IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 Crl.MC.No. 1855 of 2009 ------------------------- CC.213/2008 of CHIEF JUDICIAL MAGISTRATE COURT ,KALPETTA CRMP.1458/2008 of SESSIONS COURT, WAYANAD, KALPETTA. .................... PETITIONER(S): RESPONDENTS/ACCUSED 1 & 2 ---------------------------------------- 1. PRASANTH, S/O.DIVAKARAN, AGED 30 YEARS, KOTTAKKAL HOSUE, CHOORAMALA P.O., MEPPADI. 2. DR.MANOJ MATHEW, VYTHIRI GOVT.HOSPITAL, VYTHIRI, WAYANAD. BY ADV. SRI.SARVOTHAMAN RESPONDENT(S): COMPLAINANT & STATE ; ------------------------------- 1. DHANYA P., D/O.KRISHNANUNNI, PALATHODI HOUSE, PUTHOORVAYAL P.O., MEPPADI, WAYANAD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR MR.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PKK M.SASIDHARAN NAMBIAR, J. ================== Crl.M.C. No. 1855 of 2009 ================== Dated this the 16th day of June, 2009. O R D E R Petitioners are accused 1 and 2 in C.C.No.213/2008 on the file of Chief Judicial Magistrate Court, Kalpetta, taken cognizance by the Magistrate on Annexure III complaint filed by the Sheristadar of Sessions Court, Wayanad pursuant to the directions given by the learned Sessions Judge in Annexure I order in a petition filed by first respondent. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure III complaint as well as the cognizance taken pursuant to Annexure I order. 2. Learned Counsel appearing for the petitioners was heard. 3. The argument of the learned Counsel is that in Annexure I order, learned Sessions Judge wrongly found that petitioners committed offences under Sections 191, 192 and 193 of Indian Penal Code without even granting an Crl.M.C.No.1855/2009 -2- opportunity to the petitioners to be heard and though the order is purported to be passed under Section 340 of Code of Criminal Procedure, there is no finding that permission is to be granted to prosecute the petitioners as it is expedient in the interest of justice and therefore Annexure I order is illegal. Learned Counsel also argued that there is no material before the Sessions Court to find that the certificate issued by second petitioner, after examination of first respondent to the first petitioner, which was produced by first petitioner in the bail application filed before the Sessions Court is a forged document and based on the evidence of another doctor, who claims to have treated the first respondent, Sessions Judge should not have found that petitioners falsely created the medical certificate issued by second petitioner to the effect that first respondent was pregnant prior to her marriage with first petitioner. Learned Counsel therefore argued that the entire proceedings is to be quashed. Crl.M.C.No.1855/2009 -3- 4. Though the learned Sessions Judge conducted an enquiry under Section 340 of Code of Criminal Procedure and under Annexure I order directed lodging a complaint before the Magistrate for offences under Sections 191, 192 and 193 of Indian Penal Code, when there is no case for the first respondent before the Sessions Court in Crl.M.P.No. 1458/2008, or for the Sessions Court that the certificate produced before the Court was tampered from court subsequent to its production, Section 340 of Code of Criminal Procedure does not apply. The offence alleged in Annexure III complaint is not in relation to a document during the time when the document was in custodia legis. Then only action as required under Section 340 of Code of Criminal Procedure is required as expedient in the interest of justice. This is a case where first petitioner obtained a false certificate allegedly prepared by second petitioner and produced it before the Court. There is no allegation that anything was done to the certificate produced before the Crl.M.C.No.1855/2009 -4- court subsequent to its production when it was in the custody of the court. In such circumstances, Annexure III complaint cannot be challenged for the reason that the procedure provided under Section 340 of Code of Criminal Procedure was not complied with. 5. Then the question is when the Sessions Judge is prima facie satisfied that the certificate produced before the court by first petitioner and issued by second petitioner is a false document, Sessions Judge is competent to direct prosecution of petitioners for an offence under Section 193 of Indian Penal Code. The Sessions Judge is competent to direct action when it is prima facie found that offence is committed. If so the complaint or the proceeding initiated cannot be quashed as sought for. In such circumstances, the question whether the certificate issued by the second petitioner that the first respondent was pregnant even before her marriage with first petitioner is a false document or not is to be decided by the Chief Judicial Magistrate, on Crl.M.C.No.1855/2009 -5- the evidence to be let in and untramelled by whatever is stated in Annexure III. In any case, this is not a case where the extraordinary jurisdiction of this Court is to be exercised as sought for by the petitioners. Petitioners are entitled to claim discharge under Section 239 of Code of Criminal Procedure, if charge is not framed. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE dkr