[Bar Bribery Scam] Can Magistrate Court institute perjury proceedings upon complaint by strangers to proceedings? Kerala High Court answers

The Kerala High Court on Monday ruled that Magistrate courts are empowered to institute prosecution for perjury upon an application under Section 340 of the Code of Criminal Procedure by a third party to the proceedings (CrPC).

. A single-judge Bench of Justice R Narayana Pisharadi , therefore, allowed a Magistrate court to proceed against a prominent Kerala Bar owner for the offence of perjury ( Sreejith Premachandran v. State of Kerala ).

. "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 High Court said. . Biju Ramesh, former president of the Kerala Bar Owners’ Association came into the public spotlight after claiming that former Kerala Minister late KM Mani and other prominent politicians were taking bribes to reduce bar licence fees.

. A petitioner, one Sreejith Premachandran approached the Kerala High Court alleging that Ramesh voluntarily produced an edited compact disc before a Magistrate while making a statement to the Magistrate under Section 164(5) of the Code of Criminal Procedure.

. Premachandran applied to the Magistrate to institute perjury proceedings against Ramesh in accordance with Section 340 and Section 195 (1)(b)(i) of the Code of Criminal Procedure (CrPC) contending that Ramesh had committed the offence of perjury under Section 193 of the Indian Penal Code

. The Court below, however, declined to entertain the petition, claiming that it did not possess the jurisdiction, since the case was presently before a Vigilance court. Relying on Section 340, which requires a Court to possess the power to record evidence and come to a judicial determination, the Magistrate court had opined that it was not the proper court for presenting a Section 340 application.

. Aggrieved, Premachandran approached the High Court challenging the subordinate court’s dismissal order.

. Ramesh' counsel challenged the proceedings on the following grounds:

Premachandran was a total stranger to proceedings which was being investigated by the Vigilance;

that the Magistrate when recording the statement under Section 164 was acting not as a court but as a judicial officer;

no application under Section 340 would lie after the conclusion of the proceedings.

. The Court rebutted each of these contentions stating that a court was not aiming to vindicate the grievance of a party when proceeding to initiate perjury prosecution but sought to safeguard the prestige and dignity of the court to maintain the confidence of people in the efficacy of the judicial process.

Therefore, a party moving an application under Section 340 was acting in the capacity of an informant, bringing to the court’s notice even situations the court might have failed to notice, the Judge reasoned. It was nowhere specified that only a party to proceedings could institute perjury proceedings.

. "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," the Kerala High Court said. . As to the second contention, the Court emphasized that a Magistrate was a court, even though he may exercise functions that did not strictly fall within the realm of judicial duties.

The Magistrate was a court by virtue of Section 3 of the Evidence Act and Section 6 of the Code of Criminal Procedure, which labelled all Judges and Magistrates generally as 'courts' and 'criminal courts' in particular.

. There was additionally no requirement that an application under Section 340 would have to be brought only during the course of such hearing under Section 340, the Court stated.

. Depending on a 1997 ruling of the Punjab and Haryana High Court, the Kerala High Court stated that an application under Section 340 could be filed even after the conclusion of the proceeding.

. Continuing on this theme, the Court found that ‘court’ for the purpose of Section 340 of CrPC was the Court before which the offence was committed, proceedings were/is pending, and had the competence to file a complaint in respect of the offence of perjury.

. Holding that the Judicial First Class Magistrate has the jurisdiction to institute prosecution for perjury upon an application under Section 340, the original petition was allowed.

The Magistrate court was accordingly directed to consider the Section 340 application and dispose it of.

. Advocates T Asaf Ali and Laliza TY represented the petitioner. Advocates P Deepthi and CP Saji argued for Ramesh. Senior Public Prosecutor B Jayasurya appeared for the Vigilance.

. [Read Judgment]

[Bar Bribery Scam] Can Magistrate Court institute perjury proceedings upon complaint by strangers to proceedings? Kerala High Court answers

Lydia Suzanne Thomas

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