IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 Crl.MC.No. 2996 of 2010() ------------------------------------- CC.540/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I , THODUPUZHA .................... PETITIONER/ACCUSED ---------------------------------- T.P. SANTHOSH KUMAR, ADVOCATE, AGED 31 YEARS, S/O.PADMANABHAN, THUNDIPPARAMBIL HOUSE, PIZHALA P.O., KADAMAKKUDI VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.S.RAJEEV RESPONDENTS/COMPLAINANTS ------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. P.A. PRABHAVATHI, CHIEF JUDICIAL MAGISTRATE, THODUPUZHA. R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2996 of 2010 -------------------------- ORDER Petitioner, a counsel who appeared for the first accused in C.C.No.44/2009 on the file of Chief Judicial Magistrate's Court, Thodupuzha, against whom, along with two others, Annexure-1 complaint was filed by learned Chief Judicial Magistrate, Thodupuzha before Judicial First Class Magistrate-I, Thodupuzha and taken cognizance of the offences under Sections 205, 467, 472, 473 and 474 read with Section 34 of Indian Penal Code as C.C.No.540/2010, filed this petition under Section 482 of Code of Criminal Procedure to quash the proceedings contending that no enquiry as provided under Section 340 of Code of Criminal Procedure was conducted and petitioner was not served with a notice in Form No.33 of Appendix-I of Criminal Rules of Practice and therefore, Annexure-1 complaint filed should not have taken cognizance by CRMC 2996/10 2 the learned Magistrate. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Entire records in C.C.No.540/2010 were called for. As it does not disclose the details of the enquiry, if any, conducted under Section 340 of Code of Criminal Procedure, records in C.C.No. 44/2009 were also called for. The proceedings paper in C.C.No.44/2009 reveals that on 15.6.2010, an application was filed by one of the sureties of the first accused therein, who is the second accused in Annexure-1 complaint, to substitute one of the sureties. The surety sought to be substituted filed documents. Learned Chief Judicial Magistrate, on perusing the documents, doubted that the document is forged. Statement of the proposed surety was recorded. When the matter was posted after lunch, first accused in C.C.No.44/2009 did not attend the court. Learned Chief Judicial Magistrate remanded the proposed surety and issued summons to Sub Registrar, Mattanchery to be present along with the CRMC 2996/10 3 filing sheet of the settlement deed to conduct an enquiry. On 18.6.2010, surety produced his details in court. Sub Registrar was examined as CW1. The surety revealed his correct name. Summons was then issued to the Village Officer and the original surety, who executed the bond for the first accused in C.C.No.44/2009. On 23.6.2010, learned Chief Judicial Magistrate directed the first accused in C.C.No.44/2009 to be present along with the sureties and also petitioner, his Advocate. Then it was revealed that original surety was not genuine. Learned Chief Judicial Magistrate, therefore, passed an order directing filing of a complaint before Judicial First Class Magistrate-I, Thodupuzha. Accordingly, Annexure-1 complaint was filed. 4. It is thus clear from the proceedings paper in C.C.No.44/2009 that though learned Chief Judicial Magistrate conducted an enquiry, it was not disclosed to the petitioner, who was appearing for the first accused in that case, whether an CRMC 2996/10 4 enquiry is being conducted under Section 340 of Code of Criminal Procedure and that too against the counsel also. Though in Annexure-1 complaint learned Chief Judicial Magistrate recorded that she is of the opinion that it is expedient in the interest of justice that an enquiry should me made into the aforesaid offences and therefore, a complaint is filed, before deciding to file a complaint, it was not recorded by the learned Chief Judicial Magistrate that it is expedient in the interest of justice to conduct an enquiry. 5. This Court in Babu P.Benedict v. Principal, Motor Accidents Claims Tribunal (2010 (1) KLT 445) considered the question whether an enquiry under Section 340 of Code of Criminal Procedure is mandatory and is it permissible for a court to take a final decision to make a complaint against a person who has committed an offence against public justice in the very same order, disposing of the main proceedings. Following the decisions in Krishna Bhat v. Keshava Bhat (1991 (1) KLT 72), CRMC 2996/10 5 Thomman v. II Additional Sessions Judge (1993 (2) KLT 774) and Moideen Sha v. Joseph Mathew (2007 (4) KLT 315), learned Single Judge held that in an enquiry, falling under Section 340 of Code of Criminal Procedure, which is affecting the administration of justice, it is imperative to record a finding that it is expedient in the interest of justice to do so and it has to be after conducing a preliminary enquiry and in every case, where a criminal court proposes to conduct an enquiry under Section 340 of Code of Criminal Procedure, it has to issue notice in Form No.33 of Appendix-I of Criminal Rules of Practice, informing the person, sought to be proceeded against, that an enquiry will be held under Section 340 of Code of Criminal Procedure to determine whether a complaint should be laid against him for the offences concerned and calling upon him to show cause why such a complaint should not be made. Even if it is taken that in a case, where the person, against whom a complaint is to be filed, is present in CRMC 2996/10 6 court and therefore, no notice as provided under Form No.33 of Appendix-I of Criminal Rules of Practice was served, it is imperative that an enquiry is proposed to be held under Section 340 of Code of Criminal Procedure against him to determine whether a complaint should laid against him for the concerned offences, he should be called upon to show cause why such a complaint should not be made. 6. The proceedings paper in C.C.No.44/2009 shows that no notice in Form No.33 of Appendix-I of Criminal Rules of Practice was served on the petitioner or the other accused. So also, they were not informed that an enquiry as provided under Section 340 of Code of Criminal Procedure is proposed to be conducted. They were also not called upon to show cause why a complaint should not be filed against them. In such circumstances, Annexure-1 complaint filed by learned Chief Judicial Magistrate, without conducting an enquiry as provided under Section 340 of Code of Criminal Procedure and following the procedureprovided CRMC 2996/10 7 therein, is illegal and based on that complaint, Judicial First Class Magistrate-I, Thodupuzha should not have taken cognizance of the offences. Petition is allowed. The cognizance taken in C.C.No.540/2010 on Annexure-1 complaint is quashed. Chief Judicial Magistrate, Thodupuzha is directed to conduct an enquiry under Section 340 of Code of Criminal Procedure against the proposed accused, including the petitioner, after serving a notice in Form No.33 of Appendix-I of Criminal Rules of Practice and thereafter pass an order in compliance with the provisions of Section 340 of Code of Criminal Procedure. Judicial First Class Magistrate-I, Thodupuzha is competent to take cognizance of the offences on such a complaint being filed, complying with the procedure provided under the Code. 24th September, 2010 (M.Sasidharan Nambiar, Judge) tkv