Dismissed

Shafi @ Kozhi Shafi v. Abdul Salam

Kerala HC23 Aug 2017Crl.MC/4208/2013

Case brief

AI extract

What is this about?

The High Court dismissed the criminal miscellaneous petition filed by an accused seeking to quash an FIR registered for impersonation and fraud committed during a trial. It held that the Chief Judicial Magistrate acted legally by forwarding the complaint to the police for investigation as directed by the Sessions Judge and was not acting illegally. Consequently, the inherent jurisdiction under Sec

What did the court decide?

This Crl.M.C. is dismissed; the petition to quash the FIR is not allowed.

Shafi @ Kozhi Shafi Vs Abdul Salam — Corruption | Kerala HC (2017)

¶1

C.R.

¶2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶3

PRESENT:

¶4

THE HONOURABLE MRS. JUSTICE SHIRCY V.

¶5

WEDNESDAY, THE 23RD DAY OF AUGUST 2017/1ST BHADRA, 1939

¶6

Crl.MC.No. 4208 of 2013 ()

¶7

AGAINST THE JUDGMENT IN CC 185/2009 of C.J.M.,KASARAGOD DATED 28-012011 CRIME NO. 1065/2004 OF KASARAGOD POLICE STATION , KASARGOD

¶8

PETITIONER/ACCUSED:

¶9

SHAFI @ KOZHI SHAFI, AGED 30 YEARS ZIA MANZIL, ARKADY, KUMBLA, KASARAGOD DISTRICT.

¶10

BY ADV. SRI.T.G.RAJENDRAN

¶11

RESPONDENTS/RESPONDENT/STATE:

¶12

1. ABDUL SALAM, AGED 19 YEARS S/O.ABDULLA KUNHI, THEKKOT HOUSE, ARIKADY VILLAGE, KUMBLA P.O., KASARGOD.

¶13

2. SUB INSPECTOR OF POLICE, MANJESHWAR POLICE STATION

¶14

3. STATE REP; BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

¶15

BY ADGP SRI SURESH BABU THOMAS R BY PUBLIC PROSECUTOR SRI UDAYAKUMAR K.B.

¶16

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01.06.2017, THE COURT ON 23-08-2017, PASSED THE FOLLOWING:

¶17

Crl.MC.No. 4208 of 2013 ()

¶18

APPENDIX
PETITIONER(S) -------------	' EXHIBITS ---------- ANNEXURE-I:	TRUE COPY OF THE FIRST INFORMATION REPORT
	ANNEXURE-II:	COPY OF THE COMPLAINT FILED BY THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE AS CMP 6826/04
	ANNEXURE-III:	COPY OF THE JUDGEMENT IN CC 185/09 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE, KASARAGOD.
RESPONDENT(S) -------------	' EXHIBITS ----------

KS.

True copy

P.S. To Judge

C.R.

SHIRCY V., J.

= = = = = = = = = = = = = = = = Crl. M.C. No.4208 of 2013

¶25

= = = = = = = = = = = = = = = = Dated this the 23^rd day of August, 2017

¶26

ORDER

¶27

The petitioner who is the first accused is before this Court with the petition under Section 482 Cr.P.C. to quash the First Information Report vide Crime No. 1065/2004 of Kasaragod Police Station registered against him and others for the offences punishable under sections 193, 196, 205, 120B read with Section 149 of IPC pursuant to the complaint of the 1^st respondent filed under Section 340 Cr.P.C as C.M.P.6826/2004 before the Chief Judicial Magistrate, Kasaragod.

¶28

The brief facts of the case as emerged from the records need to be noted for deciding the issue mooted for consideration. Crime No. 338/2002 of Kumbala Police Station was registered against five accused for having

¶29

CRL MC 4208/2013

¶30

¶31

committed offences punishable under Sections 143, 147, 341, 323, 324, 452, 506(ii) read with Section 149 IPC. The case was taken on file by the court concerned as C.C. No. 519/2002 in which the injured were also five in number, namely Abdul Riyas, Shamsuddin, Beevi, Ahammed Kabir and Abdul Salam. It was alleged that CW1, 2 and 4 were employed in ship and they were not available in the locality to appear before the court for several months. So also the accused 2 and 4 were also not there as they were working in Gulf. While so the complainant, an injured got information from a police official who came to meet him that one accused told him that the case against the accused ended in acquittal. So he immediately made an enquiry and to his surprise it was realized that the accused produced some persons before the court by impersonating them as the injured and the witnesses and managed to get an acquittal. It was also learnt that they misled the court by making false submission that the case was compromised

¶32

CRL MC 4208/2013

¶33

¶34

and settled between the parties. It was also learnt that this petitioner who is an injured was falsely reported as not available in station to appear before the court to give evidence. Like that, for the accused who were not available in the locality to appear before the court, someone else had appeared before the court as the accused and thus cheated the court. Actually, the injured never appeared before the court and they were not examined as witnesses but false representations were made before the court that the matter was settled and managed to get an acquittal as per a Judgment dated 20.07.2004 by practicing fraud, before the court.

¶35

The learned Sessions Judge, Kasaragod in a Suo Motu revision (C.R.P.34/2004) considered the matter with the Revision Petition (C.R.P.36/2004) filed by an injured and set aside the order of acquittal and directed the trial court to have a de novo trial of the case and to take further steps for the conduct of an enquiry to form an opinion on the

¶36

CRL MC 4208/2013

¶37

¶38

question of impersonation of accused and witnesses and thus de novo trial was conducted. Annexure-2 is the complaint preferred by the 1^st respondent herein under Section 340 Cr.P.C. to take appropriate action against this petitioner and the co-accused. The learned Sessions Judge in the order observed as follows:

¶39

''9. So, on the facts presented in the case where the involvement of persons other than parties covered by the proceedings is strongly to be suspected in the impersonation of some of the accused and also the witnesses produced and examined and as already a complaint by one of the charge witnesses, who is stated of impersonated, is pending before the learned Magistrate, he shall refer such complaint to the police for a full fledged investigation and once the investigation is completed and report being filed, taking that also into account, on the complaint already presented, a requisite opinion has to be formed under Section 340 Cr.P.C regarding the filing of a complaint against the persons involved for the offences disclosed. The role of the advocates involved, whether they are privies to the fraud, if any committed or free from blame, but misguided, has to be considered on the materials placed in the enquiry and appropriate steps to be taken as the situation demand.''

¶40

CRL MC 4208/2013

¶41

¶42

The operative portion of the order reads as:

¶43

“ In the result, the order of acquittal passed in favour of the accused is set aside directing the court below to have a de novo trial of the case and also to take such further steps in conducting of an enquiry under Section 340 Cr.P.C. subject to the observations made above and in accordance with law and form a requisite opinion on the question of impersonation of accused and witnesses in the case and of a filing a complaint thereof, if so found.

¶44

The accused, all of them, shall appear, and their sureties to produce them before the court below on 30.9.2004. In the event of default of any of the accused to appear and the failure of the sureties to cause their prosecution, without sufficient cause, on the date specified above, the magistrate shall forthwith take coercive steps to secure the presence of such accused, apart from proceeding against them and the sureties under Section 446 Cr.P.C.”

¶45

Thereafter the learned Chief Judicial Magistrate forwarded the complaint filed under Section 340 Cr.P.C by the 1^st respondent to the police for a full-fledged investigation in compliance of the direction in the aforesaid revisions. The order under challenge reads as follows:

¶46

CRL MC 4208/2013

¶47

¶48

“ As per the direction of the Sessions Court in Crl.R.P.Nos.34/2004 and 36/2004, I forward this complaint to SHO, Kazaragod directing to conduct a full fledged investigation and report.”

¶49

Heard Sri. T.G.Rajendran, the learned counsel for the petitioner as well Sri. Suresh Babu Thomas, the learned Additional Director General of Prosecution.

¶50

Assailing the impugned order, the learned counsel for the petitioner, firstly submits that the learned Chief Judicial Magistrate has completely deviated from the procedure contemplated under Section 340 Cr.P.C resulting illegal registration of Annexure-A1 F.I.R. as Crime No. 1065/2014 under Sections 193, 196, 205, 120B read with 149 IPC. He secondly contends that the offences under Sections 193, 196, 205 of IPC are non-cognizable offences and the police cannot investigate the same as per law, and that even after the lapse of seven years, the proceedings are still pending and hence this petition is to quash the F.I.R registered as 1065/2004 of Kasaragod Police Station .On the

¶51

CRL MC 4208/2013

¶52

¶53

other hand, the learned Additional Director General of Prosecution supports the impugned order and strenuously urges to uphold the order. The sole point which arises for determination is whether the impugned order is vitiated in the eyes of law as the learned Chief Judicial Magistrate has not followed the procedure under Section 340 Cr.P.C as well the mandatory provisions of Section 195 Cr.P.C.

¶54

Section 340 of the Criminal Procedure Code which

¶55

deals with the Procedure in cases mentioned in Section 195 reads as follows :

¶56

''340.Procedure in cases mentioned in section 195.-

¶57

(1) 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 necessary,-

¶58

(a) record a finding to that effect;

¶59

CRL MC 4208/2013

¶60

¶61

(b) make a complaint thereof in writing;

¶62

¶63

(d) take sufficient security for 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; and

¶64

(e) bind over any person to appear and give evidence before such Magistrate.

¶65

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.

¶66

(3) A complaint made under this section shall be signed,-

¶67

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

¶68

(b) in any other case, by the presiding officer of the Court.

¶69

(4) In this section, "Court" has the same meaning as in section 195.

¶70

Section 195 of the Code of Criminal Procedure

reads as :

CRL MC 4208/2013

''195.Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-

¶75

(1) No Court shall take cognizance-

¶76

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code,(45 of 1860) or

¶77

(ii) of any abetment of, or attempt to commit, such offence, or

¶78

(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

¶79

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

¶80

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

¶81

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in subclause (I) or sub-clause (ii), except on the complaint in writing of that Court, or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

¶82

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

¶83

Provided that no such withdrawal shall be ordered if the

¶84

trial in the Court of first instance has been concluded.

¶85

CRL MC 4208/2013

¶86

¶87

(3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

¶88

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the Principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate:

¶89

Provided that-

¶90

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.

¶91

In the instant case, the records reveal that offences

¶92

under Sections 193, 196, 205 and 120B read with 149 of IPC are alleged to have been committed in a proceedings in a court of law affecting the administration of justice. Section 340 of the Code provides the procedure for offences enumerated in Section 195(1)(b)(i) of the Code. According to the learned counsel for the petitioner, a complaint which

¶93

CRL MC 4208/2013

¶94

¶95

is filed under Section 340 alleging commission of offfences under Section 193, 196, 205 of the IPC can be proceeded only as per the procedure laid down in Section 340 of the Code and non-compliance would vitiate the prosecution. Of-course the provisions under Section 195 and Section 340 of the Code are to protect persons from needlessly harassed by vexatious prosecution due to personal vendatta or retaliation against any person. To fortify the argument the learned counsel for the petitioner relies on the proposition in Advocate N.B.Chandramohan v. State of Kerala (2012 (3) KHC 526) that the direction of the Magistrate without conducting an enquiry, to the police to register a case and investigate is illegal. It is observed in paragraph 3 of the said decision as follows:

¶96

“3. Annexure - A complaint filed by the Sheristadar of the Court imputed of allegations constituting contempt of lawful authority interfering with the administration of justice by production of false and fabricated documents before the Court. When that be so, cognizance of such an offence is governed by S.195(b)(i) and (ii) of the Code. When such a

¶97

CRL MC 4208/2013

¶98

¶99

complaint is filed before any Court can the Magistrate without taking cognizance refer such complaint for investigation by police is the question that emerges for consideration. Such reference, made, and sanction accorded by the Magistrate to conduct investigation after taking cognizance of offence, is patently erroneous and unsustainable. When such complaint is filed, the Magistrate, after taking cognizance, has to proceed with in accordance with law. He may conduct an enquiry under S.202 of the Code before issuing process to the accused, if need be. Otherwise, he has to proceed with the enquiry as provided by law issuing summons to the accused, having regard to the nature of the offences imputed in the complaint. The direction/order passed by the learned Magistrate in the present case, according sanction to the Sub-Inspector of Police, to register a crime and proceed with the case is illegal. Even if a report is filed by the Magistrate after investigation indicting the accused of any offence on such report, Magistrate cannot take cognizance of the offence, but only on the complaint filed originally before that Court.''

¶100

The Learned Additional Director General of Prosecution by placing reliance on the decision of the Apex Court in State of Punjab v. Raj Singh and Anr,(AIR 1998 SC 768) has argued that the procedure adopted by the court in forwarding the complaint to the police cannot be

¶101

CRL MC 4208/2013

¶102

¶103

said to be illegal as the statutory power of the police to investigate a case has not been lost under Section 340 of Cr.P.C. In 1998 SC 768 (supra) it has been observed as follows:

¶104

“From a plain reading of Section 195 Cr.P.C it is manifest that it comes into operation at the stage when the Court intends to take cognizance of an offence under Section 190(1)Cr.P.C and it has nothing to do with the statutory power of the police to investigate into an F.I.R.which discloses a cognizable offence, in accordance with chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in Court. In other words, the statutory power of the Police to investigate under the Code is not in any way controlled or circumscribed by Section 195 Cr.P.C. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the Court would not be competent to take cognizance thereof in view of the embargo of Section 195 (1)(b) Cr.P.C., but nothing therein deters the Court from filing a complaint for the offence on the basis of the F.I.R. (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in section 340 Cr.P.C.”

¶105

CRL MC 4208/2013

¶106

¶107

Subsequently agreeing with Raj Singh's case (supra) in Narayanadas v. State of Karnataka [AIR 2004 SC 555]

¶108

the Apex Court held as follows:

¶109

“Sections 195 and 340 do not control or circumscribe the power of the police to investigate, under the Criminal Procedure Code. Once investigation is completed then the embargo in Section 195 would come into play and the Court would not be competent to take cognizance. However that Court could then file a complaint for the offence on the basis of the FIR and the material collected during investigation provided the procedure laid down in Section 340, Criminal Procedure Code is followed. Thus no right of the Respondents, much less the right to file an appeal under Section 341, is affected.''

¶110

It is discernible from the records that the learned Sessions Judge keeping the settled principle of law in mind instructed the Chief Judicial Magistrate in the Revision Petition, to direct the investigating officer to have a fullfledged investigation by the police as persons who are not parties to the proceedings are also suspected to be involved in the alleged impersonation and fraud practiced upon the

¶111

CRL MC 4208/2013

¶112

¶113

court and that the report of the police can be made use of, as a material for considering whether a complaint has to be filed and what all are the offences committed. The further direction is that court need not take cognizance on the report of the police, but only for filing its own complaint, after enquiry for which report can be made use of. It is significant that the order of learned Sessions Judge has not been challenged by any of the parties. The petitioner filed the application under Section 482 Cr.P.C. to quash the order of the learned Chief Judicial Magistrate dated 01.10.2004. No illegality had been committed by the learned Sessions Judge as well, by the learned Chief Judicial Magistrate by complying with the said order. For the above reasons, it is not possible to infer that the procedure adopted by the learned Chief Judicial Magistrate is illegal.

¶114

It is well settled that the inherent jurisdiction under section 482 Cr.P.C has to be exercised sparingly and carefully with caution to avoid abuse of the process of the

¶115

CRL MC 4208/2013

¶116

¶117

court and prevent miscarriage of justice and to secure the ends of justice. Here, the alleged offences are of exceptional nature and gravity. Who all are the culprits involved in the alleged crime and their participation in committing the alleged offences have to be unearthed and booked for the same. The argument advanced by the learned counsel for the petitioner that the order is vitiated in the eyes of law in as much as the mandatory provisions as envisaged under section 340 of the Code have not complied with and the procedure adopted for registration of Annexure A1 FIR, suffers from grave error and calls for rectification, is devoid of merits.

¶118

The learned Chief Judicial Magistrate has to deal with the matter in accordance with the established proposition of law and record a finding on the basis of the report that will be submitted by the Investigating Officer after a full fledged investigation and the investigation is permitted to proceed with. Based on the consideration of the facts and

¶119

CRL MC 4208/2013

¶120

¶121

circumstances summarized above, I am fully satisfied that the present case is not at all a fit case to exercise the jurisdiction of this Court under Section 482 of Cr.P.C. and to quash Annexure A1 First Information Report No. 1065 of 2004 of Kasaragod Police Station.

¶122

In the result , this Crl.M.C. is accordingly dismissed.

¶123

SHIRCY V JUDGE

¶124

¶125

CRL MC 4208/2013 18

Shafi @ Kozhi Shafi v. Abdul Salam

Case brief

What is this about?

What did the court decide?

Shafi @ Kozhi Shafi v. Abdul Salam

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sajeesh Vs State of Kerala

Shihabuddhin.K Vs State of Kerala

Faisal Salim Vs State of Kerala

Santhosh Kumar Vs State of Kerala

Illiyas Vs State of Kerala

Rony Vs State of Kerala