Kerala High Court: R.Narayana Pisharadi J., while allowing the present petition clarified, “Though Section 340 of the Code is a generic section for offences committed under Section 195(1)(b), the same has different and exclusive application to clauses (i) and (ii) of Section 195(1)(b) of the Code”
The petitioner filed an application under Section 340 (1) of the Code of Criminal Procedure, 1973 in the Court of Judicial Magistrate, Thiruvananthapuram for initiating prosecution against the first respondent by instituting a complaint for committing an offence punishable under Section 193 of the Penal Code, 1860. The crux of the allegations in this application is that the first respondent while giving a statement before the Judicial Magistrate under Section 164(5) of the Code, made a false statement on oath and produced a mobile phone and a compact disc having edited conversation.
Court observed;
On plea of Locus Standi as raised by the respondents
“A court directing a prosecution for perjury does so not to vindicate the grievance of any party but to safeguard the prestige and the dignity of the Court and to maintain the confidence of the people in the efficacy of the judicial process. Solemnity is attached to an oath taken by a witness. When a party speaks to a thing which is not true or which he has reason to believe to be not true under oath he is flouting the administration of justice and the Court is interested in seeing that this does not go unnoticed. The offender must then be brought to book. Therefore the court initiates a prosecution wherein the accused can have a fair trial. This is primarily a matter for the Court and not for a party even when a party moves a petition for taking action for perjury against another. The party, even when he is an applicant under Section 340 of the Code, is more or less an informant bringing to the Court’s notice a situation which may call for action, a situation which possibly the court may otherwise miss to notice”
On Magistrate acting as ‘persona designata’ and not as Court while recording statement under S. 164
Reliance was placed on Section 6 which regards Magistrate as Criminal Courts and also Section 3 of the Evidence Act, 1872 which says Court includes all Judges and Magistrates. In the words of the Court, “It is no doubt true that the Code assigns to a Magistrate various functions which do not strictly fall within the sphere of judicial duties. It does not mean that a Magistrate does not act as a Court. The Code does not contain any provision to the effect that no function performed by a Magistrate in relation to criminal proceedings whether handled by him or dealt with by the police would be regarded as function performed by a Court. Even while exercising the powers under the Code at a point of time before taking cognizance of any offence, a Magistrate acts as a Court. Taking cognizance of an offence by a Magistrate under Section 190 of the Code is not a condition precedent for him to be regarded as a Court”
On contention raised saying that an application under Section 340(1) CrPC can be filed only during an ongoing proceeding
Court referred the case of Wazir Singh v. Kulwant Singh, 1997 SCC OnLine P&H 1084, wherein it was said, “An application under Section 340(1) of the Code can be filed even after the conclusion of the proceeding”
Allowing the present petition, it was held that the Court of Judicial Magistrate, Thiruvananthapuram has jurisdiction to entertain and consider the application filed by the petitioner under Section 340(1) of the Code.[Sreejith Premachandran v. Biju Ramesh, OP(Crl.).No.383 OF 2020, decided on 18-12-2020]
Sakshi Shukla, Editorial Assistant has put this story together