Kerala High Court Says Chief Judicial Magistrate May Have Forged Evidence In Trial, Orders Lakshadweep Administrator To Suspend Him Pending Enquiry

The Kerala High Court on Friday said that former Chief Judicial Magistrate at Amini island in Lakshadweep seems to have forged evidence in a criminal trial and is liable to be proceeded against under law.

Justice P.V. Kunhikrishnan directed Lakshadweep Administrator to place K. Cheriyakoya, who is currently working as Secretary of the District Legal Services Authority, under suspension forthwith and conduct a detailed enquiry into his actions.

"Even if a person is occupying the post of Magistrate or Judge, the law of the land is applicable to all. If there is any dereliction of duty, the constitutional courts should step in to strengthen the trust of the people in the judiciary. The Magistrate, Judges and other presiding officers are not above the law and if they commit any dereliction of duty, they have to face the consequences. This should be a lesson to all," said the court

The court said it is of "prima facie opinion" that the judicial officer forged the evidence of the investigating officer during the trial. It also said that prima facie, the officer committed serious misconduct and dereliction of duty.

"The disciplinary authority of the additional 3rd respondent is the Administrator, Union Territory of Lakshadweep. In the peculiar facts and circumstances of this case, I am of the opinion that the disciplinary authority should place the additional 3rd respondent under suspension pending enquiry. It is true that whether a person is to be placed under suspension pending enquiry is to be decided by the Disciplinary Authority. But in extra ordinary situations, extra ordinary orders are necessary to protect the interest of justice. I am of the opinion that this is a fit case in which this Court has to direct the Administrator Union Territory of Lakshadweep, to place the 3rd respondent under suspension pending enquiry".

The court further issued notice under Section 340 CrPC to Cheriyakoya, Bench Clerk P.P. Muthukoya and Bench Assistant A.C. Puthunni for conducting a preliminary enquiry in to the offences referred in Clause (b) of sub-section (1) of Sec. 195 Cr.P.C.

"The Registry will give a separate number to the Sec.340 Cr.P.C. proceedings in accordance with law and post the case on 23.1.2023 for the appearance of the additional 3rd respondent and other persons mentioned above," ordered the court.

Facts

A case was registered at Agatti Police Station in 2015 after a "mob of around 40 persons" allegedly formed an unlawful assembly with an intention of rioting and obstructed the Amin, Surveyor, contractor and the coconut climbers. The case was registered under Sections 143, 147, 188, 186 and 353 r/w Section 149 IPC against the accused persons. The Magistrate took cognizance of the offence, and the accused were enlarged on bail. The trial in the case also commenced, and the prosecution witnesses 1 to 5 were examined on March 7, 2019.

On October 19, 2022, even though the witnesses were not present, the Magistrate issued warrant to the petitioners. They thus appeared on November 3, 2022, to recall the warrant. On that day, the Magistrate is stated to have said warrant was already recalled and they could go home. 

According to the petitioners-accused, when the counsel submitted to the Magistrate to issue summons to PW7 who is the Investigating officer for cross examining him, the judge informed that he had already been examined on March 24, 2021 at Kadamath Island Camp Sitting. The petitioners however submitted that on perusal of the 'A Diary', no such proceedings regarding the examination of PW7 was noted on the said date, nor was there any signature of the witness in the deposition. The petitioners therefore specifically contended that the Magistrate had forged the evidence in order to convict the petitioners. 

According to the petitioners, the magistrate has personal enmity towards them in this case because some of the accused are the plaintiffs in a civil suit, and they had filed a complaint against the alleged prejudiced view of the judicial officer before the Registrar (Subordinate Judiciary) of the High Court of Kerala, which is pending enquiry. 

During the trial, the petitioners had subsequently, submitted a written statement before the magistrate narrating the grievance, followed by an application under Section 311 Cr.P.C. to re-examine PW7. They also had filed another application for examination of 7 defence witnesses. The applications were not considered, the high court was told.

The Magistrate instead convicted the accused and imposed a sentence of imprisonment for a period of 4 ½ years under different Sections of IPC, and directed the accused persons to undergo the sentence separately, without considering these applications, on November 15, 2022. 

High Court Case

The petitioners then filed a petition before the high court accusing the judicial officer of committing forgery. The investigating officer appeared before the high court and categorically said that he had not given any evidence before the magistrate in the trial.

The magistrate, after he was impleaded as a party to the case, told the high court that he discovered that the signature of the witness was not obtained by the court staff after the examination got over on 24.3.2021.

Rejecting the magistrate's explanation, the court said:

"First of all, if PW7's evidence was recorded, in normal parlance, it is to be presumed that, the signature of the witness is recorded then and there. But, the learned Magistrate blamed the court staff for not getting the signature of the witness in the deposition. If PW7 was examined on that day, it is the bounden duty of the 3rd respondent-Chief Judicial Magistrate to read over the evidence recorded to PW7 and to get his signature then and there. Moreover, a certificate as contemplated in Rule 57 of the Criminal Rules of Practice is seen with the signature of the magistrate in Ext P2. Even after putting the signature in Ext P2, the 3rd respondent did not check for the signature of witness. This is surprising and cannot be accepted." 

It further said even if the explanation is accepted, there is serious dereliction of duty on the part of the judicial officer.

"It is true that the version of a Magistrate is to be accepted in normal parlance. But in this case there is allegation from the petitioners/accused to the effect that there is personal enmity from the learned Magistrate towards the accused and hence, without examining PW7, the learned Magistrate created Ext.P2 evidence. PW7 who filed affidavit before this Court in which it is categorically stated that, he has not given any evidence before the Chief Judicial Magistrate Court, Amini on 24.3.2021. If that is the case, this Court has to presume prima facie that the additional 3 rd respondent created or forged the evidence of PW7".

The court said it is fundamental in criminal law that if the evidence of a witness is taken in open court and is completed it shall be read over to the witness in the presence of the accused, if in attendance or of his pleader, if he appears by pleader and shall, if necessary, be corrected. 

"Once the evidence is recorded as per Section 275 of the Criminal Procedure Code or under Section 276 of the Criminal Procedure Code, it is the duty of the Magistrate/Judge concerned to read over the evidence recorded to the witness in the presence of the accused, if in attendance, or of his pleader, if he appears through a pleader, and shall, if necessary, be corrected. If the witness denies the correctness of any part of the evidence read over to him, the Magistrate or Presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks is necessary. This is a salutary provision in the Criminal Procedure Code."

The court however observed that several Magistrate Courts and the Sessions Courts are not following the above procedure because of the lack of time.

"It is true that the Magistrates and Judges are overburden with trial and if the chief examination and cross examination is to be read over in open Court in each and every case, it will necessarily be a time-consuming process. But when the Code prescribes certain procedures to be done in certain manner, it is the duty of the Magistrate and the Judges to follow the same," it added.

The court further said If due to any circumstance the presiding officer is not able to read over the evidence recorded, the Magistrate or the Judge concerned should record the reason for not following the same.

"In such cases, after recording the reason, the magistrate or the judge can allow the witness to read the evidence in the presence of a court staff from inside the court hall and that too in a place in the court hall under the direct supervision of the presiding officer. This procedure shall be avoided as far as possible except in unavoidable situations," said the court. 

The court further said that the judges thereafter "shall affix his signature with date thereto over his name to the effect that "taken down by me/before me in open court, interpreted/read over to the witness and admitted by him to be correct".

"Therefore, the procedure prescribed in Sections 275, 276 and 278 of the Code of Criminal Procedure and the Rule 57 of the Criminal Laws of Practice in Kerala are a mandatory procedures to be adopted by the Magistrates/Judges. If at any stage, the Magistrates/Judges are not able to read over the evidence of each witness taken under Section 275 or 276 Cr.P.C, the Judge/Magistrate shall record the reason for the same. In such situation, the Magistrate/Judge shall depute an officer of the court and in his presence, the witness should read the entire evidence and thereafter put his signature. The deposition shall not be allowed to take out from the court hall and it should be read by the witness under the strict supervision of the Judge/Magistrate and if anything happens to the evidence recorded, the Presiding Officer is directly responsible."

Advocate Dheerendrakrishnan K.K. was appointed as Amicus Curiae to assist the court during the preliminary enquiry under Section 340 Cr.P.C. Registry.

The petitioners in the instant case were represented by Advocates Lal K. Joseph, Koya Arafa Mirage, Suresh Sreekumar, Anzil Salim, and Akash George. The Standing Counsel for Kerala High Court and Advocate Sajith Kumar V. appeared on behalf of the respondents. 

Case Title: Mohammed Nazer M.P. & Ors. v. Union Territory of Lakshadweep & Ors. 

Citation: 2022 LiveLaw (Ker) 664

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