K. Karunakaran Vs. T. V. Eachara
Warrier  INSC 217 (16 November 1977)
CITATION: 1978 AIR 290 1978 SCR (2) 209 1978
SCC (1) 18
CITATOR INFO :
RF 1992 SC1831 (34)
Constitution of India--Article 136-Exercise
of power to prevent gross injustice-Perverse or palpably erroneous
orders--Criminal Procedure Code 1973 Sec. 340(1), 341--Criminal Procedure Code
1898 Sec. 476B-Indian Penal Code-Sec. 193-Sanction for prosecution for perjury
granted by High Court-When this Court would interfere.
The respondent's son was a student in the
Regional Engineering College, Calicut, and was a resident of the College
Hostel. The respondent received a registered letter from the Principal of the
College informing him that his son Rajan was arrested and taken into police
custody. This was during the time when the proclamation of emergency was in
force, since June, 1975. The respondent had to make numerous efforts and
entreaties in appropriate quarters to anyhow ascertain the whereabouts of his
son. He saw the appellant who was then the Home Minister of Kerala. He also met
the then Chief Minister of Kerala and wrote a representation to the Home
Minister ,of the Government of India with copies to all members of Parliament
A reminder was also sent. The respondent,
however, did not receive any reply from any source. Thereafter, the respondent
filed a Habeas Corpus Petition in the High Court in which the present
appellant, inter alia was joined as the respondent. The High Court issued a
writ of Habeas Corpus to the respondents in that petition directing them to
produce Shri Rajan S/o the respondent in the Court. The court also ordered that
if for any reason the respondent thought that they would not be able to produce
the said Rajan they should file a Memo submitting the information about the
steps taken to-trace Rajan and that they failed to locate him. In the course of
the proceedings in the Habeas Corpus Petition, the appellant filed two
affidavits.In the first affidavit the appellant denied having told the
respondent that his son was in police custody and he further stated that he had
no knowledge that the said Rajan was in police custody at any time. In the
subsequent affidavit he deposed that after Rajan was taken into police custody
he was be laboured by the Police and there is every reason to believe that he
met with his death while in police custody.
The respondent filed an application under
Sec. 340(1) of the Criminal Procedure Code before the High Court for taking
action against the appellant and others for perjury. The High Court hearing the
application cameto the conclusion that a prima facie case was made out under
section 193 of the Indian Penal Code and that it was expedient in the interest
of justice to lay complaint against the appellant before the appropriate Court.
Dismissing the appeal by Special Leave held :
1. It is well settled that this Court under
Article 136 of the Constitution would come to the aid of a party when any gross
injustice is manifestly committed by a Court whose order gives rise to the
cause for grievance-before the Court. If two views are possible, it would not
be expedient, In the interest of justice to interfere with the order of the
High Court. The order of the High Court can be quashed only if it is manifestly
perverse. or so grossly erroneous or 'so palpably unjust that this Court must
interfere in the interest of justice and fairply. [217 C-D, F]
2. The High Court has taken good care not to
express on the merits of certain aspects. The Court found that there was no
justification to interfere with the Order of the High Court. [217 G] 210
3. Under Section 476B of the old Criminal
Procedure Code there was a right of appeal against the order of the High Court
to this Court. 'Mere Is, however, a distinct departure from that position under
section 341 of the new Criminal Procedure Code. It is, therefore, a new
restriction in the way of the appellant when he approaches this Court under
Article 136 of the Constitution. [216 B-C]
4. The Court made it clear that the reasons
contained in the High Court or those mentioned by this Court should not weigh
with the Criminal Court in coming to its independent conclusion whether the
offence under section 193 of the Indian Penal Code has been fully established
against the appellant beyong reasonable doubt [216 H, 217A]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal, No. 272 of 1977.
Appeal by Special Leave from the Judgment
and, Order dated 13-6-77 of the Kerala High Court in C.M.P. No. 7406/77 in O.P.
No. 1141 of 1977.
D. Mookherjee, A. S. Nambiar, Y. Sivarainan
Nair and Miss Pushpa Nambiar for the Appellant.
Niren De, Ram Kumar, Mrs. Sumithra Banerjee,
M. K. D. Namboodiry and Dr. N. M. Ghatate for Respondent No. 1.
N. N. Abdul Khader, Adv. Gen. K. M. K. Nair
and K. R. Nambiar for Respondent No. 2.
The Judgment of the Court was delivered by
GOSWAMI, J.-This appeal by special leave is directed against the judgment and
order of the High Court of Kerala of June 13, 1977, sanctioning a complaint
against the appellant along with two others, who are not before us, for an
offence under section 193 I.P.C. after making an enquiry under section 340(1)
Code of Criminal Procedure, 1973. At the time of granting special leave this Court
ordered for impleading the State of Kerala and the State is represented before
us by its Advocate General who adopts the arguments of the appellant's counsel,
Mr. Debabrata Mookerjee, and also addressed us in support of the appeal.
This particular proceeding is an 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 210 211 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.(1) 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 and met the appellant (Shri Karunakaran) who. was" then the Home
Minister of Kerala, on March 10, 1976, after nine days of the arrest.
We are referring to this fact since it will
assume some importance as will appear hereinafter on account of omission by
Shri Warrier to mention about this interview with Shri Karunakaran in the
original writ application. Shri Warrier also met the then Chief Minister Shri
V. Achutha Menon, several times and on the last occasion when he had met him
"he expressed his helplessness in the matter and said that the same was
being dealt with by Shri Karunakaran, Minister for Home Affairs". There
was also a written representation by Shri Warrier to the Home Minister,
Government of India, on August 24, 1976, with copy to all Members of Parliament
from Kerala. There was a reminder to him on October 22, 1976. Certain Members
of Parliament also took the matter up with Shri Karunakaran in November, 1976.
It is sufficient to state that Shri Warrier did not receive any answer to his
piteous queries about the whereabouts of his son. This is bow the matter had
been dragging keeping the parents in great suspense, misery and distress which
can only be imagined.
It so happened that the Lok Sabha was
dissolved on January 18, 1977, and elections to Parliament and the Kerala State
Assembly were to take place on March 19, 1977. Emergency was also necessarily
relaxed. Finding all his efforts to trace the whereabouts of his son
unavailing, the appellant ultimately printed out a leaflet inviting attention
of the general public in Kerala about his utter distress at the time when the
people were about to go to the, polls. In the leaflet Shri Warrier had detailed
that his son was kept in illegal custody without even informing him and the
members of his family his whereabouts. It was mentioned in his original habeas
corpus application that during the election Shri Karunakaran, then, Home
Minister-, had addressed several public meetings in various constituencies of
the State and that he had stated during his speeches that Rajan was involved as
an accused in a murder case and that was why he was kept in detention. Shri
Karunakaran and his party won in the State Assembly elections and Shri
Karunakaran became the Chief Minister in March 1977.
On March 25, 1977, which was a Friday, Shri
Warrier filed in the High Court the habeas corpus application for production 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 (1)  suppl
212 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 affidavit. Along with it affidavits of 12 persons were
also filed in support of his case that Rajan had been taken into police custody
on March 1, 1976.
Shri Warrier as well as most of the deponents
of the affidavits offered themselves for cross-examination and although some of
them were cross-examined, the Additional Advocate General declined to
cross-examine Shri Warrier.
However, the Principal of the Engineering
College, who had informed Shri Warrier about Rajan's arrest, was also examined
as a witness. The learned Additional Advocate General was candid enough not to
question his veracity except to point out that he had no direct knowledge,
about the arrest of Rajan which he came to know from the warden and the
students. After, a full hearing of the matter the High Court delivered its
Judgement in the habeas corpus application on April 13, 1977, but in the nature
of things the proceedings were not closed. The High Court, faced with a unique
situation, ordered as follows :"We hereby issue a writ of Habeas Corpus to
the respondents directing them to produce Sri Rajan in this Court on the 21st
of April, 1977.
If, for any reason the respondents think that
they will not be able to produce the said Sri Rajan on that day their counsel
may Me a Memo submitting this information before the Registrar of the High
Court on 19th April, 1977, in which case the case will stand posted to
23-5-1977, the date of reopening of the Courts after the midsummer recess. On
that day the respondents may furnish to the Court detailed information as to
the steps taken by the respondents to comply with the order of this Court, and
particularly to locate Sri Rajan. Thereupon it will be open to this Court to
pass further orders on this petition and to that extent this order need, not be
taken to have closed the case".
The Advocate General filed a Memorandum as
ordered by the High Court on April 19, 1977, on behalf of respondents, 1, 2 and
213 4, the Home Secretary, Inspector General of Police and Shri Karunakaran
respectively, stating that these respondents were not able to produce Rajan
"since the said Rajan is not in the illegal detention or in the custody or
control of the respondents anywhere in the State or outside". It was also
stated that police sources in Kerala as well as outside were alerted to locate
the said Rajan. it was further mentioned in the Memo that certain police`
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 Court, this time describing himself as a Member of
the Legislative Assembly, Kerala State. In para-5 of this affidavit he stated
as follows :-"To the best of my knowledge and information now available,
Sri Rajan after he was taken into custody by the police was belabored by the
police and there is every reason to think that he met with his death while in
police custody. It is humbly submitted that in the circumstances stated above,
I am not able to comply with the writ of Habeas Corpus issued to me since
compliance with the writ has become impossible on account of Sri Rajan having
died as a result of police torture at the Kakkayam Investigation Camp on
2-3-1976, while in unlawful custody of the police as disclosed in the report
dated 17-5-1977 of the investigating Officer".
It will be of relevance now, as indicated at
the outset, to refer to the affidavit of Shri Warrier of March 30, 1977, in
support of Ms application for impleading Shri Karunakaran and it may be
appropriate to quote paragraph 2 there from :
"I met the present Chief Minister Sri K.
Karunakaran on the 10th of March, 1976 at the
Man Mohan Palace at Trivandrum (His Official residence then) and Sri
Karunakaran told me then that my son Rajan had been arrested 214 from his
college for involvement in some serious case and he will do his level best to
look into the matter and help the petitioner".
Shri Karunakaran as Chief Minister made his
first affidavit on March31, 1977, and in reply to the above quoted paragraph 2
he stated in that affidavit as follows :"The allegation made in paragraph
2 of the additional affidavit that I told the petitioner on 10th March, 1976,
that his son Rajan had been arrested from his College for involvement in some
serious cases and he will do his (sic) level best to look into the matter and
help the petitioner is absolutely incorrect. I have never told the petitioner
that his son Rajan was in police custody at any time and so far, I have no
knowledge that the said Rajan has been in Police custody at any time".
He also denied as false in this affidavit
about any reference to Rajan's arrest in his speeches during the election
campaign. In his second affidavit of May 22, 1977, referred to above, he made
reference to the, interview with Shri Warrier of 10th March, 1976, and stated
as follows in para 8 therein :
"Shri T. V. Eachara Warrier, the
petitioner 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 292-1976 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
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 tortured
while in police custody at the Kakkayam camp as a result of which he breathed
his last while in such custody at the camp on the evening of 2-3-1976 as it has
now, been revealed by the investigation of Crime No. 304/77 of Crime Branch CID
I may be permitted to say in retrospect that the 215 judgment of this hon'ble
Court dated 13-4-1977 had helped me as Chief Minister to apply my pointed
attention to this matter and take certain expeditious steps to bring to light
the true facts*.
In the above backdrop, Shri Warrier filed an
application under section 340(1) Cr.P.C. before the High Court for taking
action against Shri Karunakaran and others for perjury.
Lie tends to become almost a style of life.
Lies are resorted to by the high and the low being faced with inconvenient
situations which require a Mahatma Gandhi to own up Himalayan blunders and
unfold unpleasant truths truthfully. But when principles are( sacrificed at the
altar of individuals, selfishness, of man, desire to continue in position and
power, lining up with the high and mighty, lead to lies, euphemistically
prevarication. But all lies made, here and there, ignored by the people or
exposed on their own to nudity, are not subject matters for the Court to take
action. When the Court takes action it.
is a species of falsehood clearly defined
under section 191 IPC and punishable under section 193 IPC.
The High Court after hearing the said
application has come to the conclusion that a prima facie case has been made
out under section 193 IPC and that it is expedient in the interest of justice
to lay a complaint against Shri Karunakaran under that section before the
The High Court also passed similar orders
against the Deputy Inspector General of Police, Crime Branch and the
Superintendent of Police, respondents 3 and 5 respective in the original
application. The High Court, however, declined to take action against the Home
Secretary and the Inspector General of Police for certain reasons recorded by
It is submitted by Mr. Debabrata Mookerjee,
on behalf of the appellant, that the High Court had no legal justification to
make a distinction between; Shri Karunakaran on the one hand and the Home
Secretary and the Inspector General of Police on the other. All the three had
no direct knowledge of Rajan's arrest, says counsel. Counsel submits that Shri
Karunakaran as Chief 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
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.
216 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 chapter has undergone
one significant change with regard to the provision of appeal which was there
under the old section 476B Cr.P.C. Under section 476B Cr.P.C. (old) there was a
right of appeal from the order of a subordinate Court to the superior Court to
Which appeals ordinarily lay from an appealable decree or sentence of such
former Court Under section 476B (old) there would have ordinarily been a right
of appeal against the order of the High Court to this Court. There is,
however,a distinct departure from that position under section 341 Cr.P.C. (new)
with regard to an appeal against the order of a High Court under section 340 to
this Court. An order of the High Court made under sub-section (1) or
sub-section (2) of section 340 is specifically excluded for the purpose of
appeal to the superior court under section 341 (1) Cr.P.C. (new). This is,
therefore, a new restriction in the way of the appellant when he approaches
this Court under article 136 of the Constitution.
Whether, suo moto, or on an application by a party
under section 340(1) Cr. P.C., a Court having been already seized of a matter
may be tentatively of opinion that further action against some, party or
witness may be necessary in the interest of justice. In a proceeding under
section 340(1) Cr.P.C. the reasons recorded in the principal case, in which a
false statement has been made, have a great bearing and indeed action is taken
having regard to the overall opinion formed by the Court in the earlier
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 un-rebutted, 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 party may choose to place all its
materials before the court at that stage, but if it does not, it will not be
estopped from doing so later in the trial, in case prosecution is sanctioned by
In this case the) High Court came to the
conclusion in the enquiry that Shri Karunakarn,s first affidavit of 31st March,
1977 filed on 4th April, 1977, contained a false statement to the effect that
he had no knowledge that Rajan was in police custody at any time and that
"be could not have believed it to be true". It is only on that basis
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 com217 ing 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
An enquiry, when made, under section 340(1)
Cr.P.C. is really in the nature of affording a locus poenitentiae to a person
and if at that stage the court chooses to take action, it does not mean that he
will not have full and adequate opportunity in due course of the process of
justice to establish his innocence.
It is well-settled that this Court under
article 136 of the Constitution would come to the aid of a party when any gross
injustice is manifestly committed by a court whose order gives rise to the
cause, for grievance before this Court.
Even when two views are possible in the
matter it will not be expedient in the interest of justice to interfere with
the order of the High Court unless we are absolutely certain that the two
preconditions which are necessary for laying a complaint after an enquiry under
section 340 are completely absent. The two preconditions are that the materials
produced before the High Court make out a prima facie case for a complaint and
secondly that it is expedient in the interest of justice to permit the
'prosecution under section 193 IPC.
We should bear in mind an important aspect.
We are not dealing with a case of conviction of an accused-under section 193
IPC. The appellant is still to be tried. We are invited to quash the complaint
made by the High Court prior to its regular trial. That can be only on the
basis that the order of the High Court's prima facie view that a complaint
should be laid under section 193 IPC is so manifestly perverse, so grossly
erroneous and so palpably unjust that this Court must interfere in the interest
of justice and fair play.
There is another anxiety on our part not to
speak more than what is absolutely necessary in this appeal as any expression
or observation on any facet of the case may prejudice either party in the trial
which must be free and impartial wherein no party should have any feeling of
misgiving, suspicion or embarrassment.
We have seen in the judgment of the High
Court that it hag taken good care not to express on the merits of certain
aspects which it has expressly enumerated. We will only add that even in those
as poets where the High Court may be said to have even remotely expressed some
views, these shall not certainly weigh with the trial court. We read in the
judgment of the High Court their natural anxiety on this score and we are only
clarifying the true position so that there need be no embarrassment or
apprehension in any quarters about the trial. It is for this very reason that
although arguments were heard at length of both sides on every conceivable
aspect of 218 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 section contemplates that making of a false statement is
not enough. It has to be made intentionally. The accused in a trial under
section 193 will be able to place all circumstances bearing upon the ingredient
of the intention attributed to him.
After giving our anxious consideration to all
the submissions made by counsel of both sides we do not feel justified in
interfering with the order of the High Court to scotch the complaint against
the appellant at the threshold.
It is true, we are dealing with the former
Chief Minister of a State who happened to be the Home Minister at the time of
the incident. Even the time was singularly unique when the occurrence took
place and such cases give rise to emotions and feelings of bitterness. It is
also true that a person cannot swear a falsehood in the court as a minister
with impunity and come out with the truth only as a commoner.
When, however, the court is called upon to
ultimately try an offence we do not have any doubt that the matters germane to
the offence under section 193 IPC alone will be taken into consideration on the
materials produced by the parties and justice will be done in accordance with
Where a Chief Minister, for reasons best
known to him, relying entirely on the official channel of information denied
knowledge of an event, people were bumming about, it is a matter which must go
forward for a trial in public interest. Truth does not lie between two lights.
Whether the appellant made a false statement
before the High Court and intentionally did so will be an issue at large for
trial in the criminal court. We decline to put the lid on the controversy, out
of hand, since that way does not point to justice according to law. We close by
saying ne quid nimis.
The appeal is dismissed.
P.H.P. Appeal dismissed.