IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1855 of 2009()
1. PRASANTH, S/O.DIVAKARAN, AGED 30 YEARS,
... Petitioner
2. DR.MANOJ MATHEW, VYTHIRI GOVT.HOSPITAL,
Vs
1. DHANYA P., D/O.KRISHNANUNNI,
... Respondent
2. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.SARVOTHAMAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :16/06/2009
O R D E R
M.SASIDHARAN NAMBIAR, J.
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Crl.M.C. No. 1855 of 2009
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Dated this the 16th day of June, 2009.
O R D E R
Petitioners are accused 1 and 2 in C.C.No.213/2008 on
the file of Chief Judicial Magistrate Court, Kalpetta, taken
cognizance by the Magistrate on Annexure III complaint
filed by the Sheristadar of Sessions Court, Wayanad
pursuant to the directions given by the learned Sessions
Judge in Annexure I order in a petition filed by first
respondent. This petition is filed under Section 482 of Code
of Criminal Procedure to quash Annexure III complaint as
well as the cognizance taken pursuant to Annexure I order.
2. Learned Counsel appearing for the petitioners
was heard.
3. The argument of the learned Counsel is that in
Annexure I order, learned Sessions Judge wrongly found
that petitioners committed offences under Sections 191,
192 and 193 of Indian Penal Code without even granting an
Crl.M.C.No.1855/2009
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opportunity to the petitioners to be heard and though the
order is purported to be passed under Section 340 of Code
of Criminal Procedure, there is no finding that permission is
to be granted to prosecute the petitioners as it is expedient
in the interest of justice and therefore Annexure I order is
illegal. Learned Counsel also argued that there is no
material before the Sessions Court to find that the
certificate issued by second petitioner, after examination of
first respondent to the first petitioner, which was produced
by first petitioner in the bail application filed before the
Sessions Court is a forged document and based on the
evidence of another doctor, who claims to have treated the
first respondent, Sessions Judge should not have found that
petitioners falsely created the medical certificate issued by
second petitioner to the effect that first respondent was
pregnant prior to her marriage with first petitioner.
Learned Counsel therefore argued that the entire
proceedings is to be quashed.
Crl.M.C.No.1855/2009
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4. Though the learned Sessions Judge conducted an
enquiry under Section 340 of Code of Criminal Procedure
and under Annexure I order directed lodging a complaint
before the Magistrate for offences under Sections 191, 192
and 193 of Indian Penal Code, when there is no case for the
first respondent before the Sessions Court in Crl.M.P.No.
1458/2008, or for the Sessions Court that the certificate
produced before the Court was tampered from court
subsequent to its production, Section 340 of Code of
Criminal Procedure does not apply. The offence alleged in
Annexure III complaint is not in relation to a document
during the time when the document was in custodia legis.
Then only action as required under Section 340 of Code of
Criminal Procedure is required as expedient in the interest
of justice. This is a case where first petitioner obtained a
false certificate allegedly prepared by second petitioner and
produced it before the Court. There is no allegation that
anything was done to the certificate produced before the
Crl.M.C.No.1855/2009
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court subsequent to its production when it was in the
custody of the court. In such circumstances, Annexure III
complaint cannot be challenged for the reason that the
procedure provided under Section 340 of Code of Criminal
Procedure was not complied with.
5. Then the question is when the Sessions Judge is
prima facie satisfied that the certificate produced before the
court by first petitioner and issued by second petitioner is a
false document, Sessions Judge is competent to direct
prosecution of petitioners for an offence under Section 193
of Indian Penal Code. The Sessions Judge is competent to
direct action when it is prima facie found that offence is
committed. If so the complaint or the proceeding initiated
cannot be quashed as sought for. In such circumstances,
the question whether the certificate issued by the second
petitioner that the first respondent was pregnant even
before her marriage with first petitioner is a false document
or not is to be decided by the Chief Judicial Magistrate, on
Crl.M.C.No.1855/2009
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the evidence to be let in and untramelled by whatever is
stated in Annexure III. In any case, this is not a case where
the extraordinary jurisdiction of this Court is to be
exercised as sought for by the petitioners. Petitioners are
entitled to claim discharge under Section 239 of Code of
Criminal Procedure, if charge is not framed. Petition is
dismissed.
M.SASIDHARAN NAMBIAR
JUDGE
dkr