IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2996 of 2010()
1. T.P.SANTHOSH KUMAR, ADVOCATE,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. P.A.PRABHAVATHI,
For Petitioner :SRI.S.RAJEEV
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/09/2010
O R D E R
M.Sasidharan Nambiar, J.
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Crl.M.C.No.2996 of 2010
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ORDER
Petitioner, a counsel who appeared for the
first accused in C.C.No.44/2009 on the file of
Chief Judicial Magistrate’s Court, Thodupuzha,
against whom, along with two others, Annexure-1
complaint was filed by learned Chief Judicial
Magistrate, Thodupuzha before Judicial First Class
Magistrate-I, Thodupuzha and taken cognizance of
the offences under Sections 205, 467, 472, 473 and
474 read with Section 34 of Indian Penal Code as
C.C.No.540/2010, filed this petition under Section
482 of Code of Criminal Procedure to quash the
proceedings contending that no enquiry as provided
under Section 340 of Code of Criminal Procedure was
conducted and petitioner was not served with a
notice in Form No.33 of Appendix-I of Criminal
Rules of Practice and therefore, Annexure-1
complaint filed should not have taken cognizance by
CRMC 2996/10 2
the learned Magistrate.
2. Learned counsel appearing for the petitioner
and learned Public Prosecutor were heard.
3. Entire records in C.C.No.540/2010 were
called for. As it does not disclose the details of
the enquiry, if any, conducted under Section 340 of
Code of Criminal Procedure, records in C.C.No.
44/2009 were also called for. The proceedings paper
in C.C.No.44/2009 reveals that on 15.6.2010, an
application was filed by one of the sureties of the
first accused therein, who is the second accused in
Annexure-1 complaint, to substitute one of the
sureties. The surety sought to be substituted filed
documents. Learned Chief Judicial Magistrate, on
perusing the documents, doubted that the document
is forged. Statement of the proposed surety was
recorded. When the matter was posted after lunch,
first accused in C.C.No.44/2009 did not attend the
court. Learned Chief Judicial Magistrate remanded
the proposed surety and issued summons to Sub
Registrar, Mattanchery to be present along with the
CRMC 2996/10 3
filing sheet of the settlement deed to conduct an
enquiry. On 18.6.2010, surety produced his details
in court. Sub Registrar was examined as CW1. The
surety revealed his correct name. Summons was then
issued to the Village Officer and the original
surety, who executed the bond for the first accused
in C.C.No.44/2009. On 23.6.2010, learned Chief
Judicial Magistrate directed the first accused in
C.C.No.44/2009 to be present along with the
sureties and also petitioner, his Advocate. Then it
was revealed that original surety was not genuine.
Learned Chief Judicial Magistrate, therefore,
passed an order directing filing of a complaint
before Judicial First Class Magistrate-I,
Thodupuzha. Accordingly, Annexure-1 complaint was
filed.
4. It is thus clear from the proceedings paper
in C.C.No.44/2009 that though learned Chief
Judicial Magistrate conducted an enquiry, it was
not disclosed to the petitioner, who was appearing
for the first accused in that case, whether an
CRMC 2996/10 4
enquiry is being conducted under Section 340 of
Code of Criminal Procedure and that too against the
counsel also. Though in Annexure-1 complaint
learned Chief Judicial Magistrate recorded that she
is of the opinion that it is expedient in the
interest of justice that an enquiry should me made
into the aforesaid offences and therefore, a
complaint is filed, before deciding to file a
complaint, it was not recorded by the learned Chief
Judicial Magistrate that it is expedient in the
interest of justice to conduct an enquiry.
5. This Court in Babu P.Benedict v. Principal,
Motor Accidents Claims Tribunal (2010 (1) KLT 445)
considered the question whether an enquiry under
Section 340 of Code of Criminal Procedure is
mandatory and is it permissible for a court to take
a final decision to make a complaint against a
person who has committed an offence against public
justice in the very same order, disposing of the
main proceedings. Following the decisions in
Krishna Bhat v. Keshava Bhat (1991 (1) KLT 72),
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Thomman v. II Additional Sessions Judge (1993 (2)
KLT 774) and Moideen Sha v. Joseph Mathew (2007 (4)
KLT 315), learned Single Judge held that in an
enquiry, falling under Section 340 of Code of
Criminal Procedure, which is affecting the
administration of justice, it is imperative to
record a finding that it is expedient in the
interest of justice to do so and it has to be after
conducing a preliminary enquiry and in every case,
where a criminal court proposes to conduct an
enquiry under Section 340 of Code of Criminal
Procedure, it has to issue notice in Form No.33 of
Appendix-I of Criminal Rules of Practice, informing
the person, sought to be proceeded against, that an
enquiry will be held under Section 340 of Code of
Criminal Procedure to determine whether a complaint
should be laid against him for the offences
concerned and calling upon him to show cause why
such a complaint should not be made. Even if it is
taken that in a case, where the person, against
whom a complaint is to be filed, is present in
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court and therefore, no notice as provided under
Form No.33 of Appendix-I of Criminal Rules of
Practice was served, it is imperative that an
enquiry is proposed to be held under Section 340 of
Code of Criminal Procedure against him to determine
whether a complaint should laid against him for the
concerned offences, he should be called upon to
show cause why such a complaint should not be made.
6. The proceedings paper in C.C.No.44/2009
shows that no notice in Form No.33 of Appendix-I of
Criminal Rules of Practice was served on the
petitioner or the other accused. So also, they were
not informed that an enquiry as provided under
Section 340 of Code of Criminal Procedure is
proposed to be conducted. They were also not called
upon to show cause why a complaint should not be
filed against them. In such circumstances,
Annexure-1 complaint filed by learned Chief
Judicial Magistrate, without conducting an enquiry
as provided under Section 340 of Code of Criminal
Procedure and following the procedureprovided
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therein, is illegal and based on that complaint,
Judicial First Class Magistrate-I, Thodupuzha
should not have taken cognizance of the offences.
Petition is allowed. The cognizance taken in
C.C.No.540/2010 on Annexure-1 complaint is quashed.
Chief Judicial Magistrate, Thodupuzha is directed
to conduct an enquiry under Section 340 of Code of
Criminal Procedure against the proposed accused,
including the petitioner, after serving a notice in
Form No.33 of Appendix-I of Criminal Rules of
Practice and thereafter pass an order in compliance
with the provisions of Section 340 of Code of
Criminal Procedure. Judicial First Class
Magistrate-I, Thodupuzha is competent to take
cognizance of the offences on such a complaint
being filed, complying with the procedure provided
under the Code.
24th September, 2010 (M.Sasidharan Nambiar, Judge)
tkv