J U D G M E N T

The petitioner filed an application under Section 340 (1) of the Code of Criminal Procedure, 1973 (for short 'the Code') in the Court of the Judicial First Class Magistrate-II, Thiruvananthapuram for initiating prosecution against the first respondent by instituting a complaint for committing an offence punishable under Section 193 of the Indian Penal Code (IPC).

2. Ext.P1 is the copy of the application filed by the petitioner under Section 340 (1) of the Code. The crux of the allegations in this application is that the first respondent, while giving statement before the Judicial First Class Magistrate-II, Thiruvananthapuram under Section 164(5) of the Code, in the course of investigation of the case which was registered as VC- No.6/2014/SIU-1 by the Vigilance and Anti-corruption Bureau (VACB), made false statement on oath and he voluntarily produced a mobile phone and an edited compact disc before the learned Magistrate. It is alleged that the compact disc produced by the first respondent before the learned Magistrate contained record of the conversations contained in the mobile phone and that such recorded conversations had been edited.

3. As per Ext.P2 order, the court below found that it has no jurisdiction to entertain the application filed by the petitioner and the application was returned for presentation before the proper court.

4. The petitioner has filed this Original Petition under Article 227 of the Constitution of India, challenging the legality and propriety of Ext.P2 order.

5. Heard learned counsel for the petitioner and the first respondent and also the learned Public Prosecutor.

6. The relevant portion of Ext.P2 order reads as follows:

“Heard. Perused the records. The 164 statement of witness No.1 in the above mentioned case is recorded by the learned magistrate on 30.5.2015 as per the direction of the Hon'ble Chief Judicial Magistrate, Thiruvananthapuram. No judicial proceeding with respect to that offence is pending before the Judicial I Class Magistrate Court-II, Thiruvananthapuram. The term 'Court' in S.340(1) Cr.P.C indicates that there must be power to record evidence and to come to a judicial determinates on the evidence so recorded. Here the matter is pending before the vigilance court. Hence this court has no jurisdiction to entertain this petition and it is returned for presenting before proper court.”

7. Learned counsel for the petitioner contended that the court below failed to exercise its jurisdiction by refusing to entertain the application filed by the petitioner. Learned counsel would contend that the petitioner had filed the application under Section 340 (1) of the Code in the proper Court which had got the power to institute a complaint against the first respondent for committing any of the offences enumerated under Section 195 (1) (b)(i) of the Code.

8. Learned counsel for the first respondent has raised the following contentions. (1) The petitioner is a total stranger to the case registered and investigated by the VACB and the proceeding before the learned Magistrate and therefore, the petitioner has no locus standi to file an application under Section 340(1) of the Code. (2) When the statement of a witness is recorded by the Magistrate under Section 164 of the Code, the Magistrate exercises power under the Code not as a Court but in his capacity as a judicial officer. Therefore, there was no proceeding, much less any judicial proceeding, in any court in relation to which any of the offences enumerated under Section 195(1)(b)(i) of the Code was committed. (3) No application under Section 340 (1) of the Code would lie after conclusion of the proceeding, if any, which was pending before a court.

9. Section 340(1) of the Code states that, when, upon an application made to it in that 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, whi