VEERAPPA CHETTIAR Vs. FRITSCHI

JUDGEMENT

(1.) The petitioner had filed a criminal complaint against respondents 1 and 2 (accused for having committed offences under S.196 and 471 IPC. in respect of certain proceedings in O. S. 27/60 on the file of the Subordinate Judge of Kottarakara. It was alleged that a certain document was forged and fraudulently got up by the accused with the intention of producing and making use of the same in the said proceedings. On receipt of the summons the first accused presented a petition raising the preliminary objection that the court had no jurisdiction to entertain the complaint or take cognisance of the alleged offence having regard to the provisions of S.195 Cr. P.C., and that in the absence of a complaint by the Subordinate Judge of Kottarakara the complaint filed in court by the petitioner cannot be entertained and has to be dismissed. Learned Additional First Class Magistrate of Kottarakara upheld the objection and discharged the accused, under S.253(2) Cr. P.C. This revision has been filed challenging the correctness of the order.

(2.) It cannot be denied that if at any stage of the proceedings the court found a legal bar to the prosecution of the accused, it is open to the court to discharge the accused. What is stated in this case is that there is a bar created by the terms of S.195(1)(b) and therefore the court cannot proceed with the trial without a proper complaint before him.

(3.) That the terms of the petitioners complaint do bear the constructions sought to be placed upon it by the learned counsel for the respondents is clear, I think from a reading of the complaint and it is the allegation in the complaint which would attract the mischief of S.195(1)(b). In Para.2 of the complaint it is stated that the petitioner did not send any mercy petition as stated in the affidavit of the accused, that it is a forged one and that both the first and the second accused together concocted such a document and knowing that it is a forged document, they with dishonest and fraudulent intention produced it before court to persuade the court against the complainant. And at the end of the complaint it is stated that the document was got up by the accused with the dishonest and fraudulent intention of using it in court and that necessary mens rea is evident from these facts. It is a clear assertion that the document was forged for the express purpose of affording evidence in the case and so it is evident that the offence complained of is really one under S.193 IPC.