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Madras High Court:- An order passed by JMFC under Section 340 of Cr.P.C. is an Appealable one. Furthermore, that appeal is right of a Party/Litigant

“There is no legal mandatory duty cast upon a court of law to provide an opportunity of hearing to the Opposite Party/ Accused against whom the Learned Judicial Magistrate might commence prosecution proceedings, as per decision of Hon’ble Supreme Court in Pritesh Vs. State of Maharashtra reported in AIR 2002 SC 236.”

Madras High Court

M.Sudalaimani ..Revision vs S.Umaiyal on 20 December, 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/12/2012

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

CRL.R.C.(MD)No.920 of 2011

and

M.P.(MD) No. 1 of 2011

M.Sudalaimani ..Revision Petitioner

Vs.

S.Umaiyal .. Respondent/Respondent

Prayer

Criminal Revision Petition is filed under Section 397 of of Cr.P.C. r/w 401 Cr.P.C. to call for the records relating to the order dated 05.09.2011 in Crl.M.P.NO.1187 of 2011 on the file of the Learned Principal District Munsif cum Judicial Magistrate, Karaikudi and set aside the same and pass such other or further orders as this Court may deem fit and proper in the facts and circumstances of the case.

!For Petitioner … Mr. V.R.Shanmuganathan

^For Respondent … Mr. S.Murugan

* * * * *

:ORDER

The Petitioner has focused the instant Criminal Revision Petition before this Court as against the order dated 05.09.2011 in Criminal M.P.No.1187 of 2011 passed by the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi.

2. The Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, while passing the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 has, among other things, observed that "… As per Section 340 of Cr.P.C., the court must satisfy that it is expedient in interest of justice the enquiry should be made into the offence under Section 195 of Indian Penal Code. On plain reading of the above Section clearly shows that satisfaction of the court is necessary that the respondent intentionally and knowingly gave false evidence. Moreover, the evidence cannot be looked into piecemeal. The whole evidence has to be considered. Moreover, it must be shown that the evidence of the respondent before this Court knowingly gave false evidence. In this case, it is already discussed in the foregoing paragraphs that there is no finding in C.C.No.197 of 2002 that this respondent gave false evidence etc" and resultantly, dismissed the petition.

3.Assailing the correctness of the dismissal order passed by the trial court in Cr.M.P.No.1187 of 2011 dated 05.09.2011, the Revision Petitioner/Petitioner has filed the instant Revision before this Court as an Aggrieved Person.

4.According to the Learned counsel for the Petitioner/ Husband, the trial court has committed an error in dismissing Crl.M.P.No.1187 fo 2011 without appreciating the facts in issue in a proper and real perspective.

5. The Learned counsel for the Petitioner urges before this Court that the trial court should have seen that the Respondent/ Wife has given false evidence and the same has been established as per categorical finding rendered in the judgment in M.C.No.05 of 2003 dated 07.12.2010.

6. Advancing his argument, it is the contention of the Learned counsel for the Petitioner that the Respondent/Wife as P.W.1 in M.C.No.05 of 2003 has given a false evidence that the Petitioner/Husband married one Premalatha. However, the said statement has been found to be a false one by the Judgment in C.C.No.179 of 2002 dated 06.05.2010 passed by the Learned Principal District Munsif – cum – Judicial Magistrate,Karaikudi.

7. Yet another plea taken on behalf of the Petitioner is that the Respondent/Wife as P.W.1 has suppressed the fact that her daughters viz, (the Second and Third Petitioners) in M.C.No.05 of 2003 are majors. However, a claim for maintenance for them also has been made in that proceeding.

8. That apart, the Learned counsel for the Petitioner submits that the Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, without ordering notice to the Respondent/Wife in Crl.M.P.No.1187 of 2011 and without holding any enquiry as contemplated under Section 340 of Cr.P.C. has dismissed the petition erroneously.

9. Lastly, it is the contention of the Learned counsel for the Petitioner/Husband that the Principal District Munsif-cum-Judicial Magistrate, Karaikudi is bound to receive the document in evidence and to conduct a Preliminary Enquiry and then record a finding before proceeding further to lodge a complaint under law.

10. The Learned counsel for the Petitioner/Husband draws the attention of this Court that the Respondent/Wife along with her two daughters as Petitioner Nos. 2 and 3 filed M.C.N. 05 of 2003 on the file of the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi (under Section 125 of Cr.P.C. claiming maintenance from the Revision Petitioner/Husband who was figured as Respondent therein). As a matter of fact the Respondent/Wife in M.C.No.05 of 2003 has claimed monthly maintenance of Rs.1,000/-(Rupees one thousand only) for herself and for her daughters she claimed a sum of Rs.2,000/- (Rupees two thousand only) per month towards maintenance.

11. The Learned counsel for the Petitioner contends that in M.C.No.05 of 2003, the Respondent/Wife has been examined as P.W.1 and that she has deposed that she is employed in a private school getting a salary of Rs.2,000/-(Rupees two thousand only) and from her salary income she is not able to fulfill her essential needs/requirements.

12. Also, the Learned counsel for the Petitioner invites the attention of this Court to the evidence of Respondent/Wife as P.W.1 in M.C.No.05 of 2003 to the fact that where she has stated that she can produce her salary certificate before the court and also, to a suggestion she has stated that it is not correct to state that she is getting an income of Rs.7,000/-(Rupees seven thousand only). Furthermore, the Learned counsel for the Petitioner submits that the Respondent/Wife gets a salary of Rs.7,000/-(Rupees seven thousand only) as per Exs.R.9 to R.10 respectively.

13. The Learned counsel for the Petitioner contends that in the order dated 07.12.2010 in M.C.No.05 of 2003 in paragraph No.11, it is clearly mentioned that ‘Admittedly, the first Petitioner is working as a Teacher in Alagappan Matriculation School and according to P.W.1, she is getting Rs.2,000/- (Rupees two thousand only) per month as salary. On the side of the respondent R.W.2 Kumarappan who is the Head Master of above school was examined. Ex.R.11 is the salary certificate of the First Petitioner. It can be seen from Ex.R.11 that the First Petitioner was getting a salary of Rs.6840/-(Rupees six thousand eight hundred and forty only) in the month of December 2007. R.W.2 in his evidence has clearly stated in the year 2003 the salary of the First Petitioner was Rs.3384/- (Rupees three thousand three hundred and eighty four only) and she was getting a take home salary of Rs.2978/-(Rupees two thousand nine hundred and seventy eight only) in the year 2003. This would clearly falsify the evidence of P.W.1 that she is getting Rs.2,000/-(Rupees two thousand only) at the time of filing of this petition etc. and therefore, it is clear that the Respondent (First Petitioner in M.C.No.5 of 2003) has clearly given false evidence and rendered herself for perjury.

14. Apart from the above, the Learned counsel for the Petitioner refers to paragraph No.7 of the order dated 05.09.2011 in Cr.M.P.No.1187 of 2011 wherein it is inter alia observed that ”In this case, this Court has perused all the documents etc" and further it is also observed that there is no finding in C.C.No.179 of 2002 that this Respondent/Wife gave false evidence and as also opined that the facts not proved and the facts disproved are different and in this case the facts stated by the respondent in the evidence were not disproved and so this Court cannot come to a conclusion that prima facie there is a case for perjury’. According to the Learned counsel for the Petitioner, these observations of the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi are not per se correct in the eye of law.

15. Expatiating his submissions, the Learned counsel for the Petitioner puts forward an argument that before alleging the complaint under Section 340 of Cr.P.C. the following two conditions are to be followed namely 1) a person must have given false evidence

2) In the opinion of Court it is expedient in the interest of justice to make an enquiry.

Added further, it is the stand of the Petitioner that the Principal District Munsif – cum – Judicial Magistrate, Karaikudi has failed to take note of the fact that there is a prima facie evidence to show that the Respondent/Wife has given false evidence.

16. The Learned counsel for the Petitioner submits that the Principal District Munsif – cum – Judicial Magistrate, Karaikudi, has not issued notice to the Respondent/Wife in Crl.M.P.No.1187 of 2011 and straight away he has heard the matter and dismissed the petition without conducting a Preliminary Enquiry and indeed, the Petitioner/Husband’s counsel alone has been heard in Criminal Miscellaneous petition.

17. The categorical stand of the Petitioner is that the Petitioner has not been given an opportunity to let in evidence in Crl.M.P.No.1187 of 2011 before the Principal District Munsif – cum – Judicial Magistrate, Karaikudi. The Learned counsel for the Petitioner refers to Section 191 of Indian Penal Code which runs as under:

"Giving false evidence: – Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence".

Also, he has made a reference to Section 193 of Indian Penal Code which speaks of "Punishment for false evidence" which enjoins thus: Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine"

18. Repelling the contentions of the Learned counsel for the Petitioner, the Learned counsel for the Respondent/Wife contends that the Criminal Revision Petition in Crl.RC.No. 920 of 2011 filed by the Petitioner/Husband as against the impugned order dated 05.09.2011 in CrlM.P.No.1187 of 2011 is not in limini maintainable in law because of the fact that as against the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 the Petitioner is to file an Appeal as per Section 341 of Cr.P.C.

19. Coming to the merits of the matter, the Learned counsel for the Respondent/Wife submits that there is no clear finding in M.C.No.05 of 2003 that the Respondent/Wife has given false evidence and in fact, the whole evidence tendered by the Respondent/Wife before appropriate proceedings belonging to be taken note of and her evidence cannot be viewed in isolation or in piecemeal manner.

20.Further, the Learned counsel for the Respondent/Wife brings it to the notice of this Court that the Respondent/Wife filed a salary certificate in the year 2007 in 2002 what has been the salary received by the Respondent/Wife is to be seen and for the year 2002 salary in respect of the Respondent/Wife no certificate has been given.

21.According to the Learned counsel for the Respondent/Wife in C.C.No.179 of 2002 on the file of the Principal District Munsif cum-Judicial Magistrate, Karaikudi the Revision Petitioner/Husband has been arrayed as the first accused along with the two accused namely A2 and A3 and the Revision Petitioner finally has been convicted for an offence under Sections 498(A) of IPC and Section 4 of Dowry Prohibition Act and sentenced to undergo one year Rigorous Imprisonment and also has been directed to pay fine of Rs.500/- in default to undergo Rigorous Imprisonment for three months for offences under Section 498(A) of IPC and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/- in default. But in fact, Rigorous Imprisonment for three months in respect of an offence under Section 4 of Dowry Prohibition Act and for the sentences were ordered to run concurrently. However, A2 and A3 were found not guilty under Sections 498(A) and 494 of IPC and Section 4 of Dowry Prohibition Act and were acquitted under Section 248(1) of Cr.P.C.

22. The Learned counsel for the Respondent/Wife submits that the Revision Petitioner/Husband has been compulsorily retired from service and he was employed as the Sub Inspector of Police (On Technical Side). Further, it is the contention of the Learned counsel for the Respondent that examination of a Party/Litigant is not necessary and also notice to other side is not necessary and it is open to the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi to deal with Crl.M.P.No.1187 of 2011 in accordance with law.

23. By way of reply, the Learned counsel for the Petitioner/Husband submits that an Appeal can be filed if the order passed by the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi in Crl.M.P.No.1187 of 2011 dated 05.09.2011 is a Full Fledged One and since the impugned order in Crl.M.P.No.1187 of 2011 is not a Full Fledged one viz, without hearing the other side then it will not take away a party’s right to file Revision, wherein the propriety, legality or correctness of the order passed by the Learned Principal District Munsif – cum – Judicial Magistrate, Karaikudi can be challenged in the eye of law.

24. The Learned counsel for the Petitioner/Husband contends that the Respondent/Wife is necessarily to speak the truth and in fact, she has given false evidence in the proceedings in M.C.No. 05 of 2003 mentioning that she gets only Rs.2,000/- as salary in her avocation as Teacher in a private school, when in fact she has been earning more than Rs.2,000/-.

25.It is to be noted that the ingredients of Section 340 of Cr.P.C. apply to all proceedings in all courts de hors whether the matter in a civil court in which the purported offence mentioned in Section 195 of Indian Penal Code was committed, was a criminal case or a civil case. The purpose of Section 340 of Cr.P.C is to provide a safeguard against vexatious or frivolous prosecution. In fact Section 34 of Cr.P.C. and Section 195 of IPC are closely inter linked and have healthy construction. They should be read together as opined by this Court.

26. It cannot be gain said that before initiating an action under Section 340 of Cr.P.C., a Court of Law satisfied that the litigation sought to be proceeded against deliberately, intentionally committed offence. No wonder, Section 340 of Cr.P.C. is intended to be complimentary to Section 195 of IPC in the considered opinion of this Court. The power as per Section 340 of Cr.P.C. is to be exercised with care and caution that too, where it is considered necessary in the ‘interests of justice’. Every false statement averred in a plaint filed or in a written statement may not invite a prosecution as per decision in Vimla Vs. Ranjini Murugan reported in 1988 (2) Crimes 124, 131(Mad).

27. One cannot ignore an important fact that the ingredients of Section 340 of Cr.P.C. are not permitted to be employed as hand maid of private persons to achieve their revengeful attitude against another person. If a party seeking to invoke the benefit of Section 340 of Cr.P.C. is desirous of achieving its oblique motive indirectly, then a care must be taken to see that a court of law is not employed for that as a tool for achieving their own ends.

28. First and foremost, it is to be seen that whether a person has deliberately/intentionally has given false evidence. Secondly, it is to be looked into whether it will be a expedient in the interest of justice to initiate action against him or her in the manner known to law. In short, a court of law should first see whether a person has tendered evidence before the court has contradicted his earlier statement which is a false one.

29. There is no legal mandatory duty cast upon a court of law to provide an opportunity of hearing to the Opposite Party/ Accused against whom the Learned Judicial Magistrate might commence prosecution proceedings, as per decision of Hon’ble Supreme Court in Pritesh Vs. State of Maharashtra reported in AIR 2002 SC 236.

30. Really speaking, a Respondent in a proceeding under Section 340 of Cr.P.C. is not an accused. It is to be remembered that in a Preliminary Enquiry under Section 340 of Cr.P.C. the other side is not entitled to cross examine the Petitioner’s witnesses, as per decision in Hridayanshy Bhattarcharjee Vs. State of Jharkhand reported in 2003 CrlJ 624(626) (Jhar).

31. At this stage, this Court pertinently points out that an order passed under Section 340 of Cr.P.C. is an Appealable one. Furthermore, that appeal is right of a Party/Litigant as per decision reported in AIR 1935 Madras at page

673. Also, an Appeal against the order passed under Section 340 of Cr.P.C. is to be filed before the Competent Forum as specified under Code of Criminal Procedure. Moreover, the Appellate Court can take evidence and also additional evidence as per decision reported in 38 CrlJ at page 561. On consideration of all facts, the Appellate court should see whether there is merit. Otherwise, it will not proceed as per decision reported in AIR 1925 All at page 544.

32. As far as the present case on hand, this Court is of the considered view that as against the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 passed by the Learned Principal District Munsif cum Judicial Magistrate, Karaikudi, the Petitioner/Husband is to prefer only an Appeal before the Appropriate/Competent Forum (not withstanding the fact whether it is a Full Fledge One or otherwise). As such, the instant Revision Petition filed by the Revision Petitioner/Husband as against the impugned order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 passed by the Learned Principal District Munsif-cum- Judicial Magistrate, Karaikudi is not per se maintainable in law. Viewed in that perspective, the Criminal Revision Petition fails.

33. In the result, the Criminal Revision Petition is dismissed as not maintainable. Liberty is granted to the Petitioner/Husband to prefer an Appeal before the Competent Forum as per Section 341 of Cr.P.C. and to seek appropriate remedy in accordance with law, if so advised. As and when the Appeal is filed by the Petitioner/Husband, then it is open to the respective parties to raise all Factual and Legal Pleas before the Appropriate Forum and to seek remedy in the manner known to law.

ses

To,

Supreme Court:- The Husband who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant (Wife). Wifes appeal against the Divorce Order Dismissed

 

Supreme Court of India

 

Supreme Court of India
Parveen Mehta ——Appellant
vs
Inderjit Mehta —— Respondent
on 11 July, 2002
Author: D.P.Mohapatra
Bench: D Mohapatra, B Kumar.

CASE NO.:

Appeal (civil) 3930 of 2002

PETITIONER:

PARVEEN MEHTA

Vs.

RESPONDENT:

INDERJIT MEHTA

DATE OF JUDGMENT: 11/07/2002

BENCH:

D.P. MOHAPATRA, BRIJESH KUMAR.

JUDGMENT:

D.P.MOHAPATRA,J.

Leave granted.

What is the meaning and import of the

expression ‘cruelty’ as a matrimonial offence is the core question on the determination of which depends the result and the fate of this case.

The appellant is the wife of the respondent. They were married according to Hindu rites and customs on 6th December, 1985. The marriage was preceded by negotiation between the two families, ring exchange ceremony, etc. A meeting between the boy and the girl was also arranged at Yamuna Nagar in the State of Haryana. After marriage the spouses stayed together at Panipat where the respondent was posted as a Judicial Officer. They lived together till 28th April, 1986 when they parted company never to stay together again. It is the case of the respondent that right from the first day of the marriage he sensed something abnormal with his wife; he was unable to consummate the marriage as there was no cooperation from the side of the wife for sexual intercourse. Despite several attempts cohabitation was not possible for lack of cooperation on the part of the wife. It is the further case of the respondent that when he first met his wife when some members of the two families met he had noticed that she was looking very frail and weak. When he wanted to know the reason for such state of her health her father and other relations told him that she had been undergoing a strict diet control and had been making efforts to reduce her w.eight

On questioning his wife immediately after the marriage the respondent could ascertain that she was suffering from some ailment and she was under the treatment of Vaid Amar Nath Sastry of Chandigarh. On 10th December, 1985 the respondent took his wife to see Mr.Sastry at Chandigarh who informed him that father of the girl was his close friend and he was already seized of the problems of her health. He gave some medicines to be taken by her. Thereafter they returned to Yamuna Nagar where parents of the respondent were living. Subsequently, the respondent took the appellant to Panipat where he was posted and they started living there and continued with the medicines. In February, 1986 the appellant agreed to be examined by Dr.B.M.Nagpal of Civil Hospital, Panipat. The doctor advised a thorough check up and diagnosis. However, this was not possible since the appellant did not cooperate and ultimately gave out because she was not interested in taking any medical treatment.

The respondent further alleged that the state of health of the appellant continued to deteriorate; she continued to lose weight; she suffered from asthmatic attacks; on account of her ailment her behavior became quarrelsome; and on trifle matters she threatened to leave the matrimonial home. It was further contended that during her stay at Panipat when Surinder Singh Rao and Virender Jain, friends of the respondent visited his place, the appellant refused to prepare tea and started misbehaving with him in presence of the outsiders thereby causing embarrassment to him. Ultimately on 28th April, 1986 her brother and brother’s wife came to Panipat and took the appellant with them. It was the further case of the respondent that when the appellant was with her parents several attempts were made by him offering to give her the best possible medical treatment so that the condition of her health may improve and both of them could lead a happy married life. All such attempts failed. The offer of medical treatment was rejected and even nature of the ailment suffered by her was not disclosed to the respondent.

On one occasion when Shri S.K. Jain, a senior officer of the Judicial Service, then the Legal Remembrancer of Haryana and who later became a Judge of the High Court was discussing the matter with the parties with a view to bring about a settlement the appellant caught hold of the shirt collar of the respondent and created an ugly and embarrassing situation. Again on 30th July 1986 the appellant accompanied by a number of persons searched for the respondent in the Court premises at Kaithal and not finding him there forcibly entered his house and threatened him. A report about the incident was sent to the superior officer of the respondent. Alleging the aforestated facts and circumstances the respondent filed the petition in August, 1996 seeking dissolution of the marriage on the grounds of cruelty and desertion.

The appellant refuted the allegations made in the petition. She denied that her husband had been misled regarding the state of her health before their marriage. She alleged that the marriage was duly consummated and the phera ceremony was performed; and that her husband had been expressing full love and affection towards her. She denied that she suffered from any serious ailment and had been treated by Vaid Amar Nath Sastri. It was her case that she had become pregnant from the wedlock but unfortunately there was miscarriage. It was the further case of the appellant that the respondent and his parents wanted to pressurise the appellant and her parents to agree for a divorce by mutual consent. On 21st June, 1987 when a meeting of relations of both sides took place at the house of her mother’s sister Smt.Parakash Kapur at Yamuna Nagar the respondent stated that the appellant was too frail and weak; that she must be suffering from some disease and therefore, he was not prepared to take her back. Thereafter several attempts were made by her parents and other relations to persuade the respondent to take the appellant to his house but such attempts were of no avail on account of want of any response from the respondent and his parents.

On the pleadings of the parties, the Trial Court framed the following issues :

“1) Whether the respondent-wife has

deserted the petitioner, if so, its

effect? OPP

2) Whether the respondent-wife is

guilty of cruelty, if so, its effect?

OPP

3) Whether this petition is barred by

latches, in accordance with

Section 23(1a) and (d) of the Act?

OPP

4) Relief.”

Both the parties led evidence, both oral and documentary, in support of their cases. The Trial Court on assessing the evidence on record, dismissed the petition for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99 before the High Court assailing the judgment of the Trial Court. The appeal was allowed by the learned Single Judge by the judgment rendered on 1st June, 2000. The learned Single Judge granted the prayer of the respondent for dissolution of the marriage on the ground of cruelty and further held that as the marriage took place about 14 years ago and there was no child out of the wedlock it would be in the interest of justice that the parties should be separated from each other. The operative portion of the judgment is quoted hereunder :

“In view of the discussion as such the only conclusion which can be arrived

at is that despite the fact that the

respondent is a good lady but has

created the aforesaid situation because of her own act and conduct concerning

the non-disclosure of her state of

health and concealment by her above

acted as a mental and physical cruelty to the appellant which entitles him to a decree of divorce. Therefore, the

findings of the learned District Judge on issue Nos.1 to 3 are reversed.

For the foregoing reasons, the

appeal is allowed, marriage between

the parties stands dissolved and a

decree of divorce on the grounds of

desertion and cruelty is hereby granted in favour of the appellant (husband)

and against the respondent (wife). In the circumstances of the case, the

parties are left to bear their own costs. However, it would be appropriate to

ask the husband not to remarry till

30.9.2000. Hence ordered accordingly.”

The wife, who is the appellant herein, filed an appeal before the Division Bench, Letters Patent Appeal No.1000 of 2000, assailing the judgment of the learned Single Judge. The Division Bench of the High Court by the judgment rendered on 8th August, 2000 dismissed the Letters Patent Appeal in limine. The Division Bench held: “Even otherwise, in the facts and circumstances of the case in hand, in our view, it cannot be said that the husband has tried to take advantage of any wrong on his part. Rather, he did make the best possible effort to explore the possibility of detecting the deficiency or disease, if any, and for treatment of poor health of his wife. But, all in vain. We find no merit in the Letters Patent Appeal. It is, therefore, dismissed in limine.” The said judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing for the appellant contended that in the context of facts and circumstances of the case the High Court has erred in granting the prayer for divorce by the respondent on the sole ground of cruelty. He further contended that even assuming that the spouses did not enjoy normal sexual relationship with each other on account of frail health of the appellant and there were heated exchanges between the parties followed by the appellant catching hold of shirt collar of the husband, that is not sufficient to establish a case of cruelty for the purpose of Section 13(1)(ia) of the Act. Shri Singh also contended that if the ground of cruelty fails then the further ground stated in favour of the decree of divorce that the marriage has irretrievably broken down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel appearing for the respondent strenuously contended that in the facts and circumstances of the case the High Court rightly recorded the finding of cruelty by the appellant towards the respondent. Elucidating the point Shri Sudhir Chandra submitted that the respondent was kept in the dark about the poor state of health of the appellant at the time of the marriage negotiations despite the query made by him about the reason for her frail and weak health. After marriage when the respondent was prepared to provide the best possible medical treatment to improve her health neither the appellant nor her parents extended their cooperation in the matter. Further, the erratic and impulsive behavior of the wife caused serious embarrassment to the respondent before his friends and colleagues. The cumulative effect of all the aforesaid facts and circumstances of the case, according to Shri Sudhir Chandra, give rise to reasonable apprehension in the mind of the respondent that it is not safe to continue matrimonial relationship with the appellant. Thus a case of cruelty for the purpose of Section 13(1)(ia) was made out. It was the further contention of Shri Sudhir Chandra that the respondent remarried in December, 2000, two years after the judgment of the Single Judge and nearly four months after the judgment of the Division Bench was rendered. In the facts and circumstances of the case, urged Shri Sudhir Chandra, this is not a fit case for this Court to interfere with the judgment and decree passed by the High Court in exercise of its jurisdiction under Article 136 of the Constitution of India.

As noted earlier, the learned Single Judge granted the respondent’s prayer for dissolution of the marriage on the ground of ‘cruelty’. Therefore, the question arises whether in the facts and circumstances of the case a case for divorce under Section 13(1)(ia) of the Hindu Marriage Act,1955 (for short ‘the Act’) has been made out. The answer to this question depends on determination of the question formulated earlier. In Section 13(1) it is laid down that :

“Divorce.- (1) Any marriage

solemnized, whether before or after the commencement of this Act, may, on a

petition presented by either the

husband or the wife, be dissolved by a decree of divorce on the ground that

the other party

xxx xxx xxx

(ia) has, after the solemnization of

the marriage, treated the petitioner

with cruelty;”

Under the statutory provision cruelty includes both physical and mental cruelty. The legal conception of cruelty and the kind of degree of cruelty necessary to amount to a matrimonial offence has not been defined under the Act. Probably, the Legislature has advisedly refrained from making any attempt at giving a comprehensive definition of the expression that may cover all cases, realising the danger in making such attempt. The accepted legal meaning in England as also in India of this expression, which is rather difficult to define, had been ‘conduct of such character as to have caused danger to life, limb or health (bodily or mental), or as to give rise to a reasonable apprehension of such danger’ (Russel v. Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition, Volume II page 87]. The provision in clause (ia) of Section 13(1), which was introduced by the Marriage Laws (Amendment) Act 68 of 1976, simply states that ‘treated the petitioner with cruelty’. The object, it would seem, was to give a definition exclusive or inclusive, which will amply meet every particular act or conduct and not fail in some circumstances. By the amendment the Legislature must, therefore, be understood to have left to the courts to determine on the facts and circumstances of each case whether the conduct amounts to cruelty. This is just as well since actions of men are so diverse and infinite that it is almost impossible to expect a general definition which could be exhaustive and not fail in some cases. It seems permissible, therefore, to enter a caveat against any judicial attempt in that direction (Mulla Hindu Law, 17th Eidition, Volume II, page 87).

This Court in the case of Dastane vs. Dastane, AIR 1975 SC 1534, examined the matrimonial ground of cruelty as it was stated in the old Section 10(1)(b) and observed that any inquiry covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious to live with the respondent. It was further observed that it was not necessary, as under the English law that the cruelty must be of such a character as to cause danger to life, limb or health, or as to give rise to a reasonable apprehension of such a danger though, of course, harm or injury to health, reputation, the working character or the like would be an important consideration in determining whether the conduct of the respondent amounts to cruelty or not. In essence what must be taken as fairly settled position is that though the clause does not in terms say so it is abundantly clear that the application of the rule must depend on the circumstances of each case; that ‘cruelty’ contemplated is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent. The treatment accorded to the petitioner must be such as to cause an apprehension in the mind of the petitioner that cohabitation will be so harmful or injurious that she or he cannot reasonably be expected to live with the respondent having regard to the circumstances of each case, keeping always in view the character and condition of the parties, their status environments and social values, as also the customs and traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra Pandey, (2002) 2 SCC 73, this Court construing the question of ‘cruelty’ as a ground of divorce under Section 13(1)(ia) of the Act made the following observations :

“Treating the petitioner with cruelty is a ground for divorce under Section

13(1)(i-a) of the Act. Cruelty has not been defined under the Act but in

relation to matrimonial matters it is

contemplated as a conduct of such

type which endangers the living of the petitioner with the respondent. Cruelty consists of acts which are dangerous to life, limb or health. Cruelty for the purpose of the Act means where one

spouse has so treated the other and

manifested such feelings towards her

or him as to have inflicted bodily

injury, or to have caused reasonable

apprehension of bodily injury, suffering or to have injured health. Cruelty may be physical or mental. Mental cruelty

is the conduct of other spouse which

causes mental suffering or fear to the matrimonial life of the other. “Cruelty”, therefore, postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or

her mind that it would be harmful or

injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary

wear and tear of family life. It cannot be decided on the basis of the

sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. In the instant case both the

trial court as well as the High Court

have found on facts that the wife had

failed to prove the allegations of cruelty attributed to the respondent.

Concurrent findings of fact arrived at by the courts cannot be disturbed by

this Court in exercise of powers under Article 136 of the Constitution of India. Otherwise also the averments made in

the petition and the evidence led in

support thereof clearly show that the

allegations, even if held to have been proved, would only show the sensitivity of the appellant with respect to the

conduct of the respondent which

cannot be termed more than ordinary

wear and tear of the family life.”

This Court, construing the question of mentral cruelty under Section 13(1)(ia) of the Act, in the case of G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296, observed :

“The court has to come to a conclusion whether the acts committed by the

counter-petitioner amount to cruelty,

and it is to be assessed having regard to the status of the parties in social life, their customs, traditions and other similar circumstances. Having regard

to the sanctity and importance of

marriages in a community life, the

court should consider whether the

conduct of the counter-petitioner is

such that it has become intolerable for the petitioner to suffer any longer and to live together is impossible, and then only the court can find that there is

cruelty on the part of the counter-

petitioner. This is to be judged not

from a solitary incident, but on an

overall consideration of all relevant

circumstances.”

Quoting with approval the following passage from the judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337, this Court observed therein:

“Mental cruelty in Section 13(1)(i-a)

can broadly be defined as that conduct which inflicts upon the other party

such mental pain and suffering as

would make it not possible for that

party to live with the other. In other words, mental cruelty must be of such

a nature that the parties cannot

reasonably be expected to live together. The situation must be such that the

wronged party cannot reasonably be

asked to put up with such conduct and

continue to live with the other party. It is not necessary to prove that the

mental cruelty is such as to cause

injury to the health of the petitioner. While arriving at such conclusion,

regard must be had to the social

status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither

possible nor desirable to set out

exhaustively. What is cruelty in one

case may not amount to cruelty in

another case. It is a matter to be

determined in each case having regard

to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made”.

Clause (ia) of sub-Section (1) of Section 13 of the Act is comprehensive enough to include cases of physical as also mental cruelty. It was formerly thought that actual physical harm or reasonable apprehension of it was the prime ingredient of this matrimonial offence. That doctrine is now repudiated and the modern view has been that mental cruelty can cause even more grievous injury and create in the mind of the injured spouse reasonable apprehension that it will be harmful or unsafe to live with the other party. The principle that cruelty may be inferred from the whole facts and matrimonial relations of the parties and interaction in their daily life disclosed by the evidence is of greater cogency in cases falling under the head of mental cruelty. Thus mental cruelty has to be established from the facts (Mulla Hindu Law, 17th Edition, Volume II, page 91).

In the case in hand the foundation of the case of ‘cruelty’ as a matrimonial offence is based on the allegations made by the husband that right from the day one after marriage the wife was not prepared to cooperate with him in having sexual intercourse on account of which the marriage could not be consummated. When the husband offered to have the wife treated medically she refused. As the condition of her health deteriorated she became irritating and unreasonable in her behaviour towards the husband. She misbehaved with his friends and relations. She even abused him, scolded him and caught hold of his shirt collar in presence of elderly persons like Shri S.K.Jain. This Court in the case of Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : “Sex plays an important role in marital life and cannot be separated from other factors which lend to matrimony a sense of fruition and fulfillment”.

Cruelty for the purpose of Section 13(1)(ia) is to be taken as a behavior by one spouse towards the other which causes reasonable apprehension in the mind of the latter that it is not safe for him or her to continue the matrimonial relationship with the other. Mental cruelty is a state of mind and feeling with one of the spouses due to the behavior or behavioral pattern by the other. Unlike the case of physical cruelty the mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances in which the two partners of matrimonial life have been living. The inference has to be drawn from the attending facts and circumstances taken cumulatively. In case of mental cruelty it will not be a correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take the cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner in the divorce petition has been subjected to mental cruelty due to conduct of the other.

Judged in the light of the principles discussed above what we find is that right from the beginning the matrimonial relationship between the parties was not normal; the spouses stayed together at the matrimonial home for a short period of about six months; the respondent had been trying to persuade the appellant and her parents to agree to go for proper medical treatment to improve her health so that the parties may lead a normal sexual life; all such attempts proved futile. The appellant even refused to subject herself to medical test as advised by the doctor. After 21st June, 1987 she stayed away from the matrimonial home and the respondent was deprived of her company. In such circumstances, the respondent who was enjoying normal health was likely to feel a sense of anguish and frustration in being deprived of normal cohabitation that every married person expects to enjoy and also social embarrassment due to the behavior of the appellant. Further, the conduct of the appellant in approaching the police complaining against her husband and his parents and in not accepting the advice of the superior judicial officer Mr.S.K.Jain and taking a false plea in the case that she had conceived but unfortunately there was miscarriage are bound to cause a sense of mental depression in the respondent. The cumulative effect of all these on the mind of the respondent, in our considered view, amounts to mental cruelty caused due to the stubborn attitude and inexplicably unreasonable conduct of the appellant.

The learned Single Judge in his judgment has discussed the evidence in detail and has based his findings on such discussions. In the Letters Patent Appeal the Division Bench on consideration of the facts and circumstances of the case agreed with the findings recorded by the learned Single Judge. In the context of the facts and circumstances on record we are of the view that the learned Single Judge rightly came to the conclusion that the prayer of the respondent for dissolution of the marriage on the ground of cruelty under Section 13(1)(ia) of the Act was acceptable. Therefore, the Division Bench committed no error in upholding the judgment of the learned Single Judge.

As noted earlier the parties were married on 6th December, 1985. They stayed together for a short period till 28th April 1986 when they parted company. Despite several attempts by relatives and well-wishers no conciliation between them was possible. The petition for the dissolution of the marriage was filed in the year 1996. In the meantime so many years have elapsed since the spouses parted company. In these circumstances it can be reasonably inferred that the marriage between the parties has broken down irretrievably without any fault on the part of the respondent. Further the respondent has re- married in the year 2000. On this ground also the decision of the High Court in favour of the respondent’s prayer for dissolution of the marriage should not be disturbed. Accordingly this appeal fails and is dismissed. There will, however, be no order for costs.

 

 

http://www.indiankanoon.org/doc/1353460

 

Categories: Divorce Tags:

Madhya Pradesh HC:- General experience now that relatives of husband are falsely implicated by the wife just to take revenge.

February 21, 2013 Leave a comment

MADHYA PRADESH HIGH COURT

M.Cr.C. No. 11962/2012

11.2.2013

PRADEEP SAHU

Vs

THE STATE OF MADHYA PRADESH

Shri Narendra Kumar, Advocate for the petitioners.

Shri V.K.Lakhera, PL for the State.

Shri Neeraj Vegad, Advocate for respondent No. 2.

Coram:- Shri Anil Sharma, J

Heard finally with the consent of the learned counsel for the parties.

The  petitioners  have  filed  this  petition  invoking  the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C.  for  quashing   the  proceedings  of  Criminal  Case  No. 6509/2012 pending in the Court of JMFC, Bhopal for the offence punishable under Section 498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act. Learned counsel  for  the  petitioners has submitted  that marriage  of  respondent  No.  2  and  petitioner  No.  1  was performed  on  21.11.2009.  After  about  one  year  of  their marriage,  they  were  living  separately  from  the  family  of petitioner No. 1. On 3.6.2011, respondent No. 2 was admitted in the hospital for delivery of a child, where she delivered a baby girl and according to discharge ticket, she remained admitted in the hospital from 3.6.2011 to 8.6.2011. Before delivery of child, respondent No. 2 left the house of petitioner No. 1 in his absence and was living in her parental house. After delivery, petitioner No. 1 made efforts to bring his wife back, but could not succeed, therefore,  he  filed  a  petition  under  Section  9  of  the  Hindu Marriage Act on 9.7.2012 in the Court of Principal Judge, Family Court, Bhopal. Notice of the case was served on respondent No. 2 on 11.7.2012. Copy of acknowledgment has been filed by the petitioners as Annexure A-4. On 16.7.2012, a written complaint was  filed  by  the  complainant/respondent  No.  2  against  the petitioners, on the basis of which FIR has been registered vide Crime No. 70/2012 at Mahila Thana, Bhopal, thereafter challan has been filed in the trial Court. Counsel has further submitted that  respondent No. 2 lodged the report at P.S. after receiving the notice of petition filed by petitioner No. 1 under Section 9 of the Hindu Marriage Act. Before more than one year of lodging the  FIR, petitioner  No.  1  and  respondent  No.  2  were  living separately from other petitioners and other petitioners have no concern  with  the  alleged offence  and they have  been  falsely implicated  being  close  relatives  of  petitioner  No.  1.  Learned counsel for the petitioners has also questioned the genuineness of complaint filed by respondent No. 2 as it bears the signatures in Hindi while on other documents, the signatures are made in English.

Learned counsel for respondent No. 2  has opposed the petition and submitted that the allegation of false implication of the petitioners is baseless, therefore, this petition is liable to be dismissed.

Counsel has placed reliance on the judgment of this Court in  Dashrath P. Bundela and others Vs. State of M.P. and another   –    I.L.R. [2011] MP 2923, in which it was not disputed that respondent No. 2 Gayatri was living separately since one year as mentioned by herself in the FIR and she was having three children. However, this Court observed that there is no specific allegation that when demand was made, when she was beaten, by whom, no specific year, month, date  or  time  was mentioned. The report was lodged on 11.3.2006, just after the filing of the divorce petition against respondent No. 2 and date of appearance on the aforesaid case i.e. 10.3.2006. It has been held that no prima facie case is made out against the petitioners, who  are  near  relatives  of  husband  of  respondent  No.  2  and permitting  to  continue  such  criminal  proceedings,  would  be abuse of process of law and prosecution against the petitioners was quashed. In the instant case also no specific allegation has been  made  against  petitioner  Nos.  2  to  7.  Before  delivery, respondent  No.  2  left  the  house  of  petitioner  No.  1  without informing him. There  is no specific allegation  when  she  was beaten by any of the petitioners. It is general experience now that relatives of husband are falsely implicated by the wife just to take revenge of ill treatment by the husband.

Resultantly, in the light of the decision of this Court in Dashrath P. Bundela (supra), the petition is allowed in part. The proceedings  of  Criminal  Case  No.  6509/2012  pending  in  the Court of JMFC, Bhopal for the offence punishable under Section 498-A/34 of the IPC and 3/4 of the Dowry Prohibition Act so far

as it relates to petitioner Nos. 2 to 7, are quashed. However, the trial Court is directed to proceed with the  prosecution with respect to petitioner No. 1 Pradeep Sahu.

 

(A.K. Sharma)

 

Judge

Categories: 498A, Without Mutual Consent Tags:

Madhya Pradesh HC:- DNA report which proves that the MAN is responsible for Child, is itself sufficient to Quash the proceedings of RAPE.

February 21, 2013 Leave a comment

M.Cr.C. No. 9896/2010

 

MADHYA PRADESH HIGH COURT

M.Cr.C. No. 9896/2010

12.2.2013

 

 

CHANDRA SHEKHAR DUBEY

Vs

THE STATE OF MADHYA PRADESH

 

Shri S.C.Datt, Sr. Counsel with Shri Nishant Datt for the petitioner.

Shri Sameer Chile, PL for the State.

Coram:- Shri Anil Sharma, J

Arguments heard.

Earlier registered as Criminal Revision No. 1255/2001 and it was ordered to be converted into the petition under Section 482 of the Cr.P.C. by this Court vide order dated 15.9.2010.

The  petitioner  has  filed  this  petition  invoking  the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C. for quashing and setting aside the order of framing of charge dated 1.12.2001 passed by learned Additional Sessions Judge/Special Judge, Hoshangabad in S.T. No. 62/2001 pending in the trial Court for the offence punishable under Section 376 of the IPC read with Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act, 1989.

Learned Sr. Counsel for the petitioner has challenged the order of framing the charge on the ground that the DNA test was conducted by the prosecution agency and report of which has been filed along with the chalan. The DNA report  shows that the petitioner is not the biological father of the child of prosecutrix Raghuvanti Bai. Learned Sr. Counsel has also drawn attention of this Court towards the report (Annexures 3 and 4) submitted by the President, M.P. Rajya Anusuchit Janjati Aayog after taking the statement of prosecutrix and other witnesses, according to which the allegation of commission of rape or sexual intercourse resulting into pregnancy of complainant, has been found false.

The complainant has alleged in her complaint that the petitioner has committed rape on her several times resulting in her pregnancy but she has not been able to mention the name of the Forest Officer responsible for pregnancy. She only uttered the name “Ranger Sahab”. It has also been found that ealier also she became pregnant twice under suspicious circumstances and she tried to settle the dispute for amount of Rs. One Lac, which has not paid, therefore, she falsely implicated the petitioner.

The  allegation of complainant is that the boy was born due to commission of rape by the petitioner only and as per the DNA report the petitioner is not the biological father of son of the prosecutrix, which shows that the prosecutrix was having bodily  relations  with  some  other  person.  The case  of  the petitioner falls under circumstances Nos. 1, 5 and 7  laid down by  the  Apex  Court  in  the  case  of  State  of  Haryana  Vs. Choudhary Bhajan Lal – 1992 AIR SCW 237.  The relevant circumstances are reproduced below :-

In  following  categories  of  cases, the High Court may in exercise of powers under Art. 226 or under S. 482 of the Cr.P.C. may interfere in proceedings relating to cognizable offences  to  prevent  abuse  of  the process of any Court or otherwise to  secure  the  ends  of  justice.

However,  power  should  be exercises sparingly and that too in the rarest of rare cases.

1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face  value  and  accepted  in their  entirety  do  not  prima  facie constitute any offence or make out a case against the accused.

2)………………………..

3)……………………….

4)……………………….

5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can  ever  reach  a  just  conclusion that there is sufficient ground for proceeding against the accused.

6)………………………

7)  Where a criminal proceeding is manifestly attended with mala fide and/or  where  the  proceeding  is maliciously  instituted  with  an ulterior  motive  for  wreaking vengeance  on  the  accused  and with  a  view  to  spite  him  due  to private and personal grudge.

Considering the DNA report, no offence under Section 376 of  the  IPC  or  Section  3(1)(xii)  of  the  SC/ST  (Prevention  of Atrocities) Act is made out against the petitioner. Even if the report of the President, M.P. Rajya Anusuchit Janjati Aayog is not taken into consideration, the DNA report itself is sufficient to quash the proceedings under Section 482 of the Cr.P.C. Thus, in my opinion, the learned trial Court is not justified in framing the charge under Section 376 of the IPC or under Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act.

Resultantly, the petition is allowed. The impugned order is hereby set aside. The petitioner is discharged from the charges under Section 376 of the IPC and Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act.

 

Let a copy of this order be sent to the trial Court for information and necessary action.

 

(Anil Sharma)

 

Judge

 

PB

Supreme Court:- Why Trail Judge not make complaints u/s 340 CrPC for Perjury?

February 21, 2013 4 comments

SUPREME COURT OF INDIA

PETITIONER:                  SWARAN SINGH

Vs.

RESPONDENT:    STATE OF PUNJAB

DATE OF JUDGMENT:            26/04/2000

BENCH:            Ruma Pal, D.P. Wadhwa

HEAD NOTE:-

Dismissing the appeals, the Court Held : Per Ruma Pal, J

1.1. The eye-witnesses’ accounts of the accused persons’ involvement in the crime are not only consistent but were duly corroborated by mate-rial evidence. The enmity between the accused and deceased was estab-lished. Thus, Courts below were justified in convicting and sentencing the accused- appellants. [581-G; 582-B]

1.2. Accused `SS’ has admitted his presence at the scene of occur-rence with loaded double barrel gun and a cartridge belt. His defence that he had not fired by any shots and the deceased in a drunken State were the aggressors cannot be accepted in view of the medical evidence. According to the Chemical Examiner’s report, the alcohol concentration found in the viscera of deceased neither showed that it had been consumed immediately prior to the occurrence nor was it sufficient to make the deceased inebri- ated. [582-C]

2. The site plan, photographs showing position of deceased persons and the blood stained earth collected from the spot supports the prosecution case that the deceased were killed at the spot next to the truck and not near accused SS’s house as claimed by him. If indeed the deceased were shooting indiscriminately as alleged by the accused there would have been some pellets on the walls of SS’s house. It was not even suggested to any of the witnesses in the prosecution that there were pellets or pellet marks near SS’s house. Thus, both the Trial Court and High Court rightly rejected the story of accused to explain the presence of the truck at the scene of occurrence. Further, the fact that the hitting was at close range supports the evidence of the eye-witnesses and runs contrary to the defence account of the incident. [581-G-H; 582-A]

Forensic Science in Criminal Investigation & Trials (3rd Edn.) P. 280; Fisher, Svensson and Wendel’s Techniques of Crime Scene Investigation (4th Edn. P. 296), referred to.

3.  Merely because one portion of the evidence of eye-witnesses is disbelieved does not mean that the Courts were bound to reject all of it. Thus, non-acceptance of evidence of PW-3 and PW-4 by Courts below regarding the involvement of `M’ will not render their evidence regarding involvement of appellants unbelievable. [583-D]

4.  PW-1, Doctor has stated in his cross-examination that both the deceased could have met their death at about 4 P.M. on the fateful day, but this does not by itself establish the fact that the deceased were killed at 4 P.M. The evidence of PW 1, in chief was that the death could have been caused within 24 hours prior to the post-mortems. Therefore, PW-1’s evidence is equally consistent with the case of the prosecution that the incident took place at 7.45 P.M. [583-H]

5. Minor discrepancies in the testimony of PW-5, Investigating Officer, are not sufficient to discard the case of the prosecution or to throw doubt on the eye-witnesses’ testimony. Furthermore, the Trial commenced about three years after the incident and it is not unlikely that the Investi- gating Officer could not remember the details of the investigation. [584-G]

Per Wadhwa, J. (Supplementing):

1. A criminal case is built on the edifice of evidence, evidence that is admissible in law. For that witnesses are required whether it is direct evidence or circumstantial evidence. Here are the witnesses who are a harassed lot. A witness in a criminal trial may come from a far-off place to find the case adjourned. He has to come to the court many times and at what cost to his own self and his family is not difficult to fathom. It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only that a witness is threatened; he is abducted; he is maimed; he is done away with; or even bribed. There is no protection for him. Then appropriate diet money for a witness is a far cry. Proper diet money must be paid immediately to the witness and even sent to him and he should not be left to be harassed by the subordinate staff. If the criminal justice system is to be put on a proper pedestal, the system cannot be left in the hands of unscrupulous lawyers and the sluggish State machinery. All the subordinate courts, should be linked to the High Court with a computer and a proper check is made on the adjournments and recording of evidence. [585-G-H; 586-A-D]

2. Perjury has also become a way of life in the law courts. A trial judge knows that the witness is telling a lie and is going back on his previous statement, yet he does not wish to punish him or even file a complaint against him. He is required to sign the complaint himself which deters him from filing the complaint. Perhaps law needs amendment to clause (b) of Section 340(3) of the Code of Criminal Procedure in this respect as the High Court can direct any officer to file a complaint. To get rid of the evil of perjury, the court should resort to the use of the provisions of law as contained in Chapter XXVI of the Code of Criminal Procedure. [586-F-G] 

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 721 of 1993.

From the Judgment and Order dated 18.9.92 of the Punjab and Haryana High Court in Crl.A. No. 315-DB of 1991.

WITH Criminal Appeal No. 720 of 1993.

PETITIONER: SWARAN SINGH

            Vs. 

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT:            26/04/2000

 

BENCH: Ruma Pal, D.P. Wadhwa

JUDGMENT:  RUMA PAL, J.

These appeals have been preferred from the decision of the  Punjab  & Haryana High Court  holding  the  appellants guilty under  Section 302 and Section 302/34 of the  Indian Penal  Code  (IPC) in connection with the death of  Shamsher Singh  and  Amar  Singh.   The  Additional  Sessions  Judge, Ludhiana  as well as the High Court accepted the case of the prosecution  and  found the  guilt of  the  appellants was established  beyond  reasonable doubt. The  case  of the prosecution was that on 24th April, 1986 at about 7.30 p.m., Karnail Singh (PW3)  was driving a Car with  Gurmel  Singh (PW4)  sitting next to him and Shamsher Singh and Amar Singh seated in  the rear. All of them  had  been to  village Bharthala  to  inquire about purbias (labourers) from Dilbagh Singh. They did not find Dilbagh Singh  nor any purbia and were on their way back to Samrala when a truck started continuously  blowing its  horn  behind  the car. Shamsher  Singh asked PW 3 to stop the car which PW 3 did.

Shamsher  Singh got down from the car and started looking at the  truck to identify who the driver was.  Jagjit Singh who was driving the truck, brought the truck along side the car. Jagjit Singhs son Mittar Pal ( also known as Lovely) and Swaran            Singh were seated next to Jagjit Singh in the  front cabin  of the truck.  Swaran Singh opened the left window of the  truck and shot Shamsher Singh in the chest with his  12 Bore  Double Barrel Gun .  Shamsher Singh died on the  spot. On  hearing  the shot, Amar Singh got down from the car and went  to the back of the truck. Then Jagjit Singh, his son Lovely as  well  as one Amrik Singh got out of the  truck.

Jagjit  Singh fired at Amar Singh hitting Amar Singh in the chest.  Amrik Singh told Jagjit Singh to fire more shots at Amar Singh.  Whereupon Lovely took the 12 Bore Double Barrel Gun  from  Jagjit  Singh and fired two more  shots  at Amar Singh, one of which hit Amar Singh in the neck and the other in  the stomach.  The assailants fired more shots  at Amar Singh. Amar Singh died on the spot.  While the  assailants were  firing shots, Satish Kumar, who got down from back  of the  truck also received a shot.  PW 3 and PW 4 both  raised an  alarm whereupon the assailants fled away firing shots in the  air  as they ran.            The motive for the crime alleged  by the  prosecution  was  that Swaran Singhs  truck  had  been de-listed  from the Truck Union of Samrala by Shamsher Singh who  was the President of the Truck Union, Samrala.  It was also alleged that there was rivalry between Jagjit Singh and Shamsher  Singh because of the forthcoming elections to            the Presidents  Office of the truck union which was to be  held about  a  week            later.            On 24th April 1986  at  9.30            p.m. Karnail            Singh            (PW 3) lodged a First Information Report  at the Police Station, Samrala.  SI Karnail Singh, S.H.O.            P.S. Samrala            (PW 5) went to the site and took possession of            the truck,            the car, the registration papers, the blood  stained earth  from near the dead bodies of the deceased, two  empty cartridges  from  the  cabin  of the truck  and            four  empty cartridges from near the dead body of Amar Singh.  According to  the PW 5 he found Satish Kumar who had been wounded  at the  spot  and sent him to the Civil Hospital, Samrala. He then prepared an inquest report and sent the dead bodies for post  mortem  to  the Civil Hospital, Samrala. As far as Shamsher  Singh was concerned the post mortem was  performed at 10.30 A.M.  on 25th April, 1986.  The post mortem of Amar Singh was done the same day at 12.40 P.M.  Both post mortems had  been  performed  by Dr.Rajiv Bhalla,  Medical  Officer, Civil Hospital Samrala (PW 1). According to the post mortem report Shamsher  Singh had the following injuries:-  There was a wound 2 cms in diameter on the right side of the chest with  corresponding  injury  on the shirt and  banian. The margins were  blackened  and rolled inwards with clots present.  The wound  was  present  in the  2nd  and 3rd intercostal  space in the mid clavicular line.            The  remnant of  cartridge  and pellets were removed from the  wound            and sealed.

In the opinion of PW 1 the cause of death was fire arm injury leading to the rupture of the right lung  and            left lung  leading to haemorrhage, shock and death.            It was            also stated            that  the death was instantaneous and injuries            were ante  mortem in nature and were sufficient to cause death in the  normal course.  The following six wounds were found  on Amar  Singh by PW 1:- 1.  Wound 3.5 cms diameter on the left side  of  chest with blackened margins with rolled in  ends. The  shirt  was blackened with corresponding injury  on the shirt. The left strip of banian was missing.  The wound was 10  cm            deep and in the area of Ist and second intercostal space. The remnant of cartridge was seen in the wound and it was removed and sealed.

2.   Wound 3 cm diameter in the middle of the chest in the  anterior  triangle of the neck.  The wound was 7 cm  in depth  with  remnant  of cartridge and pellets removed and sealed.

3.   Wound  3 cm diameter on the abdomen in the  right upper guadrant with intestine protruding out of it 8 cm deep with  margin  rolled  in and  surroundings  blackened. The intestines  were ruptured and there was corresponding cut on the  shirt  and banian with margins blackened.            The  pellets were removed from injury and sealed.

4.   A  penetrating  wound  2.5 cms  diameter  on            the posterior  aspect of the left leg in the popli togal fossa 2 cm  above  the            knee joint line with rolled in            margins            and blackened  ends.   The wound was bone deep with remnants  of cartridges  and            pellets embodied in the femur.              There            was fracture  of  the  lower  and of femur.              The  pellets            were removed            and  sealed.            There was corresponding cut  in            the pajama with margins blackened.

5.   A  penetrating wound 2.5 cm diameter in the            left leg  3            cm below the knee joint with rolled in            margins            and blackened  ends            with corresponding cut on the pajama.            The injury was bone deep and there was fracture of the upper end of tibia.

6.   Penetrating  wound 2 cm diameter on the left            leg rolled in margins and blackened end 3 cm below injury No.  5 pellet removed and sealed. In  the opinion of PW 1 the cause of death was due  to the injuries which were ante mortem in nature and sufficient to  cause  death in the ordinary course.  The various  items collected  by  PW  5 from the site as well as parts  of            the viscera            of  the deceased which had been removed during            the post  mortem  were sent to the Forensic            Science  Laboratory (FSL)  by the police for chemical analysis.  On 26th  April, 1986  Swaran  Singh  surrendered and handed over a  12            Bore Double            Barrel              Gun  (Ex.    P-22)  before  the   Judicial Magistrate,  Samrala (PW 6), who gave it on the same day  to PW  5.            Three months later on 26th July, 1986            Gajja  Singh father            of Jagjit Singh produced a 12 Bore Double Barrel Gun (Ex.   P  23)  which was the licenced gun  of  Jagjit  Singh before            PW  5.            After six weeks after            that,  the  Sarpanch produced  another  12 Bore Double Barrel Gun which  was            the licensed  gun of Shamsher Singh (Ex.  P 24).  Three other 12 Bore  Double Barrelled Guns were produced by other witnesses on  27th  October, 1986 (Ex.  P25, Ex.            P26 and            Ex.   P27). Surprisingly,  although Jagjit Singh was named in the FIR he was not arrested but the case was taken up for investigation by  Shri Mohinder Singh, DSP, Shri Baldev Sharma, DSP,            Shri Sanjeev              Gupta,  SP  and   Shri  B.P.Tiwari,  DIG,   Crime, Chandigarh  all            of  whom  found  that            Jagjit            Singh  was innocent.   The            police            accordingly only  challaned  Swaran Singh.            Being            aggrieved,  PW 3 filed a  complaint  on            Ist December,  1986            against  Jagjit Singh, Mittar Pal  Singh  ( alias  Lovely)            and Amrik Singh.  All the four accused            were committed  to trial on 22nd September, 1988.  The  objection of  the accused that the complaint case and the challan case could  not be clubbed was rejected by the Trial Court on 8th February,  1989            and the trial commenced on  18th  February, 1989.            The  Additional            Sessions  Judge,  Ludhiana  charged Swaran            Singh and Jagjit Singh under Section 302/34 IPC            and Amrik  Singh and Mittar Pal Singh under Section 302/34            IPC. All four accused were also charged under Section 307/34 IPC. Apart  from  tendering the formal evidence of Constable            Dev Bharath,  AMHC Jai Singh, Constables Hazura Singh and Jagtar Singh on affidavits (as these witnesses were not required by the  defence  for  cross-   examination),  the            prosecution examined  seven witnesses in support of the charges, namely, Dr.   Rajiv  Bhalla (PW 1), Ashok Kumar, Draftsman  (PW            2), Karnail            Singh            (PW 3), Gurmel Singh (PW 4), Karnail  Singh, SHO  PS Samrala (PW 5), K.S.  Bhullar, Judicial            Magistrate,  amrala            (PW  6) and Randhir Singh (PW 7).  Swaran Singh  in his  defence stated that he was a member of the Truck  Union and  was  actively helping Jagjit Singh, the co-accused            who was a rival candidate of Shamsher Singh, the deceased in the election  to the Presidentship of the Truck Union which            was to  take  place on 3.5.86.  According to Swaran Singh,            both the  deceased with the intention of scaring away the helpers of  Jagjit  Singh  came armed to the front of the  house  of Swaran Singh  on  24.4.86.  When Swaran Singh reached his house  in  his truck at 4.00 p.m.  along with  his  cleaner, Satish,            he found the deceased in a drunken state,  shouting and  using  abusive language.  The deceased  allegedly            were also  firing  indiscriminately Swaran Singh claimed that  he ran  away  leaving his licenced loaded gun,  the  cartridges along with the belt and his cleaner behind in the truck.  He further            stated that the cleaner, Satish received gun  shots at  the            hands            of the deceased.  He claimed  that  the            eye witnesses were procured.  Jagjit Singhs defence was that he had  been  falsely  implicated because of his  rivalry            with Jagjit            Singh  in relation to the truck union.            Amrik  Singh and  Mittar  Pal  Singhs  defence was that  they  were            not present            at the spot at all.  They examined three witnesses, namely,            the  Ahlmad, the Clerk (Complaints) and  the  Clerk (Records) of the Deputy Commissioners office of Ludhiana to prove  that  they  had            moved            an  application            before            the concerned  authorities for having been falsely implicated in the  case.  The Trial Court acquitted Amrik Singh and Mittar

Pal  Singh  on the ground that the prosecution had not            been able  to  establish their guilt.  The Trial Court,  however,

convicted  Swaran Singh under Section 302 IPC for the murder of  Shamsher  Singh  and under Section 302/34  IPC  for            the murder of  Amar  Singh.  Jagjit Singh was  convicted  under Section 302  IPC  for the murder of Amar  Singh  and  under Section 302/34 IPC for the murder of Shamsher Singh. Both the accused were sentenced to life imprisonment and to pay a fine of Rs.5,000/- or in default to further undergo rigorous imprisonment  for  one year  in  respect  of  each  of  the offences.  The amount of fine, if recovered, was directed to be  paid to the next kin of Shamsher Singh and Amar Singh as compensation.  The   sentences  were directed   to run concurrently. Three appeals were preferred before the High Court  of Punjab and Haryana.  The first appeal was filed by Swaran Singh  against his conviction, (Criminal Appeal No. 315/DB of 1991), the second appeal was preferred by  Jagjit Singh  against his conviction, (Criminal Appeal No.   204/DB of 1991), and the third appeal was preferred by the State of Punjab  (Criminal Appeal No.270/DB of 1992) against the acquittal  of Mittar Pal Singh. The High Court disposed  of all  the  appeals by a common judgment dated 18th  September 1992. The High Court dismissed the States appeal  against the  acquittal of Mittar Pal Singh but affirmed the findings of  the Trial Court in respect of Jagjit Singh and  Swaran Singh. However, the sentences were altered by setting aside the  sentences of  fine imposed.  Being  aggrieved  by the decision  of  the High Court, Swaran Singh and Jagjit  Singh have  preferred appeals before this Court.  It is  contended before            us  by both the appellants that both the Courts            had erred in relying on the eye witnesses, namely, PW 3 and PW 4 as  their account of the incident in so far as it related to Mittar            Pal  Singh had been disbelieved by both the  courts.

It  is further submitted  that the  evidence of  the eye witnesses  that the  deceased had not drunk  alchohol was belied by  the Report of the FSL.  It is also pointed out that  Dilbagh  Singh from whom inquiries  regarding  purbias were  allegedly            sought to be made by the deceased  had            not been  examined            as a witness.  It is further contended            that the  investigating officers evidence was inconsistent  with the  evidence  on  record.  The appellants claim  that            the incident  in fact had taken place in front of Swaran Singhs house  at  4.00            p.m.  and that this was  supported  by            the evidence  of  PW 1, both as regards the deceased as well  as Satish,            cleaner  of the truck.            It is further claimed            that there  was  as such a delay in lodging of the  complaint  by 5-1/2  hours during which time the alleged eye witnesses had concocted  the            story of involvement of the accused.  It  is claimed            that they had no motive, nor was there any evidence led  by the prosecution as to their motive for killing            Amar Singh.            Finally, as far as Jagjit Singh is concerned, it is stated            that apart from the eye witnesses account there was nothing            to  connect  Jagjit Singh with the  crime.   It  is pointed            out  that  the ballistic  experts  report  clearly showed that the cartridges recovered from the spot could not be linked to the licensed gun of Jagjit Singh.            In our view, both  the  appellants were rightly found guilty by both            the Courts.              The  evidence            against them is  conclusive.            That there  was enmity between the accused and Shamsher Singh was admitted.   Amar Singh was the deceaseds associate and            had the  misfortune not only to have been present when  Shamsher Singh  was  killed but also to have made himself visible  to the  accused then.  Both the eye witnesses accounts of            the deceaseds  involvement            are  not only consistent  but  were corroborated by the material evidence.            The site plan proved by  PW 2 showed that the truck was parked towards the  right rear  end  of the car in which the deceased was            travelling. If  the deceased were firing indiscriminately, it is  hardly likely            that the appellants would park the truck next to the car.  The photographs which were tendered as Exts P9 and P10 show the position of Shamsher Singhs body next to the truck on  the road on the left of the truck and Amar Singhs  body at the rear of the truck.  The blood stained earth which was collected  from            the spot where the deceaseds  bodies  were found supports the position that the deceased were killed at the spot next to the truck and not near Swaran Singhs house as  claimed by the accused.  Both the Trial Court as well as the High Court rightly rejected the story of Swaran Singh to explain the presence at the truck at the scene of the crime. That  Swaran Singh was present at the scene and was carrying a  loaded  double barrel gun and a cartridge belt  has            been admitted  by him.  His defence was that he had not fired any shots  and  that  the deceased in a drunken state  were            the aggressors.   The  appellants allegation that the  deceased were  drunk  does not appear to be borne out by the  medical evidence.  According to the Chemical Examiners report (Ext. PV/ 3) the alcohol concentration found in the viscera of the deceased  (Ext.              Nos.            1,2, and 4) was 74.75            mg/100            mls.

This does not show either that the alcohol had been consumed immediately  prior to the occurrence as was suggested to the eye  witnesses            nor can it be said that the alcohol  content was sufficient to make the deceased inebriated.            It was also correctly  noted by both the Courts below that if indeed the deceased  had  been shooting indiscriminately as alleged  by him,  there  would  have been some pellets on the  walls  of Swaran            Singhs house.  The High Court also noticed that            it was  not  even            suggested  to any of the  witnesses  in            the prosecution  that  there were pellets or pellet            marks            near Swaran            Singhs            house.            The  evidence            of  PW1  and            the post-mortem  reports was to the effect that the single wound on the right side of the chest of Shamsher Singh and several wounds            on Amar Singh were blackened.  Blackening is caused by  smoke deposit.  Smoke particles are light.            They do            not travel            far.  Therefore, smoke deposit, i.e., blackening  is limited to a small range.  See Forensic Science in Criminal Investigation & Trials (3rd Edn.) P.  280;  Fisher, Svensson, and  Wendels  Techniques of Crime Scene Investigation  (4th Edn.   p.296). The fact that the firing was at close  range supports the evidence of the eye witnesses and runs contrary to  the defense account of the incident.  The situs of the wounds found by PW 1 on the deceased also bear out the eye witnesses  testimony  of  the incident.            As far as  Swaran Singh  is  concerned, the gun which was handed over  by him bearing No.   8395/5391/A-7 (Ext.22) to PW 6 was tested  by the Forensic Science Laboratory at Chandigarh. The report ( Ext.   P-7)  showed that three of the  cartridges  collected from  inside the truck and the site had been fired from the right  barrel of Ext.22 and another cartridge had been fired from  the  left barrel of  the same  gun.   Both  the eye witnesses  said Jagjit was driving the truck.  He  alighted from  the drivers side of the truck viz.  the right of the truck. Amar Singhs body was found shot at close range near the  right rear end of the truck.  The wounds found on Amar Singhs body  by  PW  1 thus  sustain  the  eye witnesses version.   No  doubt, the particular empty  cartridge  cases found  could  not be related to Jagjit Singhs licensed  gun which  had  been  handed over to the police by            his  father, three months after the incident, but there was evidence that the  gun  had  been fired.  The appellants  contention            that because the  eye witnesses account of the  involvement  of Mittar Pal  was  not  accepted by  either  of the  Courts, therefore  their  evidence was suspect, is  a  non-sequitur.

Merely because one portion of the evidence of PW 3 and PW 4 is  disbelieved does not mean that the Courts were bound  to reject all  of it.  Besides Mittar Pals acquittal  by the Trial  Court is unsupported by any reason.  The High  Court, in  its turn,            held  that  it was  unlikely  that  the            eye witnesses would have remained on the spot after Jagjit Singh had  shot Amar Singh killing him instantaneously.  The            High Court  also  said that their version that Mittar Pal  Singh alias  Lovely accused had snatched the gun of his father and fired  two  gun            shots            is   not  believable  being   highly un-natural  because if Jagjit Singh accused was bold  enough to  fire  first            gun  shot hitting the neck  of            Amar  Singh deceased,  then            there was no question of his not  repeating gun  shots, especially when the medical evidence shows            that the injuries on the dead body of Amar Singh were caused with gun shot from close range.  Thus, it cannot be said that the medical            evidence  corroborates the participation of  Mittar Pal  Singh alias Lovely accused in this occurrence.  It            is not necessary for us to question this reasoning as no appeal has been preferred against Mittar Pals acquittal but in the case  of the accused the medical evidence corroborates their participation.            Regarding the time of the occurrence, it may be  that PW 1 has stated in cross-examination that both            the deceased  could have met their death at about 4.00 P.M.              on 24.4.86, but this does not by itself establish the fact that the  deceased were killed at 4.00 P.M.            The evidence of PW 1 in-chief  was that the deaths could have been caused  within 24  hours  prior  to  the  post-mortems.   Therefore,  PW1s evidence  is  equally  consistent  with              the  case  of            the prosecution  that  the incident took place at 7.45 P.M.              PW 1s  evidence  regarding Satish Kumar in fact  supports            the prosecutions  case.  Satish Kumar was examined on 24.4.1986 at  11.20 P.M.            In cross-examination he said that the injury had  been caused  within six hours.  This statement  means that the injury did not take place at 4.00 P.M.            Besides, if Satish            Kumar  had been injured at 4.00 P.M., as claimed  by the accused, there is no explanation why he should have been admitted  to the hospital at 9.20 P.M.            more than five hours later  and  that too by the police.  The chronology  of            the series            of occurrences shows that the crime had taken  place at  about  7.30 p.m. as claimed by  the  prosecution and testified  to  by  the eye witnesses.  That  being  so, the lodgment  of  the  F.I.R by PW 3 promptly  with a  detailed account of the incident, renders improbable the possibility of  the fabrication of the involvement of  the appellants. Given  these unambiguous confirmatory circumstances, we see no reason to interfere with the reliance placed by both the Courts on PWs 3 and 4s direct evidence of the part  placed by  the appellants in the perpetration of the crime.  On the other  hand, the appellants version of the incident has not been  substantiated at all.  The fact that the deceased had gone  to make inquiries about the employment of purbias from Dilbagh Singh is peripheral to the case and the credibility of  the eye witnesses account of the incident can in no way be  affected by Dilbagh Singh not being produced in  support of  the prosecution case.  In any event, as recorded by the Trial  Court, Dilbagh Singh PW had been given up as he  was won over by the accused.  For similar reasons, the P.P. for the  State could not produced Dilbagh Singhs mother.  The appellants  also  contended  that the evidence of PW  5 was discrepant.   The  appellants have emphasised that PW 5  had incorrectly  stated  that he had not gone out of the  police station prior  to  recording  of  the FIR.   He  had also incorrectly  stated that he had found Satish at the scene of the  crime  at 11.45  p.m.  and sent him  to  the  hospital whereas Satish had  in  fact already been  taken  to the hospital  by some other police personnel at 9.20 p.m. None of  the discrepancies are sufficient to discard the case  of the  prosecution  or  to throw doubt on the  eye  witnesses testimony.   Furthermore  the  trial commenced            about  three years  after  the incident.  In the meanwhile PW 5 had            been transferred  in April 1987 from Samrala.  PW 5 was called to give  evidence            in  1990.  In the circumstances            it  is            not unlikely  that            he  would not remember the  details  of            the investigation.            These are the adverse effects of a  delayed trial.            This  aspect  has been dealt with at length  by  my Learned            Brother  and I am in respectful agreement with            his opinions  on  the matter.  Having found no lacunae  in            the reasoning  of  the  High Court either on facts            or  law,  we dismiss the appeals.  If the accused are on bail, they shall be  taken into custody forthwith to serve out the  sentences imposed on them.

 

 

 

Supreme Court:- Trail Court should be of the opinion that the offence is committed u/s 195 of IPC to launch prosecution u/s 340.

February 20, 2013 Leave a comment

PRITISH Vs. STATE OF MAHARASHTRA & ORS.

Coram

K.T. THOMAS, S.N. PHUKAN, Y.K. SABHARWAL

Citation

2002 AIR 236, 2001( 5 )Suppl.SCR 302, 2002( 1 )SCC 253, 2001( 8 )SCALE235 , 2001( 9 )JT 574

Head Notes

Head Notes not found

Subject

Subject not found

Judgment

CASE NO.: Appeal (crl.) 1188 of 2001

PETITIONER: PRITISH

Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT: 21/11/2001

BENCH: K.T. Thomas, S.N. Phukan & Y.K. Sabharwal

JUDGMENT: THOMAS, J.

Leave granted. Appellant who scored substantially in a land acquisition proceeding is now facing rough weather as he is arraigned in a criminal proceeding on account of certain documents he produced as evidence. The court which granted a quantum leap in awarding compensation to the land owners later found that they had used forged documents for inveigling such a bumper gain as compensation and hence the court ordered some of the claimants to face prosecution proceedings in a criminal court. The only point now convassed by the appellant is that the court should have heard the appellant before ordering such prosecution. The said plea raised by the appellant before the High Court was repelled as per the impugned judgment. Hence this appeal by special leave. An area of 3.9 acres of land was acquired by the State Government for construction of a canal under Arunwati Project in 1985. The land acquisition officer awarded a total of Rs.24,000/- as compensation for the entire land. As the owners were not satisfied with the said award they moved for a reference under Section 18 of the Land Acquisition Act. The reference court (which is a civil court) on the basis of evidence adduced by the parties made a big leap by enhancing the compensation amount from Rupees twenty four thousand to Rupees ten lakhs thirty thousand, besides the other benefits such as solatium, additional compensation and interest as provided in Section 23 of the Land Acquisition Act. The reference court passed the award granting the said enhancement on 23.4.1993. Appellant was one of the beneficiaries of the said award and the enhancement was made on the basis of the evidence adduced by the parties including the appellant. Though the claimants expressed dissatisfaction even with such enhancement and moved the High Court for further enhancement the High Court dismissed the appeal filed by them in 1993.

In 1995, some persons of the locality brought to the notice of the reference court that the claimants had wangled a whopping enhancement after playing chicanery on the court by producing forged copies of sale deeds for supporting their claim for enhancement. The documents marked by the reference court as Exts.31, 32 and 35 were fabricated copies of sale deeds in which the extent of the lands sold had been shown as far less than the real area transferred as per the instruments of sale, according to those persons. The reference court conducted an inquiry on being told by the aforesaid applicants that the above mentioned documents are forged. The court got down the relevant records from the Sub-Registry for the purpose of examining the correctness of the aforesaid three documents and found that they were fabricated copies of the original sale deeds. The said court further found that appellant and one Rajkumar Anandrao Gulhane have committed offences affecting the administration of justice by using forged documents. The court then passed the following order: Therefore, it is expedient in the ends of justice on my part to file the complaint in writing against them before Judicial Magistrate of First Class having jurisdiction to take appropriate and proper criminal action against them, as it appears that they have not only cheated the public at large and government but have misguided or tried to misguide my learned predecessor by preparing and producing false documentary evidence as well as by giving false oral evidence just to have a wrongful gain. The persons who moved the court for taking action under Section 340 of the Code of Criminal Procedure (for short the Code) by bringing the above facts to the notice of the reference court were not satisfied as they felt that the other persons who also secured the advantage of such enhancement were also to be proceeded against. So they filed an appeal before the District Court. On 12.8.1996 the District Judge concerned ordered that the complaint shall be filed against five more persons besides the appellant and Rajkumar Ananarao Gulhane. We are told that those five persons moved the High Court and got themselves extricated from prosecution proceedings. Appellant then filed an appeal before the High Court purportedly under Section 341 of the Code in challenge of the order of the reference court which directed the filing of a criminal complaint against him. The main contention he raised before the High Court was that the reference court has overlooked the basic principles of natural justice and proceeded to make an inquiry without giving an opportunity to him to be heard in the matter and hence great prejudice had been caused to him as he had been deprived of the opportunity to be heard. Learned single judge of the High Court while repelling the above contention observed thus: The procedure does not contemplate that before initiating preliminary enquiry the court ought to give notice to the person against whom it may make a complaint on completion of the preliminary enquiry and, obviously so because what is contemplated is only a preliminary enquiry, and if the court chooses to take action against the said person, it does not mean that he will not have full and adequate opportunity under Section 340(1)(b) of the Criminal Procedure Code. Therefore, the contention of the learned counsel for the appellants, that the court, before initiating any enquiry into the matter, ought to have given notice to the appellants and that the appellants have a right to be heard, cannot be accepted. Shri V.A. Mohta, learned senior counsel for the appellant contended that the basic principle of natural justice is violated when the reference court ordered prosecution against the appellant without affording him an opportunity of being heard. In elaborating the said point learned senior counsel submitted that the scheme of Sections 340 to 344 of the Code contains an in-built safety for the persons sought to be proceeded against, by obliging the court to afford an opportunity of being heard to them. Chapter XXVI of the Code contains provisions as to offences affecting the administration of justice. Among the 12 sections subsumed therein we need consider only three. Section 340 consists of four sub-sections of which only the first sub-section is relevant for the purpose of this case. Hence the said sub-section is extracted below: 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 having 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. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. Inquiry is defined in Section 2(g) of the Code as every inquiry, other than a trial, conducted under this Code by a magistrate or court. It refers to the pre trial inquiry, and in the present context it means the inquiry to be conducted by the magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in writing to the magistrate of first class concerned. As the offences involved are all falling within the purview of warrant case [as defined in Sec.2 (x)] of the Code the magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code. Section 238 of the Code says that the magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to the accused. Section 239 enjoins on the magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks necessary. Then the magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the magistrate has to proceed to conduct the trial. Until then the inquiry continues before the magistrate. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged. The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused. In any event appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not. 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 and anr. vs. State of Madras and ors. (AIR 1954 SC 397) 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. Learned senior counsel cited the decision of a single Judge of the High Court of Andhra Pradesh in Nimmakayala Audi Narrayanamma vs. State of Andhra Pradesh (AIR 1970 A.P. 119) in which learned judge observed that it is just and proper that the court issues a show cause notice to the would be accused as to why they should not be prosecuted. This was said while interpreting the scope of Section 476 of the old Code of Criminal Procedure (which corresponds with Section 340 of the present Code). The following is the main reasoning of the learned single Judge: The proceedings under Section 476 Criminal P.C. being judicial and criminal in nature, the interpretation that should be placed in construing the section should be just, fair, proper and equitable and must be in accordance with the principles of natural justice. By adopting such interpretation and procedure, the aggrieved party would be afforded with an adequate opportunity to show and satisfy the court that it was not in the interests of justice, to launch the prosecution and thereby avoid further proceeding. That apart, the appellate court also would be in a position to appreciate the reasons assigned in each case and would have the advantage of coming to its own conclusion without any difficulty about the justification or otherwise of launching the prosecution in a particular case. When once the prosecution had been launched, the accused will not be having an opportunity thereafter to raise the question of expediency in the interests of justice to launch the very prosecution itself. The case thereafter will have to be gone into on the merits. We are unable to agree with the said view of the learned single Judge as the same was taken under the impression that a decision to order inquiry into the offence itself would prima facie amount to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry. {vide M. Muthuswamy vs. Special Police Establishment (AIR 1985 Criminal Law Journal 420)}. We therefore agree with the impugned judgment that appellant cannot complain that he was not heard during the preliminary inquiry conducted by the reference court under Section 340 of the Code. In the result we dismiss this appeal.

J [ K.T. Thomas ] J [ S.N. Phukan ] J [ Y.K. Sabharwal ]

November 21, 2001.

 

 

Delhi HC:- Definite opinion needs to be formed by Court to launch the prosecution in Interest of Justice u/s 340 CrPC Perjury.

February 20, 2013 Leave a comment

IN THE HIGH COURT OF DELHI AT NEW DELHI

10

CRL.M.C. 1130/2008 & CRL.M.A.4231/2008

JAGDISH PRASAD ….. Petitioner Through: Mr.R.B. Pandey, Advocate.

versus

STATE & ORS. ….. Respondents Through: Mr.Jaideep Malik,APP.

Mr. R.P. Kaushik, Advocate for

Respondent No.2.

CORAM:

HON’BLE DR. JUSTICE S. MURALIDHAR

1. Whether Reporters of local papers may be

allowed to see the judgment? No

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in Digest? Yes ORDER

23.03.2009

1. This petition under Section 482 of the Code of the Criminal Procedure (CrPC) is directed against an order

dated 22nd February 2008 passed by the learned Additional Sessions Judge (ASJ) Delhi allowing Crl.A.No.18

of 2005 filed by the Respondent No.2 against an order dated 9 th September 2005 passed by the learned

Metropolitan Magistrate (MM) Delhi in an application filed by the Petitioner herein under Section 340 CrPC.

By the said order dated 9th September 2005, the learned MM came to the prima facie conclusion that

Respondent No.2 had committed an offence under Section 193 of the Indian Penal Code (IPC) and ought to be

prosecuted for the same. The learned ASJ has, in the Crl.M.C.1130/08 Page 1 of 11 impugned order, set aside

the order dated 9 th September 2005 on the ground that the learned MM had not determined if it was

expedient in the interests of justice that an inquiry should be held for ascertaining whether the Respondent

No.2 should be prosecuted for the offence under Section 193 IPC.

2. The brief facts leading to the filing of the present petition are that Respondent No.2 wife filed an

application under Section 125 CrPC seeking maintenance from the Petitioner husband for herself and the

minor female child. In her petition she stated in Para 15 that she was “not employed anywhere and is unable to

maintain herself and her said minor girl Shruti and they presently are survived on the mercy of parents of the

petitioner No.1 (wife) who themselves have limited resources to maintain the large family.”

3. According to the Petitioner in the month of June 2001, the Respondent No.2 wife had joined Tirath Ram

Shah Charitable Hospital, Rajpur Road, Delhi as a `Receptionist’ and was receiving salary from the said

hospital. On this basis, Petitioner had earlier filed an application under Section 340 CrPC which, according to

Respondent No.2, was dismissed on 16th September, 2003.4. On 12th February 2004, Respondent No.2 was examined in chief in the maintenance petition. She stated: “I was not working anywhere after my marriage, I was not working till today anywhere from the date when I was kicked out from my matrimonial home.” She was cross examined on 7th April 2004 and was asked whether she was doing any job during the pendency of the petition. She replied that “since after coming to my parental home, I am not doing any job. I have one bank account in Co- operative Bank. It is incorrect to suggest that after coming to my parental home, I have worked with Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi.” In response to another specific question whether she was holding a bank account at Punjab National Bank, Civil Lines she stated as under:

“It is wrong to suggest that I am holding an account which is 427791 in the above said bank i.e., PNB”

5. Consequent upon the above replies in cross exam-ination, the Petitioner filed an application under Section 340 CrPC seeking the prosecution of the Petitioner for committing perjury punishable under Section 193

CrPC.

6. It appears that a reply was filed to the said petition by Respondent No.2. Even evidence appears to have been led by examining the officials from both the Punjab National Bank as well as the Tirath Ram Shah

Charitable Hospital.

7. RW-2 D.S. Bandari, Senior Manager, Punjab National Bank, Civil Lines, Delhi was examined on 28th Septem-ber 2004. He confirmed that Crl.M.C.1130/08 Page 3 of 11 an account had been open by Respondent No.2 with the bank with the addresses “C/o Tirathram Shah Hosp-ital, 2 Battery Lane, Rajpur Road, Delhi -54.”

He stated: “On 20.07.01 Smt. Veena Bhatt opened her

account in Punjab National Bank, Civil Lines, Delhi. The account was introduced by Sh.B.Arora, SF account

No.11908 with the address C/o Tirathram Shah Hospital, 2 Battery Lain(sic Lane), Rajpur Road, Delhi-54 with a initial amount of Rs.500/-. She was allotted account No.427791. Statement of the account since opening of the account till today is exhibited as Ex.RW2/A, Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of account Smt. Veena Bhatt stated her occupation “service” which has been written in point A over Ex.RW2/D.

8. RW-3 Manoj Nair, AAO, Tirath Ram Shah Hospital in his examination in chief stated as under:-

“The authority letter given by Dr.A.K.Dubey, Director is Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram Shah Hospital. She was working as a receptionist on fixed term contract basis. The gross salary of Mrs.Veena was Rs.3,572/- only. Her employ- ment no. was 1225. I identify Mrs. Veena who is present in the court. There was break in service for one day. Smt. Veena Bhatt was working as a receptionist and not as a trainee as per the record. In my hospital no receptionist trainee are engaged. She has not applied for the renewal of her further contract after 10.06.02. I can submit a copy of the application form and record of salary if required. The original is before this hon’ble court. Application for employment form is Ex.RW3/B (four pages) and the copy of salary register for the month of June, 2001 to June, 2002 are collectively Ex.RW3/C (12 pages).”

9. The cross examination only elicited the following clarification by Respondent No.2:-

“It is correct that Smt. Veena had not worked in the hospital as a permanent hospital (sic) or on ad hoc basis or on temporary basis she had worked only on contract basis.

10. The learned MM in the order dated 9th September 2005 came to the following conclusion:-

“I have gone through the record of the present applica-tion as well as the petition under Section 125 Cr.P.C., which is pending in the present court. Smt. Veena may have had a genuine cause for having worked as proved

against her in her case and also admitted by her in the present proceedings. Nevertheless her pressing require- ments for income does not exonerate her from the offence of having given false testimony in the court.

I am, therefore, of the opinion that Smt.Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same.”

11. Aggrieved by the above order, Respondent No.2 filed an appeal in the Court of learned ASJ. Among the

grounds urged in the appeal were that an earlier petition under Section 340 CrPC having been dismissed, a further application ought not to have been entertained by the learned MM. It was further urged that there was

never any intention on the part of Respondent No.2 to commit any offence and that her only intention was to

claim maintenance as per law. It was sought to be urged that in the recording of the answers to the questions

put to Respondent No.2 in her cross examination there were chances of inadvertent mistakes “unless it is in

the language of the appellant/witness i.e. Hindi/ vernacular language .”. It was also urged that the learned MM had, in fact, pronounced a final judgment on the guilt of the Respondent No.2 for the offence under Section193 IPC and, therefore, the order dated 9th September 2005 stood vitiated.

12. In the impugned order dated 22nd February 2008, the learned ASJ has referred to the judgments of the

Supreme Court in Afzal v. State of Haryana and others AIR 1996 SC 2326, Murrari & Company 2002 (2)

SCC 367 and Pritish v. State of Maharashtra and others AIR 2002 SC 236 to hold that it was incumbent on the

learned MM to come to a definite conclusion that it was expedient in the interest of justice that an action should be taken against respondent No.2 under Section 193 IPC. The learned ASJ proceeded to observe as under:- “Mere recording of a finding to the effect that an offence punishable under section 193 of the Penal Code was committed would not answer requirement of section 340 of the Code. When primary question was answered in affirmative then secondary and most effective proposi-tion was to be answered to the effect whether it was expedient in the interest of justice to initiate an action in the matter. No such step was taken by the Trial Court to see that it was expedient in the interest of justice to take such action. In such a situation, order impugned is shrouded with illegality. In cannot be allowed to stand. Consequently, order impugned is set-aside and appeal is granted. Trial Court record be sent back. File be consigned to Record Room.”

13. Learned counsel for the Petitioner makes a two-fold submission. According to him, the learned ASJ, hearing the criminal appeal had to specifically direct the complainant to withdraw the complaint and could not

have passed any other order. Secondly, he submits that a reading of the order dated 9th September 2005 passed by the learned MM shows that, in fact, the learned MM had come to a conclusion about the expediency in the interest of justice for prosecuting Respondent No.2 thus satisfying the requirement of the law under Section 340 14. Learned counsel for the Respondent No.2 urged that there was no illegality in the order of learned ASJ

mandating a full-fledged inquiry prior to the formation of opinion that it was expedient in the interest of justice to prosecute Respondent No.2. He submits that in as much as there was no specific conclusion drawn by the learned MM to that effect, the order dated 9th September 2005 stood vitiated. He also submits that with the learned MM already having concluded on the guilt of Respondent No.2, nothing really remained as far as

the prosecution of Respondent No.2 was concerned. It would be an empty formality.

15. The submissions of both sides have been heard. As regards the first contention, a reference may be made

to Section 341 CrPC which reads as under:-

(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 95, and the superior Court may thereupon, after notice to the parties concerned, direct the with-drawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.”

16. A plain reading of the above provisions would show that an appeal can be filed by either a complainant

seeking to invoke Section 340 CrPC or by a person against whom the Court below has invoked the provision.

In the instant case, the provision was successfully invoked by the Petitioner before the learned MM and it was Respondent No.2 who filed an appeal. While accepting her submission, learned ASJ set aside an order dated 9th September 2005. The effect of this was the withdrawal of a complaint itself. Therefore, there was no

illegality committed by learned ASJ as far as the order that should have been passed under Section 341 CrPC.

The first submission of learned counsel for the Petitioner is accordingly rejected.

17. That brings us to the merits of the case. The only ground on which the learned ASJ appears to have set

aside the order dated 9th September 2005 passed by the learned MM is that a definite opinion was not formed

by the learned MM that it was expedient in the interest of justice to prosecute Respondent No.2 for the offence

under Section 193 IPC. The learned ASJ unfortunately does not appear to have referred to the record of the

detailed inquiry conducted by learned MM. This involved not only considering the reply filed by Respondent No.2 but also the evidence recorded of RW-2 i.e. the Senior Manager D.S.Bandari of the PNB and RW-3, the official of the `Tirath Ram Shah Hospital Manoj Nair. In the light of the evidence of these witnesses, the relevant portion of which have been extracted hereinbefore, there was no question of learned MM having to hold any further inquiry in order to deter-mine whether Respondent No.2 ought to be prosecuted or not.

18. In the considered view of this Court, when the learned MM in the order dated 9th September 2005

observed “I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC

and she ought to be prosecuted for the same”, the requirement of Section 340 CrPC as explained by the

Supreme Court stood satisfied. In other words, the opinion formed by learned MM was obviously only a

tentative or a prima facie one. This is plain from the expression “ought to be prosecuted”. Further, the same

expression “ought to be prosecuted” also indicates the formation of an opinion that it was expedient in the

interest of justice that Respondent No.2 should be prosecuted. Therefore, both the requirements of law as

explained by the Supreme Court in relation to Section 340 CrPC stood completely satisfied by the order dated

9th September 2005 passed by the learned MM. This Court is, therefore, unable to agree with the conclusion

reached by learned ASJ to the contrary.

19. The order dated 22nd February 2008 passed by the learned ASJ is accordingly set aside. The order dated

9th September 2005 passed by the learned MM and the consequent application presented to the learned

Additional Chief Metropolitan Magistrate for prosecuting Respondent No.2 are revived. The further steps will proceed in accordance with law.

 

20. The petition is accordingly allowed with no order as to costs. The pending application is also disposed of.

S. MURALIDHAR, J.

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