ORDER
1. This appeal is filed against taking cognizance of the offences in CC No. 66 of 1995 on the file of the Additional Judicial Magistrate of First Class, Razole on the complaint filed by the Ist Additional District & Sessions Judge, East Godavari at Rajahmundry under Section 195(1)(b)(i), Cr.P.C. for the offences under sections 193, 196, 197 and 218 of I.P.C.
2. The facts giving rise to the filing of the appeal are, briefly, as follows :-
3. The Inspector of Police, Razole filed chargesheet against Gollamandala Pedda Dharmarao and Gollamandla Anandarao in Crime No. 51/1993 for the offences under sections 302 and 201, I.P.C. of Malikipuram Police Station alleging that A-2 is the son of A-1 and the deceased Moka Kanakanjeneyulu are the residents of Gadepalli village. It was alleged that A-1 and A-2 were responsible for the death of the deceased, Anjaneyulu on 16-6-1993. On receipt of information about the death of the deceased, Kanakanjaneyulu, the police registered a case, took up investigation and after completion of formalities viz., preparation of inquest, etc., the dead body was sent to the Government Hospital, Razole for autopsy. The petitioner herein, Dr. Gayathri Devi, conducted autopsy over the dead body of the deceased and could not give opinion as to the cause of death. The matter was taken to the notice of the Professor. Forensic Medicine, Rangaraya Medical College, Kakinada and on perusal of the post-mortem report issued by the petitioner herein, the said Professor Dr. M. Naga Rajarao advised for exhumation and re-post-mortem of the dead body of the deceased. Then the Mandal Revenue Officer, by name G. Ramachandra Rao exhumed the dead body in the presence of mediators and Assistant Professor, Forensic Medicine, Rangaraya Medical College, Kakinada, Dr. T. Rama Rao, conducted re-post-mortem examination and opined that the deceased died due to head injury. Then on the basis of the re-post-mortem examination report, the section of law was altered from Section 174, Cr.P.C. to Section 302, I.P.C., investigated the case and filed charge-sheet against accused 1 and 2.
4. The case was committed to the Court of Session and trial was taken up before the 1st Addl. Sessions Judge, East Godavari at Rajahmundry. During trial of the case, the petitioner herein was examined as PW-14 and marked the post-mortem report given by her as Ex.P-18. The Assistant Professor, Dr. T. Rama Rao, who conducted re-post-mortem examination was examined as PW-16 and Dr. M. Naga Raja Rao, Professor, Forensic Medicine, was examined as PW-17 and marked the relevant documents and the second post-mortem report as Exs. P-22 to P-29.
5. The learned Sessions Judge acquitted the accused and observed in paras 17, 18 and 32 of his judgment as follows :-
“.. 17. By analysing the evidence of PW-14, PW-16 and PW-17, coupled with Ex.P-18 and Ex.P-19, Ex.P-26 and, Ex.P-27 and Ex.P-28 it is clear that the cause of death of Moka Kanaka Anjaneyulu was due to head injury which is ante-mortem in nature and it is undoubtedly a case of homicide.
18. Dr. Gayathri Devi (PW-14) who conducted the 1st post-mortem examination over the dead body of the deceased Kanaka Anjaneyulu on 17-6-1993 deliberately suppressed the injuries found on the dead body of the deceased Kanaka Anjaneyulu and went to the extent of removing the hyoid bone, thyroid cartilege and cricoid cartilege from the dead body of the deceased in order to suppress the evidence of strangulation and issued a fabricated post-mortem certificate (Ex.P-18) and also gave evidence in this Court in support of the said fabricated post-mortem certificate, in order to help the accused to escape from the clutches of law and it is a fit case to launch prosecution against the said Doctor Gayathri Devi (PW-14) u/Ss. 193, 197 and 218, I.P.C. and other appropriate provisions of Indian Penal Code.
32. It is further ordered that the prosecution should be launched against Dr. Gayathri, Devi (PW-14) who is now working as Woman Assistant Civil Surgeon, Government Hospital, Palakol, West Godavari District for the offence under section 218, I.P.C. for framing incorrect record i.e. false post-mortem certificate (Ex.P-18) with an intent to save A-1 and A-2 from legal punishment and also under section 193, I.P.C. for fabricating false evidence for the purpose of being used in judicial proceedings. The copies of this judgment should be communicated to the Chief Secretary to Government of Andhra Pradesh, Hyderabad, and also to the Director of Medical Services, Government of Andhra Pradesh, Hyderabad, for taking necessary action …….”
6. The learned Sessions Judge, in pursuance of the observations made in the judgment filed a complaint against the petitioner before Additional Judicial Magistrate of First Class, Razole for the offences under Ss. 193, 196, 197 and 218, I.P.C. relying on the observation made by him in the judgment citing the Head Clerk of the Additional District & Sessions Court and the Doctors Sri M. Naga Raja Rao, Professor, Forensic Medicine, who gave opinion and Dr. T. Rama Rao, who conducted second post-mortem examination, as witnesses. The learned Magistrate took the case on file and issued summons to the petitioner.
7. Now the petitioner filed this appeal questioning the correctness of the filing of the complaint against her by the learned Sessions Judge.
8. The points that arise for consideration are :
i) Whether the learned Sessions Judge has not given finding that it is expedient in the interest of justice to prosecute the petitioner ?
ii) Whether it is mandatory to issue show cause notice before ordering prosecution of the petitioner ?
9. The learned Counsel for the petitioner urged only two grounds before me. The first ground urged is that the learned Sessions Judge has not given the finding that it is expedient in the interest of justice to prosecute the petitioner and it is a condition precedent for launching the prosecution against the petitioner, as provided under Section 340(1), Cr.P.C. The second ground urged is that no opportunity was given to the petitioner before ordering prosecution and he relied on a decision Nimmakayala Audi Narayanna v. State of Andhra Pradesh, . He also relied on a decision K.T.M.S. Mohd. v. Union of India, 1992 SCC (Crl) 572 : (1992 Cri LJ 2781).
10. But the learned Public Prosecutor submitted that the learned Sessions Judge has given a specific finding in para 18 of the judgment observing that it is a fit case to launch prosecution against the petitioner and the judgment need not contain the actual words used in Section 340, Cr.P.C. and suffice to observe that it is a fit case to launch prosecution against the petitioner and it clearly indicates that the learned Sessions Judge thought it fit that it is expedient in the interest of justice to prosecute the petitioner for the offences under Ss. 193, 196, 197 and 218 of I.P.C. and accordingly laid the charge-sheet before the concerned Magistrate and the contention of the learned Counsel for the petitioner has no substance.
11. It is true that on a perusal of paras 17, 18 and 32 and other parts of the judgment, it is clear that the learned Sessions Judge specifically observed that the petitioner has deliberately suppressed the injuries found on the dead body of the deceased and gone to the extent of removing the hyoid bone and thyroid cartilage etc., from the dead body of the deceased in order to suppress the evidence of strangulation and issued fabricated post-mortem certificate and gave evidence in the Court in support of the said certificate in order to help the accused to escape from the clutches of law and finally observed that it is a fit case to launch prosecution against the petitioner. The above observations clearly and unambiguously indicate that the learned Sessions Judge applied his mind and came to the conclusion that the petitioner fabricated a false document and gave evidence with an oblique motive, and also gave specific finding that it is a fit case to launch prosecution against the petitioner. Therefore, simply because the learned Sessions Judge has not mentioned that it is expedient in the interest of justice to launch prosecution, does not mean that the learned Sessions Judge has not applied his mind and not thought it fit to launch prosecution. It is not the actual words mentioned in Section 340, Cr.P.C. required to be used, but the question is whether the learned Sessions Judge has applied his mind and came to the conclusion whether it is a fit case to launch prosecution in the interest of justice. The various observations referred to supra, clearly show that he thought it fit and expedient to launch prosecution against the petitioner and accordingly ordered. Therefore, it cannot be said by any stretch of imagination that the learned Sessions Judge has not given any finding that it is expedient in the interest of justice to launch prosecution against the petitioner.
12. The learned Public Prosecutor further submitted with regard to the other contentions of the learned Counsel for the appellant, that it is a condition precedent to give the opportunity before launching prosecution and it is only discretion of the Court depending upon circumstances of each case and the same was observed by this Court in Nimmakayala Audi Narayanamma’s case, first referred to above. Therefore, it cannot be said that it is illegal to initiate prosecution against the petitioner without giving opportunity.
13. It is true that it is observed by this Court in Nimmakayala Audi Narayanamma’s case, relied on by the appellants counsel, in para 2 of (sic) as follows (at page 443 of Cri LJ) :-
“…… It is not mandatory but discretionary for the Court, depending upon the facts and circumstances of each case, either to conduct any preliminary enquiry or to dispense with the same, to form an opinion that it is in the interests of justice to prosecute the person or persons that committed perjury ….”
But in further paras this Court held that it is reasonable and also desirable to give an opportunity by issuing show cause notice to the accused before launching prosecution against the person or persons.
The Supreme Court in a decision K. Karunakaran v. V. Eachara Warrier, observed as follows (at page 345 of Cri LJ) :-
“… At an enquiry held by the Court under section 340(1), Cr.P.C. irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action …”
The observations were referred by the Supreme Court in K.T.M.S. Mohd’s case, 2nd referred to above, relied on by the learned Counsel for the appellant.
14. Thus it is clear that the two conditions required to launch the prosecution under section 340, Cr.P.C. are to form an opinion that there is a prima facie case to launch prosecution if unrebutted may have the likelihood of establishing the specified offence and it is expedient in the interest of justice to take such an action. Therefore, it cannot be said that it is a condition precedent to issue show cause notice before filing the charge-sheet against a person under Section 340, Cr.P.C. It all depends on facts and circumstances of each case. If the Presiding Officer thought it fit to give an opportunity before launching the prosecution, he may do so, but if the circumstances of the case warrant that no such notice is necessary, the Presiding Officer can order to initiate prosecution for fabricating false document and giving evidence etc. and file the charge-sheet. Therefore, it cannot be said that the filing of charge-sheet against the petitioner in CC No. 66/95 on the file of the Judicial Magistrate of First Class, Razole is vitiated for not issuing the show cause notice before laying the charge-sheet.
15. Therefore, on considering the entire material on record and the totality of circumstances appearing in the case, I do not find any illegality in filing the charge-sheet against the petitioner in CC No. 66 of 1995 on the file of the Addl. Judicial Magistrate of First Class, Razole, for the offences under sections 193, 196, 197 and 218 of I.P.C. Therefore, there is no merit in the appeal.
16. In the result, the appeal fails and is dismissed.
17. Appeal dismissed.