IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN THURSDAY, THE 10TH DAY OF NOVEMBER 2011/19TH KARTHIKA 1933 CRMC.No. 3373 of 2011 ( ) ==================== CRMP.3119/2011 of CHIEF JUDL.MAGISTRATE, ERNAKULAM PETITIONER/ACCUSED: ==================== C.C.ALEXANDER S/O.LATE CHACKO PALAKKADATHADATHIL HOUSE ARUNOOTTIMANGALAM P.O. KADUTHURUTHY KOTTAYAM BY ADVS. SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA SRI.V.S.BOBAN RESPONDENT/COMPLAINANTS: =========================== 1 STATE OF KERALA (CRIME NO.3042/2011 OF ERNAKULAM CENTRAL POLICE STATION SUB INSPECTOR OF POLICE ERNAKULAM CENTRAL POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 2 NANDAKUMAR T.P., S/O.K.DAMODARAN NAIR, CHIEF EDITOR 'CRIME', K.M.A. BUILDING PUTHIYA ROAD KOZHIKODE-1. R1 BY GOVERNMENT PLEADER SRI.RAJESH VIJAYAN R2 BY ADV. SRI.R. MANOJ THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10-11-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: STK CRMC.No. 3373/2011 APPENDIX PETITIONER'S ANNEXURES: A I : CERTIFIED COPY OF THE COMPLAINT IN CRML. M.P. NO.3119/2011 DATED 04.08.2011 FILED BY THE 2ND RESPONSDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM. A II : CERTIFIED COPY OF THE F.I.R. IN CRIMSE NO.3042/2011 DATED 13.09.2011 OF ERNAKULAM CENTRAL POLICE STATION. A III : TRUE COPY OF THE THIRD PART AFFIDAVIT DATED 18.06.2010 FILES BY C.K. OMANAKUNJAMMA IN O.S. NO. 535/2010 BSEFORE THE IST ADDITIONAL MUNSIFF COURT, ERNAKULAM. A IV : TRUE COPY OF THE AFFIDAVIT DATED 21.12.2010 FILES BY C.K.OMANAKUNJAMMA ALONG WITH PETITION IN O.S. NO.535/2010 BEFORE THE IST ADDITIONAL MUNSIFF COURT, ERNAKULAM. RESPONSDENTS' ANNEXURES: NIL //TRUE COPY// P A TO JUDGE STK N.K. BALAKRISHNAN,J. ------------------------------------ Crl.M.C. 3373 of 2011 ------------------------------------------ Dated this the 10th day of November, 2011 O R D E R The petitioner is the accused in Crime No.3042 / 11 of Ernakulam Central Police Station. The complaint was filed by the second respondent against the petitioner alleging commission of offences punishable under Sections 192, 193, 196, 463, 464, 465, 469 and 471 of the Indian Penal Code. The allegation in that complaint is that the accused was a NRI business man and he had a family at Kaduthuruthy, he had also immoral relationship with one Omana Kunjamma and in that relationship she had twin children. It was also alleged that the accused was convicted by courts in Abudabi and U.A.E. for having cheated several persons and committed forgery also. A suit was filed by the accused as O.S.535/10 which was pending before Munsiff Court, Ernakulam. 2. In Annexure -1 complaint, it was alleged by the second respondent that the petitioner herein, in collusion with his counsel filed an affidavit alleged to have been Crl.M.C. 3373 of 2011 2 sworn by Smt. Omana Kunjamma to the effect that the petitioner is only a friend of Smt. Omana Kunjamma. It was further alleged that the aforesaid affidavit dated 18.6.2010, stated to have been produced by the petitioner, was a false document since in December - 2010, Smt. Omana Kunjamma, referred to above, filed another affidavit, through her lawyer swearing that she was living as husband and wife with the petitioner herein, and she has begotten twin children and that the petitioner had obtained signed blank papers from Smt. Omana Kunjamma and misusing those signed blank papers, a false affidavit was created and filed before the Munsiff's Court. That affidavit dated 21.12.2010 is relied upon by the second respondent to contend that the first affidavit dated 18.6.2010 is a false document. 2. The learned counsel for the petitioner submits that, the case advanced by the second respondent is totally untenable. The court before which there are two affidavits has not decided as to which of the affidavits is true and Crl.M.C. 3373 of 2011 3 correct and whether the first affidavit dated 10.6.2010 is a 'false affidavit'. It is also argued by the learned counsel for the petitioner that the first affidavit was also attested by a responsible and reputed lawyer, so that, that affidavit cannot be simply brushed aside stating that it was not sworn to by the deponent. Be that as it may, for the disposal of this petition, it is not necessary to go into the rival contentions raised by the parties with regard to the falsity or acceptability of the affidavits referred to above. 4. The gravamen of the contention raised by the petitioner is that the offence complained of is with regard to the affidavit dated 18.6.2010 filed by the petitioner before the Additional Munsiff's Court in O.S. No:535/2010. No complaint was filed by Smt. Omana Kunjamma, stating that the said affidavit is false or that action has to be taken against the petitioner who caused that affidavit to be filed in Court. It is further submitted by the learned counsel that the learned Munsiff has not initiated action by resorting to the procedure prescribed under section 340 of Cr.P.C. The Crl.M.C. 3373 of 2011 4 learned counsel for the second respondent would submit that in the light of the Larger Bench decision of the Apex Court in Iqbal Sing Marwah Vs. Menakshi Marwah reported in (2005)4 SCC 370 which followed the decision in Sachida Nanda Singh (1998) 2 SCC 493, the bar contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in Court. It was held in that decision that it would be a strange thinking that any offence involving forgery of document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting the administration of justice merely because that document later reached the Court records. 5. According to the learned counsel for the respondent since the affidavit was prepared outside the Court, simply because it was produced in Court, the bar under section 195(1)(b)(ii) of the Code is not applicable. Hence, the learned counsel for the second respondent submits that the Crl.M.C. 3373 of 2011 5 complaint filed by the second respondent before the Police in respect of which the crime has been registered by the Police as 3042/2011 is perfectly maintainable and hence the investigation cannot be interfered with. Since the alleged offence was in respect of the affidavits referred to above, the other sections of offence mentioned in the complaint may not be of much relevance or consequence. The question is whether the affidavit was fabricated and produced in Court to be used as evidence, it is further argued. 6. The learned counsel for the petitioner submits that the decision of the Apex Court in Iqbal Sing Marwah, cited above is not applicable to the facts of this case. According to the learned counsel, Clause (b)(i) and clause (b)(ii) of Section 195(1) Cr.P.C. operate in different situations. The former deals with the offences alleged to be committed in, or in relation to, any proceeding in any Court whereas the latter deals with commission of offences described in Sections 463 or punishable under Sections 471, 475 or 476 Crl.M.C. 3373 of 2011 6 of the Indian Penal Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceedings in any Court. Here, Clause (b)(ii) can have no application at all since the offence is not alleged to have been committed in respect of a document produced or given in evidence. The Penal section that may be applicable would be only section 193 of the IPC. It is submitted by the learned counsel for the petitioner that in Iqbal Singh cited supra, the Apex Court was considering only Clause(b)(ii) of Section 195(1) and not clause(b)(i) of Section 195 (1). In paragraph 33 of Iqbal Singh, cited supra it was held: "In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1) (b) (ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis." 7. In this connection, the learned counsel has relied upon the decision of this Court in Kuttiah Vs. Federal Crl.M.C. 3373 of 2011 7 Bank Ltd reported in 2006 (3) KLT 418. The offences falling under clause (b)(i) of Section 195(1) as mentioned above are those which relate to giving of false evidence and offences against public justice which fall under Chapter XI of IPC. Whether the affidavit in question would amount to giving or producing false evidence is a matter to be decided by the Court before which it was produced and not by the Police Officer by registering a crime and conducting investigation with regard to the same. So much so, according to the learned counsel, if only the Court before which such false affidavit is filed finds that production of such an affidavit amounts to adduction of false evidence attracting Section 193 IPC or any other offence falling under Chapter XI, further proceedings can be had and for that purpose inquiry has to be conducted under Section 340 Cr.P.C., as a pre-requisite for lodging a complaint under Section 195(1). The decision of the Apex Court in Iqbal Singh cited supra would apply only in respect of a document forged or fabricated out of the precincts of the Crl.M.C. 3373 of 2011 8 court, which may attract offences mentioned in Clause (b) (ii) of Section 195(1). It is also argued that the offence alleged to have been committed in the case on hand, with regard to making or creating a false affidavit or fabricating a false affidavit would come only under Chapter XI of the IPC in respect of which Clause (b)(i) of Section 195(1) alone can have application. Therefore, it cannot be said that the bar under Section 195(1) in taking cognizance of such a case without a complaint in writing of that court is not applicable. 8. In Kuttiah's case also, during the course of proceedings pending before the Debt Recovery Tribunal, the petitioner filed a petition requesting the DRT to make an enquiry against the second respondent therein under Sec.340 Cr.P.C and to make a complaint to the jurisdictional Magistrate to initiate the proceedings. That petition was dismissed holding that if a document is forged and was produced before the court, no proceedings can be initiated under Sec.340 Cr.P.C. It was argued before this court that Crl.M.C. 3373 of 2011 9 the dictum laid down in Iqbal Singh's case deals only with the application of Clause (b)(ii) . In contrast there to clause (b) (i) of Section 195 governs offences falling under Chapter XI, connected with the administration of justice. It was held in Kuttiah's case that tendering evidence by affidavit is on oath and as such that was not a case where the application seeking proceedings under Sec.340 should have been dismissed at the threshold by referring to precedent, which directly holds only as regards offence enumerated in Clause (b) (ii) of Sec. 195 Cr.P.C. 9. As already stated, in the case on hand, the offence alleged to have been committed by producing a false affidavit before court, is concerning or affecting the administration of justice. Whether it was a false affidavit or not, according to the petitioner it is yet to be decided. Simply because the deponent has filed another affidavit stating that the earlier affidavit was not sworn to by her one cannot jump to a conclusion that the earlier one was false. That has to be first adjudicated by the court, the learned Crl.M.C. 3373 of 2011 10 counsel submits. The court before which that affidavit was filed alone can have predominance over the issue. If the affidavit produced in court is a false affidavit, then enquiry has to be conducted under Sec.340 Cr.P.C. It is not a case where the crime could be registered and investigated by the police. Therefore, further proceedings in Crime No.3402/2011 of Ernakulam Central Police Station is quashed. But this does not preclude the court before which the affidavit is filed to initiate proceedings under Section 340 Cr.P.C. if that court deems fit to do so. N.K. BALAKRISHNAN, JUDGE smvd