The court's control over offences related to false evidence and public justice, and the necessity of a preliminary enquiry to determine the expediency of prosecution in the interest of justice.

JUDGMENT :

Kauser Edappagath, J.

Can prosecution for perjury be maintained against a public servant under Section 340 r/w 195 of Cr. P.C unless prior sanction under Section 197 of Cr.P.C is obtained? – this is the interesting question that falls for consideration in this criminal appeal filed under Section 341 of Cr.P.C.

2. The appellant was the 10th accused in SC No.867/2012 on the file of the Court of Session, Special Additional Sessions Judge (Marad Cases), Kozhikode (for short, “the trial court”). The appellant, along with fifty-one others, was tried for the offences punishable under Sections 143, 147, 148, 302 r/w 149, 465, 471, 118, 201, 212, 120B, 109 of IPC and Sections 3 and 5 of the Explosive Substances Act, 1908. The 2nd respondent was one of the investigating officers, and the 4th respondent was a police officer who was a member of the investigating team of the above case. The 3rd respondent was an attestor to Ext.P61 mahazar marked in the above case.

3. The prosecution allegation, in brief, in SC No.867/2012, is that pursuant to a criminal conspiracy hatched by A8 to A14, with the assistance of A1, A3, A5, A7, A15 to A18, A20 to A25, and A27 to A30, at about 22.10 hours, on 4/5/2012, A1 to A7 came in an Innova car bearing a false registration number driven by A1 and rammed the car into the motorbike driven by Sri.T.P. Chandrasekharan, who was a leader of the Revolutionary Marxist Party. After causing the latter to be thrown on the road, they hacked him to death on the public road at a place called Vallikkad by striking him with swords. A3 also used a country bomb to cause an explosion that would prevent witnesses from approaching the scene of the crime, A1 to A7 then fled the scene of the crime and were assisted by other accused who either harboured them or destroyed valuable evidence that pointed to them.

4. The charge against the appellant was under Sections 120B and 302 r/w 109 of IPC. After a full-fledged trial, the trial court convicted A1 to A7, A8, A11, A13, A18 and A31 and acquitted the remaining accused, including the appellant. In appeal, this court convicted the appellant by a separate judgment passed today.

5. After the conclusion of the trial in SC No.867/2012, the appellant preferred Crl. M.P.No.109/2014 invoking Section 340 of Cr.P.C. before the trial court against the respondents 2 to 4. It was alleged that while the 2nd respondent was investigating the case, during the investigation, he falsely created Ext.P61 observation mahazar showing the presence of A8 K.C. Ramachandran in it. One of the instances of conspiracy alleged by the prosecution is that sometime between 3.00 and 3.30 p.m. on 2/4/2012, A8 K.C. Ramachandran, A9 C.H.Asokan, A10 K.K. Krishnan (appellant) and A14 P. Mohanan met at the flower shop owned by A30 Raveendran at Orkatteri and conspired to take the life of T.P. Chandrasekharan. The 2nd respondent arrested A8 at 17.00 hrs on 16/5/2012. The 2nd respondent gave evidence as PW165 that after the arrest, A8 gave a confession statement to him that if he were taken, he would point out the flower shop where they conspired to murder T.P.Chandrasekharan and pursuant to the said disclosure statement, as led by A8, he reached Orkatteri town and prepared Ext.P61 observation mahazar of the flower shop which was pointed out to him by A8. The 3rd respondent is the attestor to Ext.P61, and the 4th respondent is the Senior CPO attached to Koyilandy police station who assisted the 2nd respondent in preparing Ext.P61. The 2nd respondent, however, deposed in cross-examination that after arrest, A8 was produced before the Judicial First-Class Magistrate Court, Kunnamangalam, only at about 18.30 hours on that day, and he obtained police custody of A8 only at about 19.00 hours. However, Ext.P61 observation mahazar was prepared at 17.00 hours on 17/5/2012. It is alleged that Ext.P61 is a fabricated document and that respondents 2 to 4 gave false evidence before the trial court with the intention to procure the