The court ruled that perjury proceedings must be stayed pending the resolution of an appeal against the main judgment to prevent conflicting outcomes.

ORDER

These two Criminal Miscellaneous Cases are connected and therefore, I am disposing of these Criminal Miscellaneous Cases by a common order.

2. The petitioners in these cases are counter petitioners in MC No.6/2018 and MC No.7/2018 in SC No.420/2012 on the files of Additional District and Sessions Court, Iranjalakuda. As per judgment dated 26.03.2018, the learned Sessions Judge disposed SC No.420/2012 and initiated proceedings under Section 340CrPC against the petitioners in these cases and accordingly MC No.6/2018 and MC No.7/2018 registered. The short point raised by the petitioners is that the judgment in SC No.420/2012 is challenged before this Court by

6 filing Crl.A.No.451/2018 and it is pending. In the light of the principle laid down by this Court in Sam Vincet Vs. State of Kerala [2008 (4) KHC 96], the proceedings is to be stayed till Criminal Appeal is finally disposed of is the submission. I think there is force in the above argument. The relevant portion of the judgment in Sam Vincent's case is extracted hereunder:

"4. Where a witness examined before a Criminal Court is sought to be prosecuted by a Court for an offence punishable under S.193 IPC which appears to have been committed by such a witness while giving evidence before the Court, it is open to the Trial Court to do so, if it is of the opinion that such a course is expedient in the interest of justice. But the Court can order prosecution of each witness only after a preliminary enquiry under S.340 CrPC, after giving notice in Form 33 to Appendix 1 of the Criminal Rules of

7 Practice, Kerala, 1982. When such a decision is taken by the Trial Court and a complaint is preferred by the Trial Court or a superior Court to which such Trial Court is subordinate, the person against whom such a complaint has been made by such a Trial Court, has a right of appeal under S.341 CrPC. If such person files an appeal under S.341 CrPC, he can obviously seek a stay of further proceedings in the complaint preferred against him in the prosecution under S.193 IPC. In such a case, the Magistrate before whom such a complaint is filed will have to stay his hands until the appeal is disposed or the stay is vacated. Apart from the above provision, S.343(2) CrPC also provides for adjournment of the proceedings initiated on the basis of the complaint, if it is shown that an appeal is pending against the decision arrived at in the judicial proceedings out of which the complaint has been instituted.

8 S.343 CrPC reads as follows:

Procedure of Magistrate taking cognizance.-- (1) A Magistrate to whom a complaint is made under S.340 or S.341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.

(2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided

5. Sub-section 2 of S.343 CrPC contemplates a situation where the judgment passed in the main proceedings out of which the

9 decision was taken to prosecute the witness concerned is appealed against and is pending The trial in a prosecution in the course of which a witness is proceeded against for perjury may either end in a conviction or an acquittal In either case, the accused or the Public Prosecutor, as the case may be may prefer an appeal before the superior Court. S.343(2) CrPC contemplates a situation where such an appeal is pending before the appellate Court not at the instance of the witness who is proceeded against, but at the instance of the parties to the trial in the main case In such a contingency the Magistrate is given a power to stay the trial of the case for perjury. The obvious reason for such a provision is that in the appeal preferred from the ma