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1996(2) CRIMES 344
KERALA HIGH COURT
K.P. Balanarayana Marar, J.
Johnson - Appellant
versus
State of Kerala - Respondent
Crl. Appeal No. 485 of 1994
Decided on 20.9.1995
Counsel for the parties:
For the Appellant: P.K. Ashokan.
For the Respondent: Franklin Chellath
IMPORTANT POINT
A preliminary enquiry contemplated under Section 340 of the Code of Criminal Procedure is a must is seen to have been made without referring to the phrase "may after such preliminary enquiry, if any, as it thinks necessary".
Headnote:(i) Criminal Procedure Code, 1973 Sections 195(1)(b) and 340 - Satisfaction of court before making enquiry that of fence under clause (b) of Sub-section (1) of Section 195, Criminal P.C. committed Satisfaction not subjective one but objective one - In interests of justice it is expedient that enquiry should be made into that offence.
Held: The opinion or satisfaction contemplated under the section is not a subjective one but an objective one which should be reflected in the finding recorded by the Court. Such an order must be supported by valid and justifiable grounds. The Court can hold a preliminary enquiry only after forming the opinion as required in Sub-section (1) of Section 340 of the Code. What is important is not the actual words used by the Court but the expression of the view that in the interest of justice the person concerned deserves to be prosecuted. In other words, the Court making a complaint has to be satisfied that it appears that an offence under clause (b) of Subsection (1) of section 195 has been committed and that it is expedient in the interests of justice that an enquiry should be made into that offence. In short, the Court should see whether the person has given the false evidence intentionally. (Para 5)
(ii) Criminal Procedure Code, 1973Section 340(1) - Holding of preliminary enquiry not mandatory but discretionary Discretion to be exercised judicially - Legislature did not contemplate holding of preliminary enquiry in all cases but only in cases where court feels that such enquiry necessary.
Held: The holding of a pre1iminary enquiry is not mandatory but discretionary. Still that discretion should be exercised judicially. The section only provides for making such preliminary enquiry as may be necessary. But it is always desirable that such a pre1iminary enquiry be made before the Court decides to make a complaint. In a case where the materials available before the Court are sufficient there is no necessity of making a preliminary enquiry. On the other hand, when the materials are insufficient to establish a prima frcie case it is better to make a preliminary enquiry. The Legislature did not contemplate holding of a preliminary enquiry in all cases but only in cases where the Court feels that such an enquiry is necessary. 'That is manifested from the phrase "may after such preliminary enquiry, if any, as it thinks necessary". (Para 7)
Result: Appeal dismissed
JUDGMENT
K.P. BaIanarayana Marar, J. - Appellant was a witness in Sessions Case 63/92 before Sessions Court, Thrissur. He was treated hostile to the prosecution and cross examined by the Public Prosecutor. By judgment dated 17.6.1993 the Sessions Judge found the accused guilty and convicted the accused and sentenced him to undergo imprisonment for life.
While so, a direction was given in the said judgment to register a miscellaneous case against the appellant of the offence under Section 195(1) of the Code of Criminal Procedure. A complaint dated 29.6.1993 was thereafter filed before the Chief Judicial Magistrate, Thrissur. Ext. Al is a copy of that complaint. Appellant seeks quashing of that complaint.
2. Heard appellant and Public Prosecutor.
3. The grounds mentioned in the appeal
memorandum to quash the complaint are: (i) The Sessions Judge had not recorded a finding that an offence under Section 195(1)(b) appears to have been committed by the appellant; (ii) the Sessions Judge has not reached a conclusion that it is expedient in the interest of justice to make a com plaint; (iii) the evidence tendered by the appellant would not spell out circumstances to render a finding that he had committed an offence punishable under Section 193, I.P.C:; and (iv) the Sessions Judge had not properly exercised the discretion before ordering prosecution and no show cause notice was issued before filing the complaint.
4. In order to appreciate the contentions advanced on both sides it is appropriate to extract Sub-section (l) of Section 304 of the Code of Criminal Procedure. The sub-section reads:
"When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks it necessary
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the First Class having jurisdiction;
(d) take sufficient security of the appearance of the accused before such Magistrate or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate, am
(e) bind over any person to appear and give evidence before such Magistrate."
5. The Court should first of all form an opinion that it is expedient in the interests of justice that an enquiry should be made into any offence referred to in clause (b) of Sub-section (1) of Section 195 which appears to have been committed. The opinion or satisfaction contemplated under the section is not a subjective one but an objective one which should be reflected in the finding recorded by the Court. Such an order must be supported by valid and justifiable grounds. The Court can hold a preliminary enquiry only after forming the opinion as required in Sub-section (1) of Section 340 of the Code. What is important is not the actua1 words used by the Court but the expression of the view that in the interest of justice the person concerned deserves to be prosecuted. In other words, the Court making a complaint has to be satisfied that it appears that an offence under clause (b) of Subsection (1) of section 195 has been committed and that it is expedient in the interests of justice that an enquiry should be made into that offence. In short, the Court should see whether the person has given the false evidence intentionally.
6. The next stage is the recording of the finding to the effect that it is expedient that an enquiry should be made. The sub-section specifically enjoined a duty on the Court to record a finding to that effect which implies that an enquiry has to be made. Even if the
