Party Seeking Action For Perjury May Approach Forum Where False Evidence Given, No Private Complaint To Jurisdictional Magistrate: Kerala HC

The Kerala High Court recently considered the question as to whether an aggrieved party can file a private complaint under Section 200 Cr.P.C. before the jurisdictional Magistrate in relation to offence of perjury (enumerated in Section 195(1)(b) Cr.P.C.) and answered the same in the negative. 

Thus in this case where the aggrieved party approached the Magistrate Court with a private complaint under Section 200 of CrPC, instead of approaching the Family Court where the false evidence had been given, the Single Judge Bench of Justice Kauser Edappagath, observed, 

"A party who is aggrieved by the inaction on the part of the court, where offences enumerated in Clause (b) of Sub Section (1) of Section 195 Cr.P.C. was committed, in initiating action under Section 340 of Cr.P.C. ('Perjury') can only move to such court with an application under Section 340(1). He cannot directly move the jurisdictional Magistrate Court with a private complaint under Section 200 of Cr.P.C". 

Section 195(1)(b) Cr.P.C. provides that no Court shall take cognizance of any offence:

(i) punishable under Sections 193 to 196 (pertaining to false evidence), 199 (false statement), 200 (using as true any declaration known to be false), 205 to 211 (false personation, fraudulent concealment, etc), and 228 (Intentional insult or interruption to public servant sitting in judicial proceeding) of the IPC, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) described in section 463 (Forgery), or punishable under section 471 (Using as genuine a forged document or electronic record), section 475 or section 476 (pertaining to counterfeiting device or mark for authenticating documents) 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

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

The Case 

The petitioner claimed to be the legally wedded husband of the 1st respondent which the latter disputed, while not disputing a relationship between the two. A crime was registered against the petitioner based on a complaint by the 1st respondent that the former had allegedly committed rape on her on the false promise of marriage. During the pendency of the case, the petitioner filed an original petition before the Family Court at Thalassery, against the 1st respondent, for restitution of conjugal rights, alleging that she was his legally wedded wife. 

The petitioner filed an affidavit before the Family Court, Thalassery stating the date and venue of his marriage to the 1st respondent. The latter in turn, filed a private complaint before the Judicial First Class Magistrate Court (JFCM), Payyoli, alleging the affidavit to be a false one, and added that two other similar false affidavits had been filed by the petitioner in other proceedings between the parties. The 1st respondent thus alleged that the petitioner had committed the offences under Sections 499 (Defamation), 196 (Using evidence known to be false), 199, 200, and 209 (Dishonestly making false claim in Court) of the I.P.C by filing false affidavit at the Court.

The Magistrate conducted an enquiry into the matter and issued process to the petitioner under Section 204 CrPC, which order is challenged in the present petition. 

Findings of the Court

The Court found merit in the contention advanced by the counsel for the petitioner that in relation to offences enumerated in Section 195(1)(b), a complaint can only be filed by the court concerned as provided in Section 340 of Cr.P.C. and there cannot be a private complaint by the aggrieved party.

The Court was of the considered view that Sections 195 and 304 Cr.P.C. are supplementary to each other, and that the latter provision removes the bar set by the former, and confers exclusive jurisdiction on the court to file the complaint after satisfying itself prima facie about the correctness of the offences said to have been committed and covered by Section 195(1)(b). 

"A conjoint reading of Sections 195 and 340 of Cr.P.C makes it clear that it is for the court alone to proceed against the party who committed the offence enumerated in Clause (b) of Sub Section (1) of Section 195," the Court observed. 

The Court further proceeded to discuss the ambit and scope of the two provisions and stated that the action under Section 195 Cr.P.C. could be activated in terms of the procedure laid down under Section 340 by anybody on an application or by the court suo motu. 

The Judge observed that such an application could only be filed before the Court where the false evidence was given or the false claim was made, and when the same is filed, the Court may, after holding such preliminary enquiry if any, as contemplated under Section 340 Cr.P.C., make a complaint thereof in writing at the jurisdictional Magistrate. 

"It is open to the court to entertain an application under Section 340 even at the instance of a stranger to the proceedings during which the offence is alleged to have been committed and out of which the application arises. It is also not necessary that the application should be made during proceedings out of which it arises or immediately thereafter. Such an application by an aggrieved party is maintainable even after the termination of the proceedings Where the court acts under Section 340 and makes a complaint, it is the court and not the private party who moves the jurisdictional Magistrate court by an application for taking action, that is the complainant," the Court added. 

On consideration of the above aspects, the Court held that the 1st respondent could not have directly approached the jurisdictional Magistrate Court with a private complaint under Section 200 of Cr.P.C. in the matter, and accordingly, held that the court below was not justified in taking cognizance of the offences under Sections 196, 199, 200 and 209 of IPC based on such private complaint. 

It thus set aside the Order of the Magistrate but proceeded to add that the 1st respondent shall be at liberty to file an application under Section 340(1) of CrPC at the Family Court, which shall be disposed of by the latter in accordance with law. 

The petitioner was represented by Advocates P.C. Anil Kumar and Manu M. Thomas. Senior Public Prosecutor S. Rekha appeared on behalf of the respondents.

Case Title: Sajith N.K. v. Jishabai Puthukudi & Anr. 

Citation: 2023 LiveLaw (Ker) 398

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