Inquiry U/S 340 CrPC Mandatory, Failure Renders Entire Proceedings Conducted Thereafter Non-Est: Kerala High Court

The Kerala High Court recently reiterated that the inquiry envisaged under Section 340 of Cr.P.C is mandatory in nature and such an enquiry should be conducted before proceeding further in cases involving allegation of commission of offences under Sections 192, 193 and 195 of IPC.

Justice A. Badharudeen observed that, 

...the inquiry envisaged under Section 340 of Cr.P.C is mandatory in nature and such an enquiry should be conducted before proceeding further, in cases involving allegation of commission of offences under Sections 192, 193 and 195 of IPC. Here, evidently, no such enquiry was conducted and therefore, the entire proceedings, thereafter, are non-est.

The Petitioner in the instant case was authorized by the Managing Director of KLD Board, a Government of Kerala undertaking, to give evidence before the Munsiff Court in connection with a case, and has been alleged to have given false evidence, on the premise that, during his cross-examination, when a question was put as to lodging of police complaint and sighting of the place/property during the visit of the police to prepare the mahazar, he answered in the negative, though records showed otherwise.

It is alleged that the petitioner has given false evidence and committed the offence of perjury and a complaint was lodged against him. The Munsiff send the case to the Judicial First Class Magistrate Court-II, Peeerumedu to proceed further. On receipt of the order, the Magistrate passed an order and thereby, took cognizance of the offence punishable under Section 193 of IPC against the petitioner.

The Counsel for the petitioner contended that while passing the impugned order the Munsiff failed to conduct the mandatory inquiry provided under Section 340 of Cr.P.C. The Counsel pressed for quashing of the aforesaid proceeding.  

The Court observed that from a bare perusal of Section 340 of Cr.P.C. it can be clearly understood that, upon an application made to a court alleging the commission of an offence referred to in clause(b) of Sub-Section (1) of Section 195(offences under Sections 193 to 196 of IPC), if the 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, the court may after such preliminary inquiry, if any, as it things necessary (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (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 (e) bind over any person to appear and give evidence before such Magistrate.

The Court further observed that in Babu P. Benedict v. Principal, Motor Accidents Claims Tribunal, the Kerala High Court had considered the scope of enquiry contemplated under Section 340 of Cr.P.C. and held that the inquiry is mandatory in nature and the word 'may' appearing in the body of Section 340, has to be understood as 'shall'.

Therefore, the Court reiterated that the inquiry envisaged under Section 340 of Cr.P.C is mandatory in nature and such an enquiry should be conducted before proceeding further, in cases involving an allegation of commission of offences under Sections 192, 193 and 195 of IPC. 

The Court pointed out that in the present case no such enquiry was conducted and therefore, the entire proceedings, thereafter, are non-est.

Furthermore, the Court observed that the knowledge of an Officer representing a State Entrepreneur with regard to the facts related to a case cannot be presumed or expected, since his knowledge regarding the case emanates from the official records that he could gather within the short span of time he obtained and likewise, all the omissions or false statements given by a witness, shall not be construed as substantive to attract the offence of perjury.

...nobody, in the ordinary circumstances would expect that an Officer representing a State Entrepreneur, would be aware of each and everything in relation to the case in minute niceties, so that he could say everything in the affirmative. Likewise, all the omissions or false statements given by a witness, shall not be construed as substantive to attract the offence of perjury.

The Court thereby allowed the Petition.  

Therefore, even otherwise, it could not be held that the petitioner herein intentionally given false evidence before the court, so as to proceed under Section 340 read with Section 195 of Cr.P.C. Therefore, the entire proceedings are vitiated and the same are liable to be quashed.

Senior Advocate Sumathy Dandapani and Advocate Millu Dandapani appeared for the Petitioner.

Public Prosecutor Advocate G. Sudheer appeared for the Respondent.   

Case Title: Sajeevan v. State of Kerala

Citation: 2022 LiveLaw (Ker) 644

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