual intercourse, including ejaculation. Reliance was also placed on the fact that there was no chemical examination of the vaginal smear of the victim.

6. The accused does not stand with any allegation against any of the witnesses including the mother and sister of the victim or even the victim, of having had any animosity towards him or any other reason for foisting the charge on him, who going by the materials, was a married man with two children aged around 11 and 6 years. He stood with a case of total denial of the allegations against him, but does not deny his presence as discernible from the material evidence.

7. PW4, for whom the victim worked as a maid, gave evidence about the victim proceeding to Parassinikadavu temple in the morning of the date of occurrence and the fact that there was no one in her house when the victim reached the toilet in that house and was found to have bolted herself therein. PW5 and PW6 testified of having seen the victim when she enquired in the shop of PW5 about the availability of bus. PW13 testified that he saw the victim in the company of the accused at about 7 p.m. in the lane near his house which is in the neighbourhood of the residence of PW4. It is not a matter of much dispute at the hands of the accused that he accompanied the victim to the house of PW4. The evidence of the other witnesses from the neighbourhood, as also the mother and sister of the victim, is to the effect that their attention was attracted and they came over to the residence of the PW4 on the basis of information given by the accused that the victim had bolted herself in the toilet and is not opening its door. The chain of events proved on the basis of the oral and circumstantial evidence till the opening of the bolted door of the toilet in PW4's house is that, on her return from the Temple, the victim boarded the auto rickshaw of the accused and was in his company till she locked herself in the toilet. The neighbours, the mother and the sister of the victim, on opening the toilet door, found her unconscious. She was taken to the hospital. There is really no serious challenge to this chain of events as emanating on the basis of the legal evidence on record. Even the cross-examination does not proceed unfolding a more probable defence version.

8. Vaginal tear coupled with such bleeding that prompted the medical officer not to rule out a case of rape, is sufficient in such a case, to evidence the invasion to the victim's body, to sustain a charge under Section 376 IPC, unless that possibility is ruled out by cogent and more dependable legal evidence. The medical evidence on record does not, in any manner, indicate that the victim had induced the injury to the hymen of her own, though there is a suggestion put on behalf of the accused that the recorded injury could be the result of some foreign object. That suggestion does not, by itself, shake the credibility of the opinion of the expert that the injury was attributable to rape.

9. Equally, the absence of other injuries on the victim's body is also not decisive. Use of physical force to overcome any resistance by the victim may not always be necessary. See State of Maharastra Vs. Prakash, 1993 Supp. (1) SCC 653, State of Maharastra Vs. Priya Sharma Maharaj, 1997 (4) SCC 393. More particularly so, when the victim is a mentally challenged person. Even in this aspect, there cannot be any hard and fast approach either way. It would depend on the emotional status of the victim at the time of assault. A predominant sense of fear that the assailant, or the event by itself, may induce on the victim would be sufficient to incapacitate the victim from resisting to the onslaught to her person. Such a situation would not lead to any inference of consensual sex. At any rate, the accused does not have such a defence version. His plea of total denial of the entire transaction and the bundle of allegations against him rules out any such probability.

10. The non-examination of the victim is not fatal to the prosecution, going by the proved situation of the victim. Ext.C1 corroborated by the testimony of CW1, the psychiatrist, categorically established that the victim is Schizophrenic; has such state of mind that prevents her from understanding the questions put to her and from giving rational answers to those questions, by reason of the disease of the mind. Coupled with that is the fact that the trial court had attempted to examine her as PW10, but found her incompetent to testify, being prevented from understanding the questions put to her. Therefore, in terms of Section 118 of the Evidence Act, she was incompetent to testify. No lacuna in the prosecution evidence can be thrust on account of non-examination of a person who is incompetent to testify.

11. That apart, non-examination of the prosecutrix is by itself not fatal. - see Mange Vs. State of Haryana, 1979 (4) SCC 349, dealing with the case of a deaf and dumb minor, who was not examined at trial.

12. With the aforesaid, what gains importance for consideration is the evidentiary value of the noting in Ext.P1 by PWI. The contents of Ext.P1 is corroborated by the testimony of its maker, namely, PWI. The cause of the injury to the hymen of the victim is recorded in Ext.P1 on the basis of the statement given by the victim to the doctor. That cause is not treated by the expert as improbable. There is a column prescribed in that official document for such entry. The reason for the injury could have also been mentioned to the doctor by the police or any other person. That has to be recorded separately. There is no such entry in the document in question. The maker of Ext.P1 has, in the document, attributed the statement regarding the assailant, to the victim. He is named therein. As already noticed, there is no circumstance pointed out, for the victim, her relatives or neighbours to attribute the allegations to the accused. When such statement is recorded by the doctor in the course of public business and as an official act, it carries with it the presumption that it has been regularly performed. Such presumption, in terms of illustration (e) under Section 114 of the Evidence Act, can be safely relied on and such presumption is not questionable in this case since the regularity of the official acts by the doctor in connection with the examination of the victim and the preparation of Ext.P1 is not in dispute.

13. Having found that in terms of Section 118 of the Evidence Act, the victim was incompetent to testify, the probative value of the statement made by her to PW1, the doctor who examined her needs to be considered. The victim's mother and neighbours found her unconscious inside the toilet. From there, she was removed to hospital and was examined in the Medical College. Even if it is assumed that she would have become conscious before reaching the Medical College, the emotional trauma of a 28-year-old unwed female, going to the hospital with injury to her private parts, would have necessarily dissuaded her from making any immediate complaint before she reached hospital. In the setting of a hospital, the doctor who examines the victim is one on whom, in the common course of natural events and human conduct, the victim would repose confidence and make a complaint relating to the crime. The fact that she made such a complaint and that the terms in which the complaint was made are relevant along with the circumstances under which it was made. Such fact becomes relevant in terms of Section 8 of the Evidence Act. See illustration (j) thereunder. PW1 doctor is not familiar with the accused. The victim was accompanied by different persons including her mother and sister. The victim named the accused "Karunan" as having ravished her. This conduct of the victim and such complaint made by her, as recorded by PW1 doctor, are relevant facts in terms of Section 8 of the Evidence Act.

14. Having regard to the aforesaid, there is no illegality or error in the appreciation of evidence by the courts below. The finding of guilt and the conviction therefore stands.

15. On the question of sentence, the courts below had focused on the material aspects. As noted by the appellate court, though the accused is a married person with a family, the victim is an unmarried rustic lady with a mentally challenged status. It was rightly observed by the appellate court that in view of the atrocity meted out to the unprotected victim and the relevant circumstances, the sentence imposed by the trial court warrants no interference. Rigorous imprisonment for five years and fine of Rs. 25,000/- in default, to undergo simple imprisonment for a further period of two years, appears to be a just and reasonable balancing on the scales of justice, having regard to the interests of the victim, including her family, the accused and the society; the prime stakeholders in such a case.

16. For the aforesaid reasons, this revision fails. In the result, the impugned conviction and sentence are confirmed and the revision is dismissed. The revision Petitioner is directed to appear before the court of first instance on 24.1.2011 to suffer sentence. Otherwise the court of first instance will take necessary steps to execute the sentence. The bail bond stands cancelled.


Crl. R.P. No. 324 of 2002 - M.O. Sajeevan Vs. V.M. Abbas, (2012) 271 KLR 149

posted Oct 3, 2012, 7:12 AM by Law Kerala   [ updated Oct 3, 2012, 7:13 AM ]

(2012) 271 KLR 149

IN THE HIGH COURT OF KERALA AT ERNAKULAM 


PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

THURSDAY, THE 24TH DAY OF NOVEMBER 2011/3RD AGRAHAYANA 1933 

Crl.Rev.Pet.No. 324 of 2002 ( ) 

------------------------------- 

CRA.835/2001 of COURT OF ADDL.SESSIONS JUDGE, N.PARAVUR CC.542/1998 of J.M.F.C.-II, ALUVA 


REVISION PETITIONER(S)/APPELLANT/ACCUSED:: 

----------------------------------------- 

M.O.SAJEEVAN, ANAKUZHIKKATTIL HOUSE, NOCHIMA, N.A.D. P.O., ALUVA. 
BY ADV. SRI.SAIBY JOSE KIDANGOOR 

RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:: 

---------------------------------------- 

1. V.M.ABBAS, S/O.MUHAMMED, VADAKKUMMURY VEEDU, ALUVA WEST VILLAGE, MUTTAM THAIKKATTUKARA, ALUVA. 
2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, ERNAKULAM. 
BY ADV. SRI.T.A.UNNIKRISHNAN FOR R1 BY P.P.SRI.K.K.SAIDALAVI 

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 


C.T.RAVIKUMAR, J. 

---------------------------- 

Crl.R.P.No.324 of 2002 

---------------------------- 

Dated 24th November, 2011 

Head Note:-

Negotiable Instruments Act, 1881 - Sections 138 & 139 - Whether admission of the signature in a cheque amounts to admission of execution of the cheque so as to attract the presumption? 
Held:- Admission of signature in a cheque would not amount to admission of execution of the said cheque. In view of the admission of the signature in the cheque would not absolve the complainant from his onus to prove the fact that the cheque in question was drawn and executed by its maker. 
Negotiable Instruments Act, 1881 - Sections 138 & 139 - Whether for a successful prosecution of the offence under N.I. Act the complainant should prove the existence of a legally enforceable debt? 
Held:- The conviction mainly relying on the presumption available under section 139 of the N.I. Act, on account of the failure on the part of the complainant to prove that there was a legally enforceable debt cannot be sustained. When the very transaction itself is disputed and some evidence to that effect was adduced by the accused, a conviction merely based on the presumption available under section 139 of the N.I. Act cannot be sustained. The complainant has to be saddled with the liability to prove that there was a legally enforceable debt between the complainant and the accused and it is for discharging the said debt that the cheque in question was drawn and executed. When the accused had adduced evidence capable of casting doubt with respect to the case of the complainant the complainant cannot solely rely on the presumption available under Section 139 of the N.I. Act whilst he has to adduce evidence to prove existence of a legally enforceable debt and also the fact that the cheque in question was drawn and executed for discharging the said debt owing to him. 


ORDER 


Whether admission of the signature in a cheque amounts to admission of execution of the cheque so as to attract the presumption under section 139 of the Negotiable Instruments Act (for short "N.I. Act") and whether for a successful prosecution of the offence under section 138 of the N.I. Act the complainant should prove the existence of a legally enforceable debt are the questions that crop up for consideration in this revision petition. The accused in C.C.No. 542/1998on the file of the Judicial First Class Magistrate Court-II, Aluva is the revision petitioner and the complainant therein is the first respondent herein. This revision petition has been filed assailing the conviction entered and the sentence imposed against him concurrently, by the courts below, under section 138 of the Negotiable Instruments Act. The facts, in succinct, necessary to answer the aforesaid questions are as hereunder:- The case of the first respondent/complainant is that the revision petitioner had borrowed a sum of Rs.1,05,000/- from him for business purpose. When the first respondent demanded for repayment of the said amount, the revision petitioner issued Ext.P1 cheque for Rs.1,05,000/- dated 10.2.92 drawn on Syndicate Bank, Kalamassery. When that cheque was presented for collection, it was dishonoured. Pursuant to its dishonouring, Ext.P4 lawyer notice was sent. Ext.P5 would reveal the acknowledgment of the same. Within the statutorily permitted period the revision petitioner failed to effect repayment of the amount covered by Ext.P1 cheque. After following the statutory requirements, the first respondent filed the complaint against the revision petitioner raising the aforesaid allegations. 


2. Before the trial court the first respondent was examined as PW1 and Exts.P1 to P7 were marked on the side of the prosecution. On the side of the defence DWs 1 and 2 were examined and there was no documentary evidence. 


3. Essentially, the contention of the revision petitioner was that there was no transaction at all between himself and the first respondent herein. DWs 1 and 2 were examined to support his case. The learned Magistrate, after appreciating the materials produced, relying on the decision of this court in George V. Mohammed reported in 1999 (2) KLT 401 found that the first respondent is entitled to bank upon the presumption under section 139 of the N.I. Act and accordingly found that the cheque in question was issued in discharge of a debt. Consequently, the revision petitioner was convicted and sentenced to undergo simple imprisonment for three months and a fine of Rs.1000/- and in default to undergo simple imprisonment for 15 days. The revision petitioner preferred an appeal as Crl.A.No.835 of 2001. The appellate court formulated the following points for consideration:- 

"(1) Whether the appellant issued a cheque in favour of respondent No.1 ? 
(2) Whether the appellant is guilty of an offence u/s 138 of the N.I. Act? 
(3) Whether there is an infirmity in the order of conviction passed by the court below ?" 

The appellate court found that the trial court rightly relied on the decision of this Court reported in 1999(2) KLT 401 (supra) and the presumption available under section 139 of the N.I. Act was very much available in the case and that the revision petitioner herein had failed to rebut the presumption available under section 139 of the N.I. Act. Accordingly, the appellate court confirmed the conviction and the sentence passed against the revision petitioner herein. 


4. I have heard the learned counsel on both sides. The learned counsel for the revision petitioner firstly, contended that admission of signature in the cheque in question will not tantamount to admission of execution of Ext.P1 cheque, so as to attract the presumption under section 139 of the N.I. Act. Secondly, it is contended that for a successful prosecution of the offence under section 138 of the N.I. Act it is incumbent on the complainant to allege and prove that there was a legally enforceable debt and it is for the discharge of the said legally enforceable debt that the cheque in question was drawn and executed. 


5. With respect to the first question, the position is fairly settled that admission of a signature in a cheque will not amount to admission of execution of that cheque. Evidently, in this case, the execution of the cheque was denied by the revision petitioner herein. It is to prove the said case that he had examined DWs 1 and 2. Therefore, the question is whether once the execution is denied whether the burden would shift to the complainant to prove that the instrument in question was duly executed by its maker. In the light of the decisions of this Court in Bhaskaran Nair v. Mohanan (2009 (2) KLT 897) and Santhi C. v. Mary Sherly and Another (2011 (3) KHC 22) I have no hesitation to hold that admission of signature in a cheque would not amount to admission of execution of the said cheque. In view of the admission of the signature in the cheque would not absolve the complainant from his onus to prove the fact that the cheque in question was drawn and executed by its maker. 


6. The next question to be decided is whether for a successful prosecution of offence under section 138 of the N.I. Act the complainant has to prove that there was a legally enforceable debt and it was for discharging the said legally enforceable debt that the cheque in question was drawn and executed by the accused. In this case, as already noticed herein before, the specific contention of the revision petitioner herein is that what was issued by him was only a blank cheque that too, not to the complainant, but to one Shamsudin from whom he borrowed some amount. It was to prove that fact that he got examined DWs1 and 2. The oral testimony of DWs 1 and 2 would reveal that their version lend considerable support to the version of the revision petitioner herein. 


7. A scanning of the oral evidence of PW1 is essential in this case. Normally, in the revisional jurisdiction ,this Court would not go into and re-appreciate the evidence. However, for the limited purpose of looking into the verity of the specific contentions taken by the revision petitioner herein that the complainant himself admitted during the cross examination that he had no acquaintance with the revision petitioner and despite the same he had lend Rs.1,05,000/- to the revision petitioner and the cheque in question that too, a blank cheque was issued for discharging the said debt, I am persuaded to look into the oral testimony of PW1. In the complaint as also during the examination of PW1, the complainant would depose that the amount in question was borrowed on 2.2.1998. It is his case that Ext.P1 cheque was issued on 10.2.1998. In the cross examination it was deposed:- 

" . . Brothers Foot Wear, North Kalamassery ......................... 2-2-98 (Q) (A). (Q) (A)." 

Thus, it is evident that even according to the complainant/the first respondent herein, he had only nodding acquaintance with the revision petitioner. According to him, he had seen the revision petitioner in the shop of his friend Shamsudin. The oral evidence of DWs 1 and 2 would reveal that they knew Shamsudin who conducts `Brothers Foot Wear' and they used to park their autorickshaws in front of the said shop. They deposed to the effect that they had seen the transaction between the said Shamsudin and the revision petitioner herein. Though in the cross examination DWs 1 and 2 deposed that they are close friends of the revision petitioner, a scanning of their oral evidence would reveal that nothing was elicited to discredit their version. The courts below arrived at the conclusion that the revision petitioner has committed the offence under section 138 of the N.I. Act, essentially, relying on the presumption available under section 139 of the N.I. Act. True that, a presumption is available under section 139 of the N.I. Act and in the light of the decision of this Court reported in 1999 (2) KLT 401 (supra), an adverse inference has to be drawn in favour of the complainant on the failure of the accused to rebut the presumption available under section 139 of the N.I. Act. There cannot be any doubt with respect to the said position, especially, in the light of the decision of this Court reported in 1999 (2) KLT 401 (supra). At the same time, as already noticed herein before, when once the very transaction itself is disputed by the parties and the accused had adduced evidence to that effect, necessarily to have a successful prosecution under section 138 of the N.I. Act the complainant has to prove that there was a legally enforceable debt. In other words, in such circumstances, the burden would shift. Needless to say that, in the absence of any dispute with respect to the transaction in question or in the failure of adducing rebuttal evidence, the presumption under section 139 of the N.I. Act will very much be available in favour of the complainant. In this case, it is the specific case of the revision petitioner that there was no transaction at all between himself and the first respondent. That apart, it is his case that he had borrowed Rs.15,000/- from one Shamsudin who was also a friend of the complainant and it is for discharging the said liability towards the said Shamsudin that he had issued the cheque in question. It is to prove that he had issued cheque to Shamsudin and had a transaction with Shamsudin, DWs 1 and 2 were examined. Therefore, to that limited extent, in the absence of anything brought out to discredit the version of DWs 1 and 2, their evidence can be relied on. In other words, there was no reason to hold that their oral testimony was wholly untrustworthy. In short, I am of the view that when the very transaction itself is disputed and some evidence to that effect was adduced by the accused, a conviction merely based on the presumption available under section 139 of the N.I. Act cannot be sustained. The complainant has to be saddled with the liability to prove that there was a legally enforceable debt between the complainant and the accused and it is for discharging the said debt that the cheque in question was drawn and executed. I am fortified in my view by the judgment of this Court in Santhi.C. v. Mary Sherly and Another (Supra). The learned counsel for the first respondent /complainant could not bring to my notice any material on record to show that the said onus has been successfully discharged by the complainant. It is also to be noted that, in this case, though the revision petitioner had admitted the signature in Ext.P1, he had not admitted the execution of the same that is, he had not admitted that the said cheque was drawn and executed in favour of the complainant. When the accused had adduced evidence capable of casting doubt with respect to the case of the complainant the complainant cannot solely rely on the presumption available under Section 139 of the N.I. Act whilst he has to adduce evidence to prove existence of a legally enforceable debt and also the fact that the cheque in question was drawn and executed for discharging the said debt owing to him. The oral testimony of PW1, would reveal that he had only a nodding acquaintance with the revision petitioner that too, occasional meeting in the shop of the aforesaid Shamsudeen. Still, it is his contention, such a huge amount was lend on 2.2.1998 and the cheque was obtained only on 10.2.1998. In such circumstances, the evidence adduced by the revision petitioner certainly was sufficient to call upon the complainant to discharge his burden proving the execution of the cheque and also existence of a legally enforceable debt. The complainant had failed to discharge the said burden. In view of the circumstances, the conviction of the revision petitioner by the trial court which was confirmed by the appellate court mainly relying on the presumption available under section 139 of the N.I. Act, on account of the failure on the part of the complainant to prove that there was a legally enforceable debt between himself and the revision petitioner, cannot be sustained. Resultantly, the conviction and sentence imposed on the revision petitioner in C.C.No.542 of 1998 by the Judicial First Class Magistrate-II, Aluva which was confirmed by the Sessions Court, North Paravur in Crl.A.No.835 2001 are set aside. The petitioner is acquitted. Consequently, the bail bond is cancelled. 


Sd/- 

C.T.RAVIKUMAR 

Judge 

TKS 


Crl. R.P. No. 3416 of 2004 - A.J. Joseph Vs. State of Kerala, (2012) 271 KLR 564

posted Oct 2, 2012, 7:16 AM by Law Kerala   [ updated Oct 2, 2012, 7:17 AM ]

 (2012) 271 KLR 564

IN THE HIGH COURT OF KERALA AT ERNAKULAM

 

PRESENT: THE HONOURABLE MR.JUSTICE S.SIRI JAGAN 

TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934 

Crl.Rev.Pet.No. 3416 of 2004 

----------------------------- 

CRMP.4588/2004 of C.J.M.,KOTTAYAM 


REVISION PETITIONER(S): 

---------------------- 

A.J.JOSEPH, ROSES COTTAGE, MUTTAMBALAM VILLAGE, KOTTAYAM. 
BY ADV. SRI.C.S.MANU 

COMPLAINANT(S): 

--------------- 

STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. 
BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN 

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 


C.R. 

S. Siri Jagan, J. 

=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= 

Crl. R.P. No. 3416 of 2004 

=-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= 

Dated this, the 25th day of September, 2012. 

Head Note:-

Indian Penal Code, 1860 - Sections 167 and 193 Public servant framing an incorrect document with intent to cause injury - Punishment for false evidence - If the facts alleged for constituting the offence are in the course of a judicial proceeding and forms part of the record of the proceedings, the offence would come under Section 193 and not under Section 167. 
Indian Penal Code, 1860 - Sections 167, 193 and 195(b)(i) Public servant framing an incorrect document with intent to cause injury - Punishment for false evidence - Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence - Section 167 is attracted only when a public servant prepares a document in a manner which he thinks or believes to be incorrect. Essentially, the allegation is that the accused suppressed the real statement prepared under Section 161 of the Criminal Procedure Code and produced along with the charge sheet a fabricated statement. That comes only within the purview of Section 193. That being so, the bar under Section 195(b)(i) is clearly attracted in this case.

O R D E R 


The petitioner is the complainant in Crl.M.P.No. 4588/2004 before the Chief Judicial Magistrate, Kottayam. The said complaint filed by the petitioner as extracted by the petitioner himself in this Criminal R.P. , reads as follows: 

"the petitioner is accused No. 5 in S.C. No. 140 of 2004 on the file of the Additional Sessions Court Ad hoc-II (Fast Track-II), Kottayam. The offences alleged against him are under Sections 201 and 218 read with Section 34 of I.P.C. The offences alleged against accused Nos. 1 to 4 in the above Sessions Case are under Sections 120B, 449, 394 and 302 of I.P.C. They are also charged with the offences under Sections 201 & 218 read with Section 34 of I.P.C. The 6th accused is also charged with offences under Sections 201 and 218 of I.P.C. read with Section 34 of I.P.C. The accused in the private complaint was the investigating officer who laid the charge sheet in the above Sessions case. The accused falsely recorded the statement of CW-43 C.M. Pathrose under Section 161 of Criminal Procedure Code in the above Sessions Case. The real statement was suppressed and a fabricated statement was produced along with the charge sheet before the Judicial First Class Magistrate's Court-I, Kottayam. This was done with a view to cause injury to the petitioner/complainant. The above said witness is now an Assistant Commissioner of Police and he has submitted a petition to the Director General of Police and the Government of Kerala stating that the accused in his private complaint has falsely recorded his statement and produced a fabricated statement before the court along with the charge sheet. The accused has thereby committed the above offences under Sections 167 and 193 of I.P.C." 
(Underlining supplied) 

As is evident from the complaint, the allegation of the petitioner was that the accused, who is a Deputy Superintendent of Police, suppressed the statement recorded under Section 161 of the Criminal Procedure Code in a criminal case registered by the police and produced a fabricated statement along with the charge sheet before the Judicial First Class Magistrate Court-I, Kottayam and thereby committed offences under Sections 167 and 193 of the Indian Penal Code. The Chief Judicial Magistrate expressed a doubt as to whether a private complaint would lie in respect of the said alleged offence in view of Section 195(b)(i) of the Criminal Procedure Code. The complainant was heard on that question. The petitioner contended that the bar under Section 195(b)(i) is applicable only to offences under Section 193 and not offences under Section 167. Relying on the decision of the Madras High Court in G. Srinivasa Ayyangar v. Ramasami Ayyangar, AIR (32) 1945 Madras 9, the Chief Judicial Magistrate held that Section 193 cannot be segregated from Sectiono 167 of the Indian Penal Code and therefore the bar under Section 195(b)(i) of Criminal Procedure Code equally applies to the petitioner's complaint. In that view, the Chief Judicial Magistrate dismissed the complaint. The petitioner is challenging that order in this Criminal R.P.


2. The petitioner's contention is that since the allegations against the accused were both under Sections 167 and 193, which are separable, the bar under Section 195(b)(i) of the Criminal Procedure Code, is applicable to the offence under Section 193 alone and cannot be applied to the allegations of offence under Section 167, which can be tried by the Magistrate on the complaint of the petitioner. 


3. The learned Public Prosecutor would support the impugned order on the basis of the decision of the Madras High Court relied on by the Chief Judicial Magistrate. 


4. I have considered the rival contentions in detail. 


5. I have already extracted the complaint hereinbefore as extracted by the petitioner himself in the Criminal R.P.. Section 167 of the Indian Penal Code reads thus: 

"167. Public servant framing an incorrect document with intent to cause injury,- Whoever, being a public servant, and being as such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record in a manner which he knows or believes to be incorrect, intending thereby to cause or knowing it to be likely that he may thereby cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 

Section 193 of the Indian Penal Code reads thus: 

"193. Punishment for false evidence.-- 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, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. 
Explanation 1.-- A trial before a Court-martial is a judicial proceeding. 
Explanation 2.-- An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. 
Illustration 
A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding, A has given false evidence. 
Explanation 3. An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding , though that investigation may not take place before a Court of Justice. Illustration A, in any enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceeding. A has given false evidence" 
(Underlining supplied) 

Section 195(b)(i) of the Criminal Procedure Code reads thus: 

"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) xx xx xx 
(ii) xx xx xx 
(iii) xx xx xx 
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or xx xx xx except on the complaint in writing of that Court by such officer of the Court as that Court may authorise in writing in this behalf, or some other Court to which that Court is subordinate." 
xx xx xx 

6. I am of opinion that the petitioner is bound to lose on two counts. The first is that in this case, Section 167 of Indian Penal Code is not attracted at all. Section 167 is attracted only when a public servant prepares a document in a manner which he thinks or believes to be incorrect. Essentially, the petitioner's allegation is that the accused suppressed the real statement prepared under Section 161 of the Criminal Procedure Code and produced along with the charge sheet a fabricated statement. That comes only within the purview of Section 193. Therefore, according to me, Section 167 is not attracted to the allegations raised by the petitioner in his complaint. 


7. Apart from the same, I am inclined to follow the Madras decision referred to above in this case. In the same, that Court held as follows:

" . . . . . This brings him within the scope of S. 191, Penal Code, and as the execution warrant or process arose in the course of a judicial proceeding and forms part of the record of those execution proceedings, the offence committed by the amin, comes under S. 193, Penal Code. The offence also appears to come under S. 167, Penal Code, which does not require the complaint of the Court under S. 195(1)(b), Criminal P.C., but there is ample authority in support of the proposition that a complainant cannot avoid the provisions of S. 195 of the Code, by making his complaint for a lesser offence for which a complaint by the Court is not necessary. The distinction between S. 167 and S. 193, Penal Code, seems to be that, whereas the former section relates to the incorrect preparation of a public record as such, the latter section applies when the record forms part of the records of a judicial proceeding, as it does in the present case. . . . ." 

Going by that decision, if the facts alleged for constituting the offence are in the course of a judicial proceeding and forms part of the record of the proceedings, the offence would come under Section 193 and not under Section 167. I am in respectful agreement with that decision. Here, the recording of a statement under Section 161 itself is a judicial proceeding in view of Explanation 2 to Section 193 insofar as recording of a statement is part of the investigation directed by law preliminary to a proceeding before a court of justice and therefore is a stage of the judicial proceedings. Therefore, even assuming that the petitioner's allegation is regarding preparation of 161 statement itself, what is attracted is only Section 193. In any event, that constitutes an offence under Section 193 also even if it constitutes an offence under Section 167. That being so, the bar under Section 195(b)(i) is clearly attracted in this case.


In view of my above findings, I do not find any merit in the challenge against the order of the Chief Judicial Magistrate. Accordingly, the Criminal R.P. is dismissed. 


Sd/- S. Siri Jagan, Judge. 

Tds/ [True copy] P.S to Judge. 


Crl. R.P. No. 646 of 2004 - Abdul Majeed Vs. State of Kerala, (2012) 271 KLR 366

posted Oct 1, 2012, 7:55 PM by Law Kerala   [ updated Oct 1, 2012, 7:56 PM ]

 (2012) 271 KLR 366 

IN THE HIGH COURT OF KERALA AT ERNAKULAM 


PRESENT: THE HONOURABLE MR.JUSTICE. P.S.GOPINATHAN 

WEDNESDAY, THE 19TH DAY OF SEPTEMBER 2012/28TH BHADRA 1934 

Crl.Rev.Pet.No. 646 of 2004 ( ) 

------------------------------- 

CRA.247/1998 of ADDL.DISTRICT COURT-I,MAVELIKKARA CC.58/1993 of J.M.F.C.M, KAYAMKULAM 


REVISION PETITIONER/1ST APPELLANT:: 

------------------------------------- 

ABDUL MAJEED, KANNAGARA THARAYIL, CHERAVALLY, KARTHIKAPPALLY. 

BY ADVS.SRI.R.KRISHNA RAJ SMT.G.PRATHISHYA 

RESPONDENT/RESPONDENT:: 

--------------------------- 

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. PUBLIC PROSECUTOR, MS.MADHU BEN. 

THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-09-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 

"CR" 

P.S.GOPINATHAN, J. 

------------------------------ 

Crl.R.P.No. 646 OF 2004 

-------------------------------- 

Dated this the 19th day of September, 2012 

Head Note:-

Indian Penal Code, 1860 - Sections 323, 324 and 326 r/w 34 - Identification of the Accused - Since the address and other particulars of the assailant was not given in the First Information Statement and thereafter the assailant was not identified during the course of investigation and a person with different set of address is arrayed as the accused in the final report, the identification of the accused for the first time in the box is not reliable.

O R D E R 

~~~~~~~ 


Revision petitioner is the 1st accused in C.C. 58/1993 on the file of the Judicial Magistrate of the First Class, Kayamkulam. He along with three others were prosecuted by the Station House Officer, Kayamkulam alleging offences under Sections 323, 324 and 326 read with 34 IPC. During the pendency of the case, the 3rd accused expired. Despite the coercive steps, the 2nd accused didn't turn out. So the case against him was split up and accused 1 and 4 were tried. After trial, they were found guilty for the above offences. The revision petitioner was sentenced to rigorous imprisonment for six months under Section 326 read with 34 IPC. The 4th accused was sentenced to rigorous imprisonment for three months. No separate sentence was awarded for offences under Sections 323 and 324 read with 34 IPC. Assailing the above conviction and sentence, they preferred Crl.A.No.247/1998 before the Additional Sessions Judge, Mavelikara. By the impugned judgment dated 10.11.2003, the Additional Sessions Judge arrived at a finding that the offences under Sections 324 and 326 read with 34 IPC are established against the revision petitioner. Consequently, the conviction and sentence impugned were confirmed. It was further found that the prosecution had not succeeded to establish any of the offences alleged against the 4th accused. Therefore, he was acquitted. It was also found that no offence under Section 323 IPC is established against the revision petitioner and he was acquitted for offence under Section 323 IPC. Assailing the legality, correctness and propriety of the above conviction and sentence as confirmed in appeal, this Revision Petition is preferred. 


2. I have heard Adv. Sri. Krishna Raj, the learned counsel appearing for the petitioner and Ms.Madhu Ben, the learned Government Pleader. The learned counsel for the petitioner took me through the material evidence. 


3. The main argument that was advanced is regarding the identity of the revision petitioner as the assailant. PW1 is the injured. In Ext.P1, the First Information Statement, given by PW1 and recorded by PW5, the Head Constable attached to the Kayamkulam Police Station, five persons were implicated. Ext.P1 was recorded while PW1 was undergoing treatment at Medical College Hospital, Alappuzha. Ext.P1 was produced before PW6, the Assistant Sub Inspector of Police. On the basis of Ext.P1, PW6 registered the case as Crime No.580/92 for offences under Section 143, 147, 148, 149, 324 and 326 IPC against five persons. Ext.P3 is the First Information Report (FIR). PW6 took over the investigation. During investigation, it was revealed that the 4th accused named in the First Information Statement was not involved in the offence alleged. It was also revealed that offences under Sections 143, 147, 148 and 149 IPC were also not revealed. Consequently, Ext.P8 report was filed seeking to remove the 4th accused in FIR from the array of accused and deleting the offences under Sections 143, 147, 148 and 149 IPC as well as reporting the correct address of the other accused, who were re-arrayed as accused 1 to 4. In Exts.P3 and P1, the revision petitioner was referred as. No where any other particulars including the age, address and the name of the father of the person mentioned as the 1st accused, so as to identify him, is mentioned in Ext.P1 or in Ext.P3. It is not mentioned in Ex.P8 as to from where the address of the revision petitioner and the three other accused were collected. In cross examination, PW6 had admitted that he had not recorded any further statement of PW1. Though PW6 had arrested the revision petitioner, he was not got identified by PW1. In the final report, the address of the revision petitioner is described as son of Muhammed Kunju, Eringil Mootil, Peringala Muri, Kayamkulam. Entirely different address is furnished in the final report. Though it is seen that the revision petitioner was identified by PW1 in the box and his identity was not challenged while PW1 was cross examined, in the circumstance stated above, I find merit in the submission made by the learned counsel for the revision petitioner regarding the identity of the revision petitioner. Since the address and other particulars of the assailant was not given by PW1 while giving the First Information Statement and thereafter the assailant was not identified by PW1 during the course of investigation and a person with different set of address is arrayed as the 1st accused in the final report, the identification of the revision petitioner for the first time in the box is not reliable. Adding to that, PWs 2 and 3, the other two occurrence witnesses had turned hostile. The result is there is no admissible evidence to establish the identity of the revision petitioner as the assailant. Courts below omitted to note the lack of evidence regarding the identity of the revision petitioner. In this way, the courts below had gone wrong and is liable to be rectified. Therefore, the conviction and sentence under challenge are liable to be set aside. 


4. In the result, this Revision Petition is allowed. While setting aside the conviction and sentence under challenge, the revision petitioner would stand acquitted and set at liberty. The bail bond, if any, executed by him shall stand cancelled. 


(P.S.GOPINATHAN, JUDGE) 

ps/19/9 


Crl. R.P. No. 518 of 2003 - K. Yesoda Vs. State of Kerala, (2012) 270 KLR 693

posted Sep 28, 2012, 2:14 AM by Law Kerala   [ updated Sep 28, 2012, 2:15 AM ]

 (2012) 270 KLR 693

IN THE HIGH COURT OF KERALA AT ERNAKULAM


PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR 

WEDNESDAY, THE 9TH DAY OF NOVEMBER 2011/18TH KARTHIKA 1933 

Crl.Rev.Pet.No. 518 of 2003 ( ) 

------------------------------- 

CRA.36/1999 of COURT OF ADDL. SESSIONS JUDGE,THALASSERY CC.360/1996 of J.M.F.C.,KUTHUPARAMBA 


REVISION PETITIONER(S)/APPELLANT/ACCUSED:: 

------------------------------- 

K. YESODA, D/O. KUNHIKANNAN, 50 YEARS, KARUVATH HOUSE, KUTHUPARAMBA AMSOM MOORIYAD DESOM, KANNUR DISTRICT. 
BY ADVS.SRI.P.P.RAMACHANDRAN SRI.SHEJI P.ABRAHAM 

RESPONDENT/ RESPONDENT/COMPLAINANT(S): 

--------------------------- 

STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 

BY PUBLIC PROSECUTOR SRI.PADMALOCHANAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09-11-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 


C.T.RAVIKUMAR, J. 

---------------------------- 

Crl.R.P.No.518 of 2003 

---------------------------- 

Dated 9th November, 2011 

Head Note:-

Abkari Act, 1077 - Section 55(a) - In the absence of any evidence to show the date on which the sample and the other contraband articles were sent to the court, it is for the prosecution to prove that the contraband articles including the sample were kept in safe custody. 

ORDER 


The concurrent findings of guilt, conviction and sentence imposed on the revision petitioner under section 55(a) of the Abkari Act is challenged in this revision petition. The revision petitioner was the sole accused in C.C.No.360 of 1996 on the file of the Judicial First Class Magistrate, Kuthuparamba was found guilty and convicted thereunder. For the conviction under section 55(a) of the Abkari Act he was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.25,000/- and in default to undergo rigorous imprisonment for a further period of three months. Feeling aggrieved by the conviction and sentence, the revision petitioner had preferred Crl.A.No.36 of 1999 and the the appellate court as per the impugned judgment confirmed the conviction under section 55(a) of the Abkari Act but, modified the sentence. While maintaining the sentence of fine imposed by the trial court the sentence of rigorous imprisonment was reduced from six months to three months. 


2. The case of the prosecution is as follows:- On 22.9.1995 at about 11 a.m. the revision petitioner/accused was found transporting five litres of illicit arrack in a black plastic can having a capacity of 10 litres when the excise party led by PW2, the Excise Inspector, Kuthuparamba Excise Range, searched the bus bearing registration No.KL-13.B. 2786. She was then, tried for the offence under section 55(a) of the Abkari Act. Upon finding her guilty she was convicted and sentenced as aforesaid. In the appeal, as per the impugned judgment, the conviction was confirmed but, the sentence was modified, as aforesaid. This revision petition has been filed in the aforesaid circumstances. 


3. According to the learned counsel for the revision petitioner, failure to consider a point of vital importance by the trial court as also by the appellate court resulted in grave failure of justice. The incident allegedly occurred on 22.9.1995. According to the learned counsel, the contraband articles were produced before the court along with a property list. So also it is contended that there is no material on record to show the date on which the contraband articles and also the sample were produced before the court. Relying on the oral evidence of PW2, it is contended that there is delay in producing the sample as also the contraband articles before the court. In that context, the learned counsel drew my attention to the finding of the appellate court that there is delay in the said matter. However, that point was not actually given due consideration, in accordance with the law established on that point. It is contended that on that sole score the petitioner is entitled to succeed in this revision petition. To buttress the said contention , the learned counsel relied on a decision of this Court in Rajendran v. State of Kerala (2007 (1) KLT 971) and also the decision of a Division Bench of this Court in Ravi v. State of Kerala and another (2011 (3) KHC 121). I will look into the sustainability of the said contention made relying on the aforesaid judgments. Necessarily, the question to be considered is whether there occurred unexplained delay in producing the contraband articles, including the sample, before the court. In that context, it is relevant to advert to the oral evidence of PW2. PW2 is the detecting officer. He deposed in the cross examination as hereunder:- 

"NYTV 22Hm %O:na.e:^V<m W`x_fa 5bf? %O:na.R....QNYTV 5 N^X" 5]_E^Cm g5^?D_O_W %OAaKDmRe....Q I_?_f:n?aJ X^GHB{a" :^V<m W`x_gH^?MN^Cm Y^<x^A_ODm." 

4. Essentially, it must have been the said portion of the oral evidence of PW2 that constrained the appellate court to observe that there is delay in the matter of production of contraband articles, including the sample, before the court in paragraph 6 of the judgment. It is a settled position of law that if there is delay in the matter of  production of contraband articles before the court, when once it is seized, it is mandatory for the prosecution to explain the delay. That is because, any delay in the matter of production of properties before the court would give room for tampering. Therefore, essentially, it is for the prosecution to explain the delay satisfactorily. As admitted by PW2, in this case the delay occurred is of 5 months. In this case, there is no explanation at all, for the said long delay. A scanning of the judgment of the trial court would reveal that there was absolute absence of any discussion on this vital and fatal aspect of delay. The judgment in the appeal would reveal that the said point was taken up pointedly, before that court by the revision petitioner herein and after perusing the records the appellate court lightly observed that there was some delay in producing the sample and residue in court after detection of the offence. It is so evident from paragraph 11 of the judgment. Even after finding such a delay, the appellate court held that a mere delay as such is not a ground for a mechanical acquittal, in the absence of evidence to show that there was the possibility of some sort of tampering due to the said delay. In this case, there is absolutely no evidence or material to show that there was occasion or reason for any sort of tampering during the period between the detection of the offence and the seizure of the articles and the production of the contraband articles in court. At the same time, admittedly, no evidence whatsoever was adduced by the prosection to show that the sample and residue had not been in proper custody of a responsible officer during the said period. But the appellate court found that In the absence of any evidence or material to show that there had been occasion or chance for some sort of tampering during the said period, the accused is not entitled for acquittal on the mere ground of delay in the production of the contraband properties in court. The findings of the appellate court would definitely show that there occurred delay in the matter of production of sample and also residue in court, after detection of the offence. When once it is so found, the question whether the burden cast upon the prosecution to satisfactorily explain the delay was discharged or not cannot be lightly taken. Evidently, in the case on hand that question was never addressed by the trial court despite the evidence regarding the delay. The question whether it was explained satisfactorily was not at all considered by the appellate court despite the clear finding of delay in the matter of production contraband articles before the court. It is in the said context that the decision relied on by the learned counsel for the revision petitioner assumes relevance. It is a case wherein the evidence of PW2 would in unambiguous terms shows the delay of 5 months in that matter and there is absolute absence of any explanation for the said delay. What is the impact of the unexplained delay in such circumstances ? It is also curious to note that even after finding that there was delay in the matter of production of sample and residue after they were taken, the appellate court considered the said point and entered into a finding thereon as if the onus is on the accused to prove that the contraband articles, including the sample, were not kept in safe custody or that there was chance for some sort of tampering during the said period. The appellate court proceeded as if it is for the accused to prove that there was chance for tampering. In the decision reported in 2007 (1) KLT 971(supra) clause (e) of Rule 17 of the Chemico-Legal Examination Rules was taken note of. It provides as hereunder:- 

"Excise Officers shall forward articles seized under the provisions of the Abkari Act in force through the Magistrates within whose jurisdiction the offence has been committed." 

In the absence of any evidence to show the date on which the sample and the other contraband articles were sent to the court, it is for the prosecution to prove that the contraband articles including the sample were kept in safe custody. No evidence was adduced by the prosecution to show that prior to the production of contraband articles including the sample they were in safe custody. In this context, the evidence of PW2 assumes relevance. Going by the oral evidence of PW2, the properties were produced before the court only along with the charge sheet. The mahazar, the charge sheet and the contraband articles were produced before the court only after five months from the date of seizure. It is further evident from the oral evidence of PW2 that the requisition for sending the sample for chemical analysis viz., Ext.P6 was made only on 22.2.1996. In view of the said admitted position obtained in this case, I have no hesitation to hold that the petitioner is perfectly justified in contending that the delay in production of the sample and the residue before the court after its detection is fatal to the prosecution. In the decision reported in 2007 (1) KLT 971 (supra) it was held that, in the absence of any evidence to prove that sample and residue were kept in proper custody till the date of production of the same before the court, the chance of tampering with the sample taken and the residue seized cannot be ruled out. The said position is reiterated in Damodaran v. Station House Officer (2008 (1) KLT SN 18). In Ravi v. State of Kerala and another (supra) the Division Bench held that inordinate delay in the production of properties before the concerned court and want of a proper explanation for the said delay are fatal to the prosecution. As already noticed herein before, the appellate court had actually found that there is delay in the matter of production of residue as also sample after detected. The above extracted portion from the oral evidence of PW2 would support the said finding. Even after entering into such a clear finding the appellate court did not appreciate the said point in the light of the established law on that point instead, held that in the absence of any material or evidence to show that there was actual tampering or possibility of tampering, the revision petitioner is not entitled to get any automatic acquittal. In that context, it is to be noted that the Division Bench in the decision in Ravi's Case (Supra). held that when once that point is found in favour of an accused, he is entitled to get an acquittal on that short ground. As already noticed herein before, the appreciation of evidence by the appellate court in the said circumstances can only be said to be perverse. The law established on the aforesaid point was not actually considered by the appellate court and in fact, the said issue was appreciated inconsistent with the established law. When that be the position, I am of the considered view that this is a fit case wherein this Court should exercise the revisional power. Merely because the findings of the trial court as also the appellate court are concurrent that cannot attach any infallibility on such findings. When a point of vital importance has not been given due consideration and such failure resulted in miscarriage of justice, certainly it invites interference by this Court. In the circumstances, the revision petitioner is entitled to succeed. 


In the result, the conviction entered against the revision petition under Section 55 (a) of the Abkari Act and the sentence imposed on the revision petitioner for the said conviction by the courts below are set aside Accordingly, the revision petitioner is not found guilty of the offence and is consequently, acquitted. The bail bond, if any, will stand cancelled. 


Sd/- C.T.RAVIKUMAR 

Judge TKS 


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