IMPORTANT POINTS
(1) Offences referred to under Section 195(1)(b), Cr.P.C. will get attracted only with respect to a document after it has been produced or given in evidence in a proceeding in any court.
(2) In a case of malicious prosecution, which gives rise to a tortious liability, only a suit for damages can be filed by establishing ingredients to maintain such a suit. Grounds for maintaining a suit for malicious prosecution cannot form basis for filing a petition under Section 340, Cr.P.C. since it has to independently satisfy requirements of Section 195(1)(b), Cr.P.C.

ORDER

N. Anand Venkatesh, J.—This Criminal Original Petition has been filed challenging the summons issued by the Court below directing the Petitioner to attend an enquiry initiated by the court below based on the complaint given by the Respondent under Section 340 of The Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”).

2. The Respondent who was arrayed as A3 in S.C. No. 123 of 2005 before the Additional District and Sessions Court, FTC III, Chennai, faced trial along with 3 other accused persons for an offence under Sections 120B, 307, 450, 451, 384, 506-Part II of the Indian Penal Code, 1860 (hereinafter referred to as “I.P.C”) read with Section 109, I.P.C. The FIR in this case was registered in Crime No. 473 of 2002 by the F-2 Police Station, Egmore and later on the investigation was transferred to the file of the CBCID. The Petitioner who was then the Deputy Superintendent of Police, CBCID was assigned the task of investigating the case. It was based on the final report filed by the Petitioner, the accused persons faced the trial before the concerned court.

3. The trial court on appreciation of the oral and documentary evidence and after considering the facts and circumstances of the case was pleased to acquit all the accused persons from all the charges through a judgement dt. 23.02.2006.

4. This judgement was taken on appeal by the CBCID before this Court in Crl. Appeal No. 52 of 2010. This Court by a judgement dt. 22.06.2017, dismissed the appeal and confirmed the judgment passed by the trial court.

5. The Petitioner thereafter, filed a complaint before the court below in the year 2019 under Section 340, Cr.P.C. against the defacto complainant and the Petitioner herein, on the ground that they have committed an offence under Section 211, I.P.C., and the entire case was a malicious prosecution against the Respondent.

6. The court below on receipt of the complaint proceeded to issue summons to the Petitioner to conduct an enquiry before acting upon the complaint. Aggrieved by the summons issued by the court below, the present petition has been filed before this Court.

7. Mr. V. Lakshminarayanan, learned counsel appearing on behalf of the Petitioner submitted that the Petitioner had only investigated the FIR after it was transferred to CBCID and the mere fact that the Respondent was acquitted by the court will not attract an offence under Section 211, I.P.C. The learned counsel further submitted that if the offence under Section 211, I.P.C. cannot be made applicable against the Petitioner, there was no occasion for the court below to even conduct a preliminary enquiry by issuing summons to the Petitioner. It was submitted that the sum and substance of the complaint given by the Respondent is that there was a malicious prosecution against the Respondent and if the claim made by the Respondent is taken to be true, the Respondent can only file a suit claiming for damages for malicious prosecution before the competent court, and it cannot be a ground to file a complaint under Section 340, Cr.P.C.

8. The learned counsel in order to substantiate his submissions relied upon the following judgements of the Hon’ble Supreme Court:

a. Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370;

b. Santokh Singh & Ors. v. Izhar Hussan & Anr., (1973) 2 SCC 406;

c. Sasikala Pushpa v. State of T.N, (2019) 6 SCC 477; and

d. S. Mukanchand Bothra v. Rajiv Gandhi Memorial Educational Charitable Trust &Ors., 2015 SCC OnLine Mad 11421.

9. Per contra, the learned counsel appearing on behalf of the Respondent submitted that the findings given by the trial court and this Hon’ble Court in the criminal appeal clearly show that the entire case is false and the Respondent has been intentionally roped in as an accused for having filed a Habeas Corpus Petition questioning an illegal arrest made by the police. The learned counsel further submitted that the court below has only called the Petitioner for a preliminary en