Section 340. of the Code incorporates following principles :
(i) Only cases where Courts, on objective consideration of the facts and circumstances are of honest belief and opinion that interests of justice require the laying of a complaint, should form subject of an enquiry.
(ii) Conducting preliminary enquiry or dispensing with it is not mandatory, but is discretionary.
(iii) A proceeding under the provision is an independent and different proceeding from that of the original sessions case.
(iv) The proceeding being penal in nature, in accordance with principles of natural justice the accused should be issued show cause notice to afford a reasonable opportunity to establish by adducing oral arid documentary evidence that it is not expedient in the interest of justice to prosecute him.
(v) As a condition precedent to filing a complaint; the Court should record a finding that it is expedient in the interests of justice that an enquiry should be made….
(vi) The provision to record a finding is not merely discretionary but is mandatory, for, an appeal lies against the order of the Court.
(vii) The order recording such a finding must be a speaking one supported by valid and justifiable grounds to enable the appellate Court to know the material on which the Court formed the opinion that it was expedient in the interest of justice to launch a prosecution.
(viii) The language recording the finding as contemplated under the provision must be such that it leaves no doubt that it was a fit and proper case.
(ix) It is incumbent on the Court to give a specific finding before making a complaint.
(x) The omission or failure to record a finding that it is expedient in the interests of justice to enquire into the offence is not a mere irregularity curable under Sections 464 and 465 of the Code as it goes to the root of the matter and the Court will have no jurisdiction to file a complaint without recording such a finding.
8. Before an order is made under Section 340 of the Code there must be grounds of a nature higher than mere surmise or suspicion for directing a judicial enquiry. Before the proceedings under Section 340 to be instituted there must be direct evidence fixing the offence upon the persons whom it is sought to charge either in the preliminary enquiry or in the earlier proceedings out of which the enquiry arises. It is not sufficient that the evidence in the earlier case may induce Some sort of suspicion that these persons had been guilty of an offence but there must be distinct evidence of the commission of an offence by such persons. A complaint under this section should not be made against a person where the indications of his guilt do not amount to anything more than mere suspicion.
10. As pointed out by the Supreme Court in K. Karunakaran v. T.V. Bachara Warner AIR 1978 SC 290: (1978 Cri LJ 339) in a proceeding under Section 340(1) of the Code 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 proceedings. The only question at an enquiry under Section 340(1) of the Code is whether a prima facie case is made out which, if unrebutted, 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 this stage, but if it does not, it will not be, estopped from doing so later if the trial of prosecution is sanctioned by the Court. An enquiry under Section 340(1) of the Code is in the nature of affording a locus paenitentiae to a person and if at that stage the Court chooses to take action, it does not mean that he will not have full opportunity in due course of the process of justice to establish his innocence.
Sri Chand vs State Of U.P. on 28 March, 2003
2. The first appeal from order No. 46 of 1985 preferred under Section 83 of Lunacy Act read with Section 341/195(4), Cr.P.C. challenging the order dated 19-10-1984 passed under Section 340, Cr.P.C. in Misc. Case No. 285 of 1982 (Madan Lal v. Sri Chand) was finally disposed of by the District Judge, Azamgarh on 18-3-1983 where the District Judge has observed that Sri Chand had filed a false affidavit indicating that Madan Lal happened to be his real brother. On that aspect the District Judge had indicated for issuance of show cause notice for institution of a criminal complaint against him. The miscellaneous application No: 205 of 1983 has been originated from the said observation in respect of the alleged false affidavit filed by Sri Chand before the lower Court. Undoubtedly Sri Chand has filed an affidavit in Misc. Case No. 285 of 1982 which is allegedly to be a false affidavit wherein he had averred that Madan Lal happened to be his real brother whereas in another litigation regarding partitions of property Sri Chand the appellant before this Court has made and categorically asserted that Madan Lal is not his brother, that litigation was pending from much before the instant proceeding in which the impugned order in question and the cognizance of alleged false affidavit was noted on this aspect learned lower Court took a view that Sri Chand has filed a false affidavit. Learned lower Court has also made observations in the order dated 19-10-1984 that learned counsel for Sri Chand had very humbly stated before the lower Court that he has not done so intentionally with a view to gain something. However, learned District Judge had viewed such averment of Sri Chand presented on affidavit that definitely it was a false statement in the knowledge of Sri Chand and has been viewed that Sri Chand has deliberately filed a false affidavit touching his relationship with Madan Lal. Learned lower Court has also noted that Sri Chand was not instrumental in drafting of the affidavit as it was got prepared by the then learned counsel engaged in that case and Sri Chand had only made a signature at the bottom of the plain paper and as a common litigant and he could not make an attempt to peruse or he could not realise the necessity; of perusing the entire contents of the affidavit. According to Sri Chand he had simply put a signature under the affidavit in a blind folded manner without making any endeavourance to know the contents. However, learned lower Court has ignored these aspects in the matter and has viewed that such phenomena is uncommon and has considered that it a fit case where criminal’ complaint was to be filed against Sri Chand for filing false affidavit in the miscellaneous case.
State: Represented By Its … vs Baddepudi Penchalaiah, on 11 October, 2007
In the impugned judgment, the learned Special Judge observed that PW.1 gave false evidence before the trial Court, which is different from the version given by him before the Magistrate under Section 164 of Cr.P.C. Therefore, he is liable to be prosecuted for perjury under Section 193 of the Indian Penal Code.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
In view of the admission and also in view of the affidavit and the records now filed by the respondents admitting the fact that the service record showed the date of birth of the petitioner as 12.7.1948, the respondent authorities are prima facie guilty of contempt and perjury.
Considering the peculiar facts and circumstances of the case and also in view of the fact that the petitioner has attained superannuation after completing 60 years of service and has collected retiral dues there is no point to initiate contempt proceedings and or perjury proceeding under Section 340 Cr.P.C. at this stage. However, it will be in the interest of justice to direct the respondent Management to pay a cost of Rs.20,000/- to the petitioner since he suffered at the hands of the respondents authority for making false statement on oath. It is also directed that if the retiral dues has not been released the same should be released within a period of one month from the date of receipt/production of a copy of this order. This writ petition is accordingly disposed of with the aforesaid direction.”
Balshiram Rambhau Awate vs The State Of Maharashtra on 23 March, 1977
6. However, we are sorry to find that the learned trial Judge having taken a correct view of the situation did not proceed logically to issue notices to at least three of the prosecution witnesses for having committed perjury. Two courses were open to him. He could have taken action under Section 344 Cr.PC summarily and arranged to punish them there and then. It was also open to him to hold a summary inquiry Under Section 340 (1) of the Cr.PC and decide whether a complaint should be filed. In this regard the learned trial Judge has shown some inaction. We find that the Police Patil and the Kotwal being public servants could not be allowed to run away scot-free from the Court in spite of committing perjury. In the same manner victim Damo- dar who has received several injuries at the hands of his brother cannot play fast and loose with the Court. We are thus satisfied that it is necessary to take action against these three witnesses for having committed the offence of perjury. We would therefore hold a preliminary inquiry in that behalf as contemplated by Sub-section (1) of Section 340 Cr.PC
Baiju Kumar vs D.E.O. on 10 July, 2003
9. The Manager has raised some new contentions in the counter affidavit which he has not raised either in O.P. No. 14830/99 or before the Government. They are regarding the ineligibility including financial position of the petitioner etc. Those contentions have been raised as a result of an afterthought as a desperate attempt to sustain Ext.P5. In those efforts, he has made conflicting pleas which may amount to commission of perjury warranting an order under Section 340 of the Cr.P.C. directing his trial for perjury by the competent Criminal Court. In O.P. No. 14830/99, the Manager has pleaded regarding the submission of the application by the petitioner in the following manner:-
Jose Kuruvinakunnel vs A.T. Jose on 6 December, 1996
3. The revision petitioner herein filed O. P. (Misc) 7/85 before the Munsiffs Court, Pala under Section 340 of the Criminal Procedure. Code against the respondent herein who is the 3rd defendant in O.S. 68/83 alleging that he had manipulated the official records of the Panchayat and had given false evidence before Court and as such he has committed the offence punishable under Sections 191 and 192 of the IPC.
4. After trial the Munsiffs Court dismissed the Suit. The Munsiffs Court also dismissed the O. P. (Misc.) 7/85 holding that there is no sufficient material to institute proceedings against the respondent herein under Section 340 of the Cri. P. C.
30. Therefore, it is clear that prosecution can be initiated by resorting to Section 340 of Cr. P. C. only in cases where it is expedient in the interests of justice to prosecute the party and prima facie evidence is adduced in that behalf and the provisions of Section 340 of Cr. P. C. cannot be resorted to lightly on the mere allegations, or to vindicate personal vendetta.
29. In the decision in Suntokh Singh v. Izhar Hussain AIR 1973 SC 2190 : 1973 Cri LJ 1176 the Supreme Court observed as follows (Para 11):
Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the Court should direct prosecution.
Mahila Vinod Kumar I vs State Of Madhya Pradesh on 11 July, 2008
7. This section introduces an additional alternative procedure to punish perjury by the very Court before which it is committed in place of old Section 479 A which did not have the desired effect to eradicate the evils of perjury. The salient features of this new provision are:
(1) Special powers have been conferred on two specified Courts, namely Court of Session and Magistrate of the First Class, to take cognizance of an offence of perjury committed by a witness in a proceeding before it instead of filing a complaint before a Magistrate and try and punish the offender by following the procedure of summary trials. For summary trial, see Ch. 21. 6
(2) This power is to be exercised after having the matter considered by the Court only at the time of delivery of the judgment or final order.
(3) The offender shall be given a reasonable opportunity of showing cause before he is punished.
(4) The maximum sentence that may be imposed is 3 month’s imprisonment or a fine up to Rs.500 or both. (5) The order of the Court is appealable (vide S. 351). (6) The procedure in this section is an alternative to one under Sections 340-343. The Court has been given an option to proceed to punish summarily under this section or to resort to ordinary procedure by way of complaint under Section 340 so that, as for instance, where the Court is of opinion that perjury committed is likely to raise complicated questions or deserves more severe punishment than that permitted under this section or the case is otherwise of such a nature or for some reasons considered to be such that the case should be disposed of under the ordinary procedure which 7
would be more appropriate, the Court may chose to do so [vide sub-section (3)].
(7) Further proceedings of any trial initiated under this section shall be stayed and thus, any sentence imposed shall also not be executed until the disposal of an appeal or revision against the judgment or order in the main proceedings in which the witness gave perjured evidence or fabricated false evidence [vide sub-section (4)].
8. For exercising the powers under the section the Court at the time of delivery of judgment or final order must at the first instance express an opinion to the effect that the witness before it has either intentionally given false evidence or fabricated such evidence. The second condition is that the Court must come to the conclusion that in the interests of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by the witness. And the third condition is that before commencing the summary trial for punishment the witness 8must be given reasonable opportunity of showing cause why he should not be so punished. All these conditions arc mandatory. [See Narayanswamy v. State of Muharashtra, (1971) 2 SCC 182].
Vittappan vs State on 9 April, 1987
10. A court directing prosecution for perjury is not vindicating the grievance of any party. The action is mainly to safeguard the prestige and the dignity of the court and to maintain the confidence of the people in the efficiency of the judicial process. What the court is mainly interested in is seeing that administration of justice and dignity of the court is not flouted. The Sessions Judge did not specifically find on which aspect the appellant gave false evidence and whether that evidence was purposely made or whether it had any real impact on the decision of the case. In fact he did not even consider whether any perjury was committed. This is evident when he refused to express any opinion on that aspect and said that what he is concerned under Section 340 is only to see whether an enquiry is necessary or not. The only opinion formed by him for filing the complaint is that interest of justice demands an. enquiry as to whether the appellant committed the offence of giving false evidence in court. I am of opinion that the Sessions Judge has not complied with the mandatory provisions of Section 340 of the Code and filed the complaint after passing the impugned order without the requisite satisfaction and without understanding the legal provision correctly. In fact the materials make it clear that this is not a fit case where it was expedient in the interest of justice to have an enquiry under Section 340 of the Code much less a prosecution. The impugned order and consequently the complaint must go.
Amzad Ali vs Marfat Ali Biswas And Two Ors. on 11 June, 1998
Thereafter, the defendant respondent no.l filed an application under section 340 Cr.PC before the Court of Munslf, Lalbag, praying for lodging a complaint against the plaintifi* petitioner alleging that the plaintiff petitioner fraudulently and dishonestly used as genuine the aforesaid, deed of sale dated 10.3.38, knowing or having reason to believe that it was a forged document and had thereby committed an offence punishable under section 471 I.PC This application was registered as Misc. Case No.34 of 1988 of the Court of Munsiff, Lalbag.
Mohanlal vs State Of Rajasthan And Ors. on 1 October, 1980
I am, therefore, convinced that it is time that exploitation abuse and misuse of equitable jurisdiction is stopped, as founding fathers never intended it to make it an “Allaudin’s lamp” for providing protective umbrella to all inequitable evil geniuses and social parasites. Anti-soqial dishonest and unjust litigants cannot use smoke screen of ‘natural justice’ to perpetuate unnatural injustice. Tainted hands cannot be allowed to touch pure fountains of justice.
Sardar Harjit Singh vs Sardar Ravel Singh & Ors on 1 January, 1800TRUTH was the hallmark of the justice delivery system which operated in the country till the establishment of the court system under British rule. The people used to tell truth and truth only without being influenced by its consequences. In the present day judicial system the truth is perhaps the biggest casualty. Unscrupulous litigants like the petitioners leave no stone unturned to mislead the quasi-judicial and judicial authorities and the courts for material gains. The entire system has become victim of such persons. In order to meet this challenge, the courts have evolved new rules, strategies CS (OS) No.690/2005 Page 16 of 23 and techniques. One such rule is that the court will not grant hearing to a person who does not approach it with clean hands. To put it differently, a person who touches the fountain of justice with the tainted hand or who makes an attempt to pollute the course of justice by making false or misleading statements or by suppressing facts must be shown the door at the threshold.”
Shiv Dan Singh vs State Of Rajasthan on 12 January, 1983
Mr. Khan wanted to show to me the record of Order Book of the Police Department for the year 1948, in which at Section No. 188 it is mentioned that the enlistment of the petitioner was done and his age has been mentioned as 20 years. However, it will be unnecessary to travel into any other record, because I am convinced that the very bedrock and the foundation of the allegation that the original entry was 29.11.27 is not only incorrect, but further based on some inter-polation, which is visible to a naked eye and is patent. Tainted hands cannot be allowed to touch pure fountains of Justice.
S.P Chengalvaraya Naidu vs Jagannath on 27 October, 1993
The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
+ W.P.(CRL) 286/2007
RAJKUMAR INDORIA ….. Petitioner Through Ms. Anu Mehta, Advocate.
NCT OF DELHI NEW DELHI ….. Respondent Through Nemo.
HON’BLE MR. JUSTICE SANJIV KHANNA
CRL.M.A. No. 13869/2010
1. The writ petition filed by the petitioner for police protection to him and his family members was disposed of on 9th August, 2010. It was noticed that the petitioner was initially granted police protection in the year 2005 but police protection/PSO was subsequently withdrawn after re-assessment of the threat perception in the year 2007. The order dated 9th August, 2010 notices the fact that the threat perception of the petitioner and his family was examined by Special Cell, Delhi Police, Ministry of Home Affairs and then again by DCP (Special Cell). It was also noticed that there are some FIRs, which are registered against the petitioner.
2. Now the petitioner has filed the present application under Section 340 of the Code of Criminal Procedure, 1973 stating, inter alia, that wrong and false averments have been made in the status report which amount to perjury. Learned counsel appearing for the applicant submits that FIR No. 580/2005, Police Station NDLS, Delhi was registered on the complaint of the petitioner against Mr. Ramchander Khaganwal under Section 325 and not under Section 323 of the IPC. It is further stated that the licence of Mr. Ramchander Khaganwal was cancelled in 2007 by the Northern Railway. She has relied upon In re R. Karuppan 2001 CriLJ 266.
3. These two allegations do not justify initiation of prosecution. In the order dated 9th August, 2010 several aspects and facts have been taken into consideration. The dispute between the petitioner and Mr. Ramchander Khaganwal is noticed and that there are cross FIRs. It is not expedient in the interest of justice to enquire into the alleged offence as has been observed in Pritish vs State of Maharashtra (2002) 1 SCC 253. The relevant paragraph reads:
“16. Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff v. State of Madras1 a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.”
4. Further, the expediency should be judged by taking into
consideration the impact that commission of such offence has on the
administration of justice. The Supreme Court has held in Iqbal Sigh
Marwah v. Meenakkshi Marwah (2005) 4 SCC 370:
“23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. .”
5. The aforesaid submissions do not justify further proceedings under Section 340 of the Code of Criminal Procedure, 1973. The application is dismissed.
SANJIV KHANNA, J.
AUGUST 18, 2010
Criminal Misc. Application No.30509 of 2009
Garima Srivastava Vs. State of U.P. and another
Hon. A.K. Roopanwal, J.
In this petition orders dated 15.7.09 and 7.10.09 passed by the Principal Judge, Family Court, Allahabad have been challenged.
It appears from the record that in a divorce case an application was moved by the husband that the lady had wrongly filed an affidavit that she is not serving in Delhi Public School, Arail, Naini, District Allahabad and therefore, action be taken against her. The lady was ready for inquiry in the matter and the court vide order dated 21.11.06 ordered that the inquiry be made in the matter and the defaulter be punished with a fine of Rs.10,000/-. Subsequent thereto the report from the college was obtained and it was reported by the college that the version of the lady was wrong. In such situation, the court vide order dated 15.7.09 imposed a fine of Rs.10,000/- upon the lady (applicant). By the order dated 7.10.09 the objections filed by the applicant against the maintainability of the proceedings under Section 340, Cr.P.C. instituted by the husband were rejected. Heard Mr. A.N. Tripathi, learned counsel for the applicant, learned AGA and perused the record.
It has been argued by Mr. Tripathi that under the provisions of Section 340, Cr.P.C. the court can make only preliminary inquiry and the final order which may be in the form of imposing fine can be passed by the court of competent jurisdiction and the court of competent jurisdiction would be that court in which the complaint would be filed by the court in which the perjury was committed. The court which made the preliminary inquiry had no jurisdiction to finally conclude the matter and impose the fine, therefore, the order dated 15.7.09 is bad and is liable to be quashed. Regarding the order dated 7.10.09 it was argued by Mr. Tripathi that once a wrong order was passed by the court on 15.7.09 it should have been reviewed and when it was not reviewed, hence, the order dated 7.10.09 is also bad and is liable to be quashed.
So far as the order dated 15.7.09 is concerned, in that regard I am of the view that the matter is liable to be taken further for hearing as there is some substance in the argument advanced by Mr. Tripathi. So far as the argument regarding the order dated 7.10.09 is concerned, in that regard it has been argued by Mr. Tripathi that the court cannot initiate dual proceedings. Once the matter was concluded vide order dated 15.7.09 there could be no propriety at all to continue the proceedings under Section 340, Cr.P.C. Issue notice to O.P. No.2 to file counter affidavit within 2 weeks’. Rejoinder affidavit, if any, may be filed within 1 week thereafter.
Till then, operation of the orders dated 15.7.09 and 7.10.09 passed by the Principal Judge Family Court, Allahabad in misc. case no.2 of 2008, Rajesh Kumar Srivastava Vs. Garima Srivastava, under Section 340, Cr.P.C. shall remain stayed. Dated:19.1.2010/T. Sinha.
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
Review Application Nos.108, 109 and 110 of 2010
S.Deepak ..Petitioner in all Review Applications
D.Anitha ..Respondent in all Review Applications
Prayer in Review Application No.108 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.422 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.109 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to setaside the order passed in the Tr.C.M.P.No.423 of 2009 dated 20.04.2010 on the file of this Court. Prayer in Review Application No.110 of 2010: Application filed under Order 47 Rule 1 and 2 R/W 114 of Civil Procedure Code praying to review the order passed in the Tr.C.M.P.No.424 of 2009 dated 20.04.2010 on the file of this Court. For Applicants : Mr.S.Deepak (Party-in-person)
For Respondent : Mr.M.Palanivel
The Review petition, in Review Petition No.108 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.422 of 2009. The said petition, in Tr.C.M.P.No.422 of 2009, had been filed seeking to withdraw M.C.No.35 of 2007, filed for maintenance, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai..
2. The Review petition, in Review Petition No.109 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.423 of 2009. The said petition, in Tr.C.M.P.No.423 of 2009 had been filed seeking to withdraw G.O.P.No.1 of 2008, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.
3. The Review petition, in Review Petition No.110 of 2010, has been filed against the order, dated 20.4.2010, made by this Court, in Tr.C.M.P.No.424 of 2009. The said Tr.C.M.P.No.424 of 2009 had been filed seeking to withdraw F.C.O.P.No.131 of 2007, on the file of the Family Court, Salem, and to transfer the same to the Family Court at Chennai.
4. This Court, by a common order, dated 20.4.2010, had allowed the transfer civil miscellaneous petitions. Paragraph 13 of the said order reads as follows:
“13. It is not in dispute that both the petitioner and the respondent are, at present, living at Chennai. In view of the difficulties expressed by the petitioner, in her affidavits filed in support of her petitions, in attending the hearings before the family Court, at Salem, in the matters pending before it and as it has been stated that the petitioner has no independent income and that she is living with her aged father, at Chennai, along with her minor female child, this Court finds it appropriate to allow the above Transfer Civil Miscellaneous Petitions, by withdrawing M.C.No.35 of 2007, G.O.P.No.1 of 2008 and F.C.O.P.No.131 of 2007, pending on the file of the Family Court, Salem and transferring the same to the Principal Family Court, at Chennai. After transferring and renumbering, the Principal Family Court, Chennai, is directed to hear and dispose of the cases, on merits and in accordance with law, within six months thereafter. The Transfer Miscellaneous Petitions are allowed accordingly. No costs. Consequently, connected M.P.Nos.1,1 and 1 of 2009 are closed.
5. The main grievance of the review petitioner in the above review petitions is that the respondent, D.Anitha, had committed perjury, with mala fide intentions. He had also submitted that the respondent had suppressed material documents and thereby, had committed fraud on the Court. Further, she had come before this Court, with unclean hands. She had also mislead this Court by suppressing and misrepresenting the facts. As such, the order passed by this Court, on 20.4.2010, is null and void. The petitioner, who had appeared as party-in-person, before this Court, had also submitted that the claim of the respondent that she has no independent source of income is false and misleading.
6. Further, the allegation made by the respondent, in the transfer civil miscellaneous petitions, stating that the petitioner herein is impotent, is totally false. Similarly, the petitioner in the transfer civil miscellaneous petitions had also made various other baseless allegations against the present petitioner. As such, the respondent is liable for perjury. The petitioner had also submitted that the respondent would be legally liable for making such defamatory statements. He had also relied on the decision of the Supreme Court, made in Hamza Haji Vs. State of Kerala and another (AIR 2006 SC 3028) in support of the settled proposition of law that a judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eye of law and that it can be challenged in any Court, even in collateral proceedings, in any Court.
7. In the counter affidavit filed by the respondent, the averments and allegations made by the petitioner had been denied. It had been stated that the petitioner had filed the present review petitions only with the mala fide intention of prolonging the proceedings before the Family Court at Chennai. The learned counsel appearing on behalf of the respondent had also submitted that the review petitions are devoid of merits and therefore, they are liable to be dismissed, with exemplary costs.
8. In view of the grounds raised by the petitioner in the review petitions and in view of the averments made in the counter affidavits filed on behalf of the respondent, and in view of the submissions made by the petitioner, as well as the learned counsel for the respondent, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for allowing the review petitions. No grounds have been made out to set aside the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos. 422, 423 and 424 of 2009.
9. The main reason for allowing the transfer civil miscellaneous petitions have been clearly stated in the order passed by this Court, on 20.4.2010. It is also noted that this Court had directed the Principal Family Court, Chennai, to hear and dispose of the cases, on merits and in accordance with law, within six months after the transferring and renumbering of the cases. It is also noted that the matters have been listed before the Family Court, Chennai, on 28.8.2010, for further hearing. In such circumstances, this Court does not find sufficient grounds to review the order passed by this Court, on 20.4.2010, in Tr.C.M.P.Nos.422, 423 and 424 of 2009. Therefore, the review petitions stand dismissed. No costs. However, it is made clear that it would be open to the petitioner in the review petitions to meet all the allegations made by the respondent herein, before the Principal Family Court, Chennai, in the matters pending before the said Court, in the manner known to law. It is also made clear that the Principal Family Court, Chennai, is expected to comply with the directions issued by this Court, in its order, dated 20.4.2010, made in Tr.C.M.P.Nos.422, 423 and 424 of 2009. csh
1) The Family Court, Salem.
2) The Family Court at Chennai.
3) The Principal Judge, Family Court,
Date of Reserve: August 13, 2010
Date of Order: August 30th 2010
+ Crl.MC No. 471/2009
% 30.08.2010 J.L. Goel & Ors. …Petitioners Versus
Rajesh Kumar Jain & Anr. …Respondents Counsels:
Mr. M.A. Khan and Mr. Mir Akhtar Hussain for petitioner.
Mr. O.P. Saxena, Additional Public Prosecutor for respondent/State. JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes. JUDGMENT
1. This petition under Section 482 Cr.P.C has been preferred by the petitioners for quashing a criminal complaint no.115/2007 under Section 109/120B/466/468 IPC and for setting aside the summoning order dated 30th November 2007passed by learned MM, Karkardooma Courts, Delhi.
2. Brief facts relevant for the purpose of deciding this petition are that petitioner no.6 Mrs. Anuradha Jain was married to respondent no.1 who is the complainant in complaint number 115 of 2007. A complaint lodged by her with CAW Cell against respondent no.1 and other family members of respondent no.1 culminated into an FIR No.244 of 1995 under Section 498A/406 read with Section 34 IPC and trial is going on in that case. The Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 1 Of 8 respondent no.1 filed the impugned complaint against the petitioners alleging that during trial of FIR No.244 of 1995, the wife, in collusion with other petitioners and in collusion with the record keeper removed the original complaint and got it substituted with an improved complaint, later she again got removed the improved complaint and substituted it with the original complaint. During this interval, the complainant had obtained a certified copy of the improved complaint. An application was made by respondent no.1 to the trial court under Section 340 read with Section 195 Cr.P.C for filing a complaint against the petitioners. The trial court, however, refused to lodge a complaint under Section 340 Cr.P.C, by a speaking order. The complainant (respondent no.1 herein) then filed a complaint under Section 156(3) Cr.P.C before the Metropolitan Magistrate and the learned MM recorded statement of respondent no.1 as CW-1 and after recording the statement of respondent no.1, summoned the petitioners under Section 466,468, 109, 120B IPC.
3. The record shows that respondent no.1 (husband) during trial before the trial court of FIR No.244 of 1995; tampered with the record of court and removed certain original documents and thrown them into the dustbin. An FIR in this respect was registered at the instance of the trial Court against respondent no.1 (husband) under Sections 380,204,411 and the trial of that case is going on against the respondent no.1.
4. It is submitted by counsel for petitioner that learned MM before whom respondent no.1 filed the complaint alleging replacement/ removal of original complaint by an improved one and then again putting back the original complaint in the judicial record could not have taken the cognizance of the offence in view of bar under Section 195 (1)(b)(ii) of Cr.P.C since the offence was committed during trial of case FIR No.244 of 1995 within the cognizance of the Court concerned hence it was the trial court who could alone have filed a complaint under Section 340 Cr.P.C. The other submission made by Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 2 Of 8 the counsel for the petitioners are that the complaint filed by respondent no.1 does not disclose any cause of action against the petitioners other than respondent no.1 i.e. Mrs. Anuradha Jain.
5. I find force in both the contentions raised by the counsel for the petitioners. A perusal of statement of CW-1 (respondent no.1 herein) would show that he had alleged that Mrs. Anuradha Jain in collusion with court staff prepared a forged and fabricated document during the court proceedings and manipulated replacement of this document into the court file by removing the original complaint and thereafter getting this forged complaint again replaced with the original complaint. He stated that he obtained certified copy of the replaced complaint. He further submits that Mrs. Anuradha Jain not only got prepared an improved complaint but also obtained stamp of CAW Cell on it. It is his case that the trial court passed an order dated 24th March, 2009 in respect of missing judicial record.
6. The allegations made by respondent against the petitioners (except petitioner no.6) are that they advised Mrs. Anuradha Jain to commit this forgery with the aid of court staff. On the basis of this statement, learned MM summoned all the petitioners observing that the Supreme Court in (2003) 4 SCC 139 laid down that there was no necessity of giving reasons at the time of summoning.
7. I consider that learned MM grossly exceeded his powers and jurisdiction. It has been observed by this Court time and again that initiation of criminal proceedings should not be done in a casual manner by any court and the courts must not act as a tool in the hands of unscrupulous elements. There is no doubt that reasons are not required to be given by the Courts of MM at the time of issuing summoning order, however, the learned MM was supposed to ensure that there was sufficient material disclosed by the Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 3 Of 8 complainant in the complaint and during evidence, warranting summoning of the accused. A complainant may name 20 persons as accused. A Court of MM cannot blindly summon all the 20 persons without going into the fact whether those 20 persons had been ascribed a role in commission of the offence or not. The learned MM in this case seems to have summoned the petitioners only because their names were mentioned by the complainant in the array of parties, despite the fact that the complainant had not spelt out what was the role played by them in forging the documents or in replacement of documents. I, therefore, find that the order of learned MM summoning the petitioners no.1 to 5 was a mechanical order and the learned MM acted as a tool in the hands of respondent no.1. The Supreme Court judgment relied upon by learned Magistrate did not give him jurisdiction or authority to summon everybody named in the complaint whether he had a role in the crime or not. The relevant part of judgment Dy. Chief Controller of Imports & Exports v Roshanlal Agarwal and ors (2003) 4 SCC 139, relied upon by the learned MM, reads as under: “9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding, and not, whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v M/s Mohan Meakins Ltd. and Ors. 2000 Crl.L. J. 1799 and after noticing the law laid down in Kanti Bhadra Shah v State of West Bengal 2000 Crl.L. J 1746, it was held as follows: “The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement
imposed on a Magistrate for passing detailed order while
Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 4 Of 8 issuing summons. The process issued to accused cannot
be quashed merely on the ground that the Magistrate had
not passed a speaking order.”
8. It is obvious from this judgment that the learned Magistrate had to satisfy himself that there were sufficient grounds for proceeding against the accused. Allegations were there against the petitioner no.6 indulging in forgery as she was a complainant but there was no material placed before the learned Magistrate as to how the petitioners no.1 to 5 were involved in forgery. The summoning order qua them was thus absolutely bad in law and amounted to gross misuse of judicial powers by learned Magistrate.
9. It is an undisputed fact that the allegations against the petitioner no.6 Mrs. Anuradha Jain are in respect of committing forgery in the court record. Section 195 (1) (b) (ii) Cr.P.C reads as under:
“195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No court shall take cognizance-
(ii) Of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any court, or “
10. A bar on taking cognizance of offences regarding administration of justice and offences relating to proceedings in any court or offences described in Section 463 or 471, 475 or 476 (when such offences are alleged to have been committed in respect of Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 5 Of 8 documents produced or given for evidence in a proceeding by a Court) has been imposed by Section 195 Cr.P.C and cognizance can be taken only on a complaint made by the concerned court.
11. The alleged offence in this case was directly related to the court record. The allegations made by the petitioners are that efforts were made to tamper the court record and the original complaint (FIR) was replaced by an improved FIR and later on improved FIR was again re-substituted by original complaint. Under these circumstances, I consider that the learned Magistrate could not have been taken cognizance of the offence unless a complaint under Section 340 Cr.P.C had been made by the court in writing on this behalf.
12. Counsel for the respondent drew my attention to Sachitanand v State of Bihar (1998) 1 RCR (Crl.) 823 wherein the Supreme Court observed that the bar contained in Section 195(1)(b) (ii) was not applicable to a case where forgery of document was committed before the document was produced in the court. He also relied upon Jitendra Chandrakant Mehta v M/s Shamrock Impex. Pvt. Ltd. and other C.W. P. No.2198 of 2005 decided on 3rd May, 2006, wherein Bombay High Court observed that bar of Section 195 was not applicable to a case when documents already forged was produced by accused in support of his case.
13. It is not a case where the petitioner no.6 had produced the forged documents in evidence or had filed before the Court some forged documents. In fact, it is a case where allegations made by the respondent no.1 against the petitioner no.6 are that the petitioner no.6 in connivance with the court staff had replaced/ substituted a complaint /FIR with an improved one and again substituted the improved complaint/FIR with the original one and in the meantime he got certified copy of it. In fact, respondent no.1 Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 6 Of 8 himself also had been fiddling with the court record. It would be appropriate to reproduce an order dated 26th November 2009 passed by leaned ACMM which reads as under: “(8) Perusal of record shows that accused is facing trial in a case FIR bearing number 244 of 1995, P.S. Preet Vihar, under Sections 498A/406 IPC. On 28.01.01 Ahlmad Mr. Vijay Kumar Marwa made a written complaint to his presiding officer Ms. Shailener Kaur the then Ld. MM (Mahila Court) Karkardooma Court, Delhi wherein he reported that on the said day accused Rajesh Kumar Jain i.e. the present applicant came for inspection of the case file and while inspecting the judicial file had torn a few pages of the judicial file and thereafter thrown the papers outside the court room. The Ahlmad with the help of Naib Court Vinod was able to retrieve a few papers but the remaining papers could not be retrieved. The matter was reported to the Ld. District and Sessions Judge, Delhi who ordered fact finding inquiry on this issue and Shri Dilbagh Singh, the then ACMM was directed to conduct the inquiry. A detailed inquiry was conducted. The inquiry report was submitted to the Ld. District & Sessions Judge, Delhi. Ms. Shailender Kaur, the then Ld. MM was directed to order for registration of FIR against accused/ applicant Shri R.K. Jain. Accordingly a complaint was made to the Station House Officer, P.S. Anand Vihar and a case FIR bearing number 382 of 2001 under Sections 379 IPC Police Station Anand Vihar was
registered against the accused. The investigation was conducted as per law and the accused was found involved in the commission of offence in the said case, accordingly charge sheet was filed against him and the same is pending trial.”
14. The Court where the trial is going on has already lodged an FIR about missing/ replacement of documents. If there was any effort to fiddle with the court record, it was within the jurisdiction of that court to order an inquiry and proceed against the person responsible for it. The court of another MM who has not been sent a complaint by the trial court cannot be in a position to hold an inquiry into the offence committed in Crl.MC No.471/2009 J.L. Goel & Ors. v Rajesh Kumar Jain & Anr. Page 7 Of 8 administration of justice without proper complaint from the court where this has taken place. I, therefore, consider that the learned MM could not have taken cognizance of the complaint filed by respondent no.1.
15. In the result, the petition is allowed and the criminal complaint no.115/2007 under Section 109/120B/466/468 IPC; the summoning order dated 30th November 2007 summoning the petitioners for offences under Sections 109/466/468/120B IPC; the order dated 19th November 2008 issuing NBWs against the petitioner no.3; the order dated 3rd January 2009 issuing process under Section 82 Cr.PC against the petitioner no.3; and proceedings consequent to the criminal complaint no.115 of 2007 pending in the court of Shri Lalit Kumar, MM, Karkardooma Courts, Delhi are hereby quashed.
16. The petition stands allowed.
August 30, 2010 SHIV NARAYAN DHINGRA, J rd
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