1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01.07.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD)No.91 of 2011 and M.P(MD)No.3 of 2011 Manimaran ... Petitioner/ 2nd Respondent/ Investigating Officer Vs. 1.B.Annathurai ...1st Respondent/Accused 2.Aasirvatham 3.Arivazhagan 4.Veemaraj 5.Ramesh 6.Perumal @ Bullet Perumal ... Respondents 2 to 6/ Respondents 1, 3 to 6 7.The State represented by The Inspector of Police, Radhapuram Police Station, Tirunelveli District. ... 7th Respondent/Nil/ Complainant Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure to call for the records and set aside the order dated 14.09.2007 made in Cr.M.P.No.112 of 2007 in S.C.No.97 of 2007 on the file of the learned Assistant Sessions Judge, Valliyoor, Tirunelveli District. For Petitioner : Mr.C.Muthu Saravanan For Respondents : Mr.T.Lajapathi Roy for R1 Mr.S.Ragaventhree for R2, R4, R5 and R6 Mr.P.Kandasamy, Govt. Advocate (Crl.Side) for R7 R3 - Service of notice awaited. ORDER The first respondent herein is the accused in Cr.No.104 of 2006 registered by the Radhapuram Police Station, for he commission of the alleged offences under Sections 294(b), 307 and 506(ii) I.P.C. The case after investigation, has culminated in a positive final report which was taken on file and numbered as S.C.No.97 of 2007 on the file of the Court of Assistant Sessions Judge, Valliyoor. 2. Pending the trial of the case, the accused who is arrayed as A.1 herein, submitted a petition under Sections 340 and 195(1)(b)(i) of https://hcservices.ecourts.gov.in/hcservices/ 2 the Code of Criminal Procedure before the learned Assistant Sessions Judge, Valliyoor for prosecuting this revision petitioner and the respondents 2 to 6 for the commission of the offences under Sections 193 and 211 I.P.C and Section 3(1)(viii) and 3(2)(ii) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. 3. According to the first respondent/accused, since the year 1992, he is working in Liquid Propulsion Systems Center (LPSC) of Indian Space Research Organisation (ISRO) at Mahendragiri, Tirunelveli District and he has instituted number of private complaints against Mr.Singaravelu, Ex.DSP and aggrieved by the same, the police personnel within the jurisdiction of the Court of the Judicial Magistrate, Valliyoor, implicated him in number of false cases, to settle their personal scores and one such case is S.C.No.97 of 2007. 4. It is contended by the first respondent among other things that a fabricated charge sheet in S.C.No.97 of 2007 came to be filed based upon the statements of the witnesses viz, L.W.1 to L.W.5 recorded under Section 161(3) of the Code of Criminal Procedure and that no such statements were given by L.W.1 to L.W.5 and consequently, the said statements have been purposefully fabricated for malafide purposes to rope him as the accused and hence, it is an offence under Section 193 I.P.C. 5. It is also contended by the first respondent that there are ample evidences and witnesses to prove that the F.I.R and the charge sheet filed in S.C.No.97 of 2007 are false, foisted and fabricated and the said acts on the part of the police personnel, had affected the administration of justice and also would amount to interference with the course of justice. 6. The Court of Assistant Sessions Judge, Valliyoor, taking into consideration the averments made in the petition, has held that the Court of the Judicial Magistrate, Valliyoor, is the competent authority to entertain the application and therefore, vide order dated 14.09.2007, directed the first respondent herein to appear before the said Court and on such appearance, the Court concerned was directed to hold a preliminary enquiry in terms of Sections 340 and 195(1)(b)(i) of the Code of Criminal Procedure and submit a report to the competent Court. 7. Challenging the vires of the said order, the present revision is filed by the second respondent in Cr.M.P.No.112 of 2007. 8. Mr.C.Muthu Saravanan, learned Counsel for the revision petitioner would submit that the Court of the Assistant Sessions Judge, Valliyoor, ought not to have ordered to hold a preliminary enquiry as the statements recorded under Section 161(3) of the Code of Criminal Procedure during the investigation, are neither evidence nor carrying any evidentiary value and that the said statements cannot be tendered as evidence during the course of the trial. 9. It is further submitted by the learned Counsel for the revision petitioner that the power under Section 340 of the Code of Criminal Procedure read with Section 195 I.P.C can be exercised only when someone fabricated the false evidence and gives false evidence and in the case on https://hcservices.ecourts.gov.in/hcservices/ 3 hand, such essential ingredients are lacking. 10. It is also submitted that Section 195(1)(b)(ii) of the Code of Criminal Procedure would stand attracted only when the document is in custodia legis and since the statements recorded under Section 161(3) of the Code of the Criminal Procedure, cannot be termed as evidence or documents to be used as evidence, the order passed by the lower Court in ordering preliminary enquiry cannot be sustained. 11. Per contra, Mr.T.Lajapathi Roy, learned Counsel for the first respondent, would submit that no finality has been reached as to the perjury committed by the revision petitioner and the other respondents as only preliminary enquiry has been ordered to find out the true and veracity of the allegations. It is further submitted that even in case of positive report, remedy is available to the revision petitioner to prefer the appeal under Section 341 of the Code of Criminal Procedure. 12. It is further submitted by the learned Counsel for the first respondent that he is repeatedly implicated in false cases as he has chosen to question the illegal acts of the police officials. Therefore, for the said reasons, the learned Counsel for the first respondent prays for the dismissal of this revision. 13. This Court has carefully considered the submissions made by the learned Counsel appearing on either side and also perused the materials available on record. 14. Under Section 161 of the Code of Criminal Procedure, the Police Officer making an investigation, can examine the person acquainted with the facts of the case and reduce the statement given by such person into writing and the said statements recorded have only negative value as they can be used only to contradict the witnesses. 15. The statements recorded under Section 161 of the Code of Criminal Procedure are not substantive evidence and can be used only for the purpose of contradiction and not for corroboration and it cannot be used for any purpose except to contradict the witnesses in the manner prescribed in the proviso to Section 161(1) of the Code of Criminal Procedure. 16. The Honourable Supreme Court in the decision in Omkar Namdeo Jadho and others v. Second Additional Sessions Judge, Buldana and another reported in 1996 Supreme Court Cases (Cri) 488, has considered the challenge made to the notice issued by the Second Additional Sessions Judge, Buldana to the appellants therein for prosecution under Sections 194 and 195 I.P.C for the alleged fabrication of the records and setting up a case against two ladies. In the said decision, it has been held as follows: "3. It is seen that the observation made by the Sessions Judge, as confirmed by the Bombay High Court, Nagpur Bench in the impugned judgment dated 10-3-1992 made in Criminal Application No.20 of 1991 is based on Section 161 statements recorded during the investigation. https://hcservices.ecourts.gov.in/hcservices/ 4 Admittedly, no evidence has been recorded. The Court should not come to the conclusion on the basis of Section 161 statements which are not evidence. It can be used at the trial only for contradictions or omissions when the witness was examined. Nor could it be contradicted by looking at the physical features of the accused even before they are examined. The Additional Sessions Judge had discharged them concluding that the police officers had fabricated the record. It would appear that the learned Sessions Judge had overstepped his jurisdiction in recording a finding, while looking at the physical features of the accused, that the police had fabricated the record. The High Court has also not properly considered the matter while going into the question regarding discharge of the accused for other offences. Under these circumstances, we hold that in view of the finding recorded by the Sessions Judge of fabrication of the record and that the case is a false one, issuance of notice under Section 340, CrPC is wholly unjustified. The said order of the Sessions Judge is accordingly quashed." 17. In the considered of this Court, the above cited decision of the Honourable Supreme Court is squarely applicable to the facts of this case. 18. It is the specific case of the first respondent that the revision petitioner and the other police personnel sought to use the statements of L.W.1 to L.W.5 recorded under Section 161(3) of the Code of Criminal Procedure against him for the purpose of implicating in the present case. It is also the specific case of the first respondent that L.W.1 to L.W.5 have not given any such statements. 19. As already held above, the statements recorded under Section 161 of the Code of Criminal Procedure have only negative value and they can be used only to contradict witnesses and the statements per se cannot be tendered as exhibits. 20. As the statements recorded under Section 161(3) of the Code of Criminal Procedure are not evidence and they can be used during the course of trial eliciting for contradictions or omissions, when the concerned witness is examined, the ordering of preliminary enquiry under Section 340 of the Code of Criminal Procedure by the trial Court, is unsustainable. The Honourable Supreme Court in the decisions in Pedda Narayana v. State of A.P reported in (1975) 4 Supreme Court Cases 153 and https://hcservices.ecourts.gov.in/hcservices/ 5 Sat Paul v. Delhi Administration reported in (1976) 1 Supreme Court Cases 727, has laid down the said proposition. 21. In the result, the Criminal Revision Case is allowed and the order dated 14.09.2007 made in Cr.M.P.No.112 of 2007 in S.C.No.97 of 2007 by the learned Assistant Sessions Judge, Valliyoor, Tirunelveli District, is set aside. The findings/observations made herein are only for the purpose of disposal of this revision and the trial Court need not be influenced by these observations as it has to adjudicate and decide the case solely on the quality of the evidence tendered before it. Consequently, the connected Miscellaneous Petition is closed. Sd/- Assistant Registrar /True Copy/ Sub Assistant Registrar rsb To: 1.The Inspector of Police, Radhapuram Police Station, Tirunelveli District. 2.The Assistant Sessions Judge, Valliyoor, Tirunelveli District 3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. +1cc to Mr.T.Lajapathi Roy, Advocate, SR.No.21434 GH : 13.07.2011 : 5p/5c ORDER MADE IN Crl.R.C.(MD)No.91 of 2011 and M.P(MD)No.3 of 2011 01.07.2011 https://hcservices.ecourts.gov.in/hcservices/