TMI Blog1977 (11) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... n off-shoot out of a habeas corpus application instituted on March 25, 1977, in the High Court of Kerala by T. V. Eacbara Warrier who is a retired Professor of Hindi of the Government Arts and Science College, Calicut. His son Rajan who was a final year student in the Regional Engineering College, Calicut, was a resident of the College Hostel. Shri Warrier received a registered letter from the Principal of the College informing him that his son, Rajan, was arrested and taken into police custody on March 1, 1976. This was a time when the proclamation of emergency had been in force in the country since June 25, 1975. Nothing, therefore, could be done in the courts in view of the majority decision of the Constitution Bench of this Court (Khanna, J. dissenting) that challenge of even mala fide orders of detention could not be entertained under article 226 of the Constitution (see Additional District Magistrate, Jabalpur v. S. S. Shukla etc. etc.([1976] suppl S.C.R.172) The heart-broken father had to make numerous efforts and entreaties in appropriate quarters, high and low, to anyhow ascertain the whereabouts of his son. The point that is relevant is that Shri Warrier also saw an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of his son, impleading the Home Secretary, Kerala, the Inspector General of Police, Kerala, and the Deputy Inspector General of Police, Crime Branch, Kerala, as the first three respondents. The application was moved on the next working day, namely, March 28, 1977, and the learned Advocate General took notice on behalf of the respondents in the petition and the case was posted to March 30, 1977, for showing cause as to why the application should not be granted. Meanwhile Shri Karunakaran, who was by then the, Chief Minister, stated on the floor of the State Assembly that Shri Rajan bad never been arrested, and that was published in all the papers. That led to the application by Shri Warrier on March 30, 1977, to implead Shri Karunakaran and the District Superintendent of Police, Kozhikode, as additional respondents to his petition. The learned Additional Advocate General took notice of this petition and the same was allowed by the High Court on that very day. Counter affidavits by the respondents, including Shri Karunakaran s, were sworn on March 31, 1977 and filed on April 4, 1977, and the case was posted to April 6, 1977. On April 6, 1977, Shri Warrier filed a reply affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers were placed under suspension by the Government and the Deputy Inspector General of Police was relieved from the Crime Branch on transfer. It was also disclosed that Criminal Case No. 304/77 under sections 342, 323, 324 read with section 34 IPC has been registered in the Crime Branch C.I.D. based on the, observations in the judgment of the High Court in the above habeas corpus petition. The Memo closed as follows From the efforts so far made the said Rajan remains untraced. The efforts to locate him continue unabated and no efforts will be spared to trace him . The above Memo was filed in the High Court on April 19, 1977, as, stated earlier. It also appears that the petition for leave to appeal to the Supreme Court against the judgment was rejected by the, High Court on April 23, 1977. Later, the petition for special leave to appeal against the judgment and order in the habeas corpus application was also rejected by this Court on April 25, 1977. It appears that Shri Karunakaran resigned as Chief Minister after the judgment of the High Court in the habeas corpus petition on April 26, 1977. On May 22, 1977, Shri Karunakaran filed his second affidavit before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Original Petition had met me on or about 10th March, 1976 and told me that he suspected that, his son is involved in the criminal case registered in connection with the attack by some persons on Kakkayam Police Station on 29- 2-1976 and that he wanted me to use my good offices to exclude his son from that case. I told him this was a crime under investigation by the police; and that it would not be proper for me as the Home Minister to interfere with the investigation by the police by issuing directions to them . He also stated in paragraph 9 as under :- I had stated in the Legislative Assembly that Sri Rajan had not been in police custody on the basis of the report of the Inspector General of Police dated 7-1-1977. Apart from this report I had no other source of information on this matter. I had no means whatever to doubt the correctness of the facts stated in the report of the Inspector, General of Police . He added in paragraph 10 as follows It is a matter of intense agony and anguish for me, as the Minister for Home, Government of Kerala, at that time, that Sri Rajan, the son of the petitioner who was taken into custody by the police on 1-3-1976 happened to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Minister could only rely on the official channel of information and he submitted before the Court all the information and he truly derived from the report of the Inspector General of Police of January 7, 1977. Mr. Mookerjee strenuously contends that no prima facie case has been made out against Shri Karunakaran, nor is it expedient in the interest of justice to lay a complaint for perjury against him. On the other band Mr. Niren De, on behalf of Shri Warrier. submits that in an appeal by special leave under article 136 of the Constitution it will be most inappropriate in a case of this nature to interfere with the discretion exercised by the High Court in laying a complaint under section 193 IPC after a regular enquiry carefully made under section 340 Cr. P.C. According to Mr. De a prima facie case has been made out and it is expedient in the interest of justice that Shri Karunakaran should face a trial in accordance with law. Chapter XXVI of the Code of Criminal Procedure 1973 makes provisions as to offenses affecting the administration of justice. Section 340 Cr.P.C. with which the chapter opens is the equivalent of the old section 476, Criminal Procedure Code, 1898. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis that the High Court held that an offence under section 193 IPC was prima facie made out. Having regard to the second affidavit of 22nd May, 1977 and for any other reasons recorded by it the aforesaid statement in that behalf was considered by the High Court as deliberately made. We should make it clear that when the trial of the appellant commences under section 193 IPC the reasons given in the main judgment of the High Court or those in the order passed under section 340(1) Cr.P. C., should not weigh with the criminal court in coming to its independent conclusion whether the offence under section 193 IPC has been fully established (against the, appellant beyond reasonable doubt. It will be for the prosecution to establish all the ingredients of the offence under section 193 IPC against the appellant and the decision will be based only on the evidence and the materials produced before the criminal court during the trial and the conclusion of the court will be independent of opinions formed by the High Court in the habeas corpus proceeding and also in the enquiry under section 340(1) Cr.P.C. An enquiry, when made, under section 340(1) Cr.P.C. is really in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the trial. It is for this very reason that although arguments were heard at length of both sides on every conceivable aspect of the case, we deliberately refrain ourselves from making any observation thereon. We feel that any observation one way or the other in respect of certain submissions made before us may have an unintended likelihood of prejudicing some party or the other at the trial. Even a remote possibility of this nature must be avoided at an costs. The fact that a prima facie case has been made out for laying a complaint does not mean that the charge has been established against a person beyond reasonable doubt. That will be thrashed out in the trial itself where the parties will have opportunity to produce evidence and controvert each other s case exhaustively without any reservation. There may be often a constraint on the part of a person sought to be proceeded against under section 340 Cr.P.C. to come out with all materials in the preliminary enquiry. That constraint will not be there in a regular trial where he will have ample opportunity to defend himself and produce all materials to show that an offence under section 193 IPC has not been made out. That se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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