Applicability of section 340 of CrPC, and 194 of IPC etc
A case of perjury where even though some witnesses had given contradictory statements in civil and criminal cases between same parties, a perjury case under CrPC 340 was not allowed by high court, due mainly to technicalities about applicability of CrPC 340 to facts of the case.
CRM No.23818-M of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CRM No.23818-M of 2009
Date of Decision: 4.09.2009
Smt.Sanjay Lata & Anr. …Petitioners Vs.
The State of Haryana & Anr. ..Respondents Coram: Hon’ble Mr. Justice Vinod
Present: Mr.V.P.Singh, Advocate,
for the petitioner.
Mr.Rajeev Kawatra, Sr.DAG, Haryana.
for respondent No.1. Mr.H.N.Mehtani & Mr.V.P.Kashyap, Advocates,
for respondent No.2.
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in Digest?
CRM No.23818-M of 2009 2 Vinod K.Sharma,J. (Oral)
This petition under section 482 Cr.PC has been moved for quashing of complaint dated 14.10.2006 filed under section 194 IPC by Shri R.S.Virk, Additional Sessions Judge-I, Bhiwani, pending in the court of learned Chief Judicial Magistrate Bhiwani. Smt.Sanjay lata filed a complaint under sections 302/498- A/406 and 120-B IPC against Amrit Gautam and others on the pleadings that ever since her marriage on 27.4.1996 she was not given due recognition and instead of her having studied up to M.A,. B.Ed. level and her parents having spent 3 lacs on her marriage accused/husband and his relatives were not satisfied with the dowry brought by her and she was taunted time and again with the demand of fridge, scooter and Rs.5000/- (Rupees fifteen hundred only),
besides gold neckless, Saris etc to which she expressed her inability. It was also pleaded that she was assaulted and even starved, wrongly confined in the room during summer and was even bolted inside a bath room in December, 1996. She was even denied use of quilt with a view to ensure her death by exposure to the cold. It was further case set up that she had given birth to a male child on 5.9.1997. In spite of the fact that he was only 2.6 kilograms in weight and she was also very weak, the accused forcibly got her discharge from the said hospital on 7.9.1997 and did not allow her parents and relatives to see the new born child in the hospital or at her matrimonial home. It was pleaded that accused No.5 uncle of the accused brought some liquid in a spoon which he had administered to the new born by picking up CRM No.23818-M of 2009 3 in his own arms and thereafter the child remained motionless and shortly it was discovered that he had expired. Other allegations were also levelled claiming
prosecution of the accused for the offences referred to above. The accused was tried. Learned Additional Sessions Judge-I, Bhiwani found the complaint to be false and consequently acquitted the accused The operative part of the order reads as under:- “19. In view of the above appraisal of prosecution evidence, I hold that the complaint in hand was falsely instituted by the complainant out of malice and ill-will towards the accused husband and his co-accused, all of whom are hereby acquitted of the offences they stand charged with. As discussed above, the complainant Sanjay lata and her father Sham Sunder stand proved to have deposed falsely specially qua their testimony in the instant complaint case regarding ill treatment of the complainant wife in connection with demand of dowry by the accused husband Amrit, although while appearing as RW 1 and RW
4 respectively during the hearing of HMA petition No.19 of 11.3.1999 titled Amrit Lal Gautam Vs. Sanjay Lata decided on 7.9.2001 in favour of accused husband, they had admitted that the accused/husband had never ill treated the complainant wife nor ever demanded any dowry. Such two contradictory versions in two courts of law by these two witnesses indicate that these two witnesses have scant concern for the law of the land. Such conduct cannot be viewed lightly, specially when CRM No.23818-M of 2009 4 through the false complaint
in hand these two witnesses have sought conviction of the accused for a capital offence. Accordingly in the light of the provisions contained in Section 185 (1)(b)(i) Cr.PC read with section 340 Cr.PC, I am of the considered view that the complainant Sanjay Lata and her father Sham Sunder should be tried, not summarily under Section 344 Cr.PC, but in the light of provisions contained in Section 344 (3) Cr.P.C., they should be sent up to the court of competent jurisdiction to stand regular trial qua commission by them of an offence punishable under section 194 IPC. File be consigned to the record room,after due compliance.” Copy of the order was sent to the court of CJM, Bhiwani to prosecute the petitioner under section 194 IPC. The parties have settled their dispute.
The petitioner sought quashing of complaint primarily on the ground that mere fact that a witness made contradictory statement on 2 different stages in judicial proceedings is not by itself always sufficient to justify
the prosecution for perjury. In support of this contention reliance is placed on the judgment of Hon’ble Rajasthan High Court in the case of Sanjiv Arora Vs. State of Rajasthan 2008 (2) C.C.J. 310. The contention of the learned counsel for the petitioner, therefore, is that even if the allegations are taken on its face value no offence under section 194 IPC is made out.
Learned counsel for the petitioner also contends that initiating CRM No.23818-M of 2009 5 criminal proceedings is illegal and has been passed in violation of the provisions contained under section 340 Cr.PC. Section 340 Cr.P.C. Reads as under:-
Section 340 of the Code of criminal Procedure reads as under:- “340. Procedure in cases mentioned in Section 195:- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion
that it is expedient in the interest of Justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that
Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,–
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate, and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in CRM No.23818-M of 2009 6 respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of Section 195.
(3) A complaint made under this section shall be signed- (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this section, “Court” has the same meaning as in Section 195.
Learned counsel for the petitioner placed reliance on the judgment of this court in Crl. Misc. No.3220-M of 1986 titled as H.S.Grover, Accounts Officer Vs. Rajinder Singh decided on 4.8.1986 wherein this Hon’ble Court has been pleased to lay down as under:- ” The object of this section is to record a finding to that effect and then make a complaint thereof in writing to a Court of law. Thus, the motivating factor is that such enquiry should be conducted if it is expedient in the interest of justice. The second one is that an offence of the kind mentioned therein must appear to have been committed, for which the Court a one under section 195(1)(b), Code of Criminal Procedure, chooses to become a complaint.
CRM No.23818-M of 2009 7 In the instant cases, as the facts are patent, neither of the two considerations surface. In the first place, neither of the two suits were decided by the trial Judge and the Court had no occasion to determine the falsity or otherwise of the documents produced by the petitioners. To repeat here, it is observed that one suit was dismissed as withdrawn and the other one went to the Tribunal to be dismissed. Secondly, the Court received the documents allegedly false and forged from the petitioners as part of the Court files and nowhere were offences committed in relation to those documents while the mater was pending in the court. In other words, offences were not committed when the documents stood filed in the Courts. They had introduced on the file as pleadings or proof in the pro-fabricated formed; in other words, already falsified and forged. A Full Bench of this curt in Crl.Misc. No.5095 M of 1985 (Harbans Singh Vs. State of Punjab) decided on 7.5.1986 held that in such a situation section 195(1)(b)(ii) of the Code of Criminal Procedure would not be attracted and the Court is not obliged under the section 195(1)(b)(ii) to be the complainant. Similarly, there was no occasion to hold the documents and pleadings to be false. Thus, plainly, on both aspects of the case, the proceedings against the petitioners on applications under section 340 of the Code of Criminal Procedure are nothing but abuse of the process of the Court and deserve to be struck off from the file of he learned CRM No.23818-M of 2009 8 Judge. It is held accordingly.
For the aforesaid reasons, these petitions, are accepted and the proceedings against the petitioners are quashed. Ordered accordingly.”
to contend that the continuation of proceedings, therefore, would be nothing but misuse of the process of court as proceedings are in violation of statutory provision as the learned court has not recorded a finding that it
is expedient in the interest of justice that enquiry be made into offence.
The contention raised deserves to be accepted in view of law laid down by this court in CRM No.3220-M of 1986 (H.S.Grover Vs. Rajinder Singh (supra).
This petition is allowed and the complaint and subsequent proceedings pending in the court of learned Chief Judicial Magistrate Bhiwani, pursuant to the complaint made by learned Additional Sessions Judge-I, Bhiwani are ordered to be quashed.
4.09.2009 Judge rp