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CALCUTTA HC:- Coming with unclean hands – disqualifies litigant from obtaining any relief

September 24, 2014 Leave a comment

“….the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

Pls refer the entire Judgment below

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction Appellate Side

PRESENT:THE HON’BLE MR JUSTICE KALIDAS MUKHERJEE

CRR NO. 999 OF 2006

Md. Ashiruddin & Anr.
Vs.
State of West Begal & Anr.

For the Petitioner :Mr. Milon Mukherjee, Sr. Adv. Mr. Lutful Haque,Ms. Ameena Kabir

For the State : Mrs. Krishna Ghosh

HEARD ON: 18.03.2008.

JUDGMENT ON:25.03.2008

KALIDAS MUKHERJEE, J.:

1. This is an application under Section 482 read with Section 300 Cr.P.C. praying for quashing of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat, District – Nadia.

2. The petitioner No. 1 is a retired Sub-Inspector of Police and the petitioner No. 2 is a Constable. The first wife of petitioner No. 1 died and thereafter he again married O.P. No. 2 Rojina Bibi on 25.06.2004 according to Muslim Shariat Laws and both of them were leading conjugal life in village Murcha, P.S. Khargram, District – Murshidabad. O.P. No. 2 was a widow at the time of her marriage with petitioner No. 1 and had a son and two daughters out of her previous marriage. The petitioner No. 1 used to reside in Krishnanagar where he was posted and the O.P. No. 2 was residing in village Morcha. There was difference of opinion between the spouses. O.P. No. 2 filed a case against the petitioner No. 1 under Section 498A/325 I.P.C. being Kotwali P.S. Case No. 95/2005 dated 06.4.2005. Charge sheet was issued on 15.4.2005 being C.S. No. 80/2005 under Section 498A I.P.C. The O.P. No. 2 complained of mental and physical torture. On 11.4.2005 O.P. No. 2 made an affidavit before the learned Sub-Divisional Judicial Magistrate, Krishnanagar stating that she had no complaint against her husband whatsoever. In the affidavit she stated that when she went to Krishnanagar, a person took her signatures on some blank sheets and taking advantage of that filed a case against her husband. She also stated that her husband never committed torture upon her physically or mentally and that they had been leading a happy conjugal life. On 9th June, 2005 the petitioner No. 1 was discharged by the learned S.D.J.M., Krishnanagar on the basis of affidavit made on 11.4.2005. Thereafter the petitioner No. 1 divorced to the O.P. No. 2 on 04.8.2005 and communicated the same by registered post with A.D. dated 13.8.2005 and 18.8.2005, but, the registered letter dated 18.8.2005 came back to the petitioner as ‘refused’ by the O.P. No. 2. O.P. No. 2 filed a case in the Court of Chief Judicial Magistrate, Krishnanagar on 29.8.2005 under Section 498A/34 I.P.C. against the petitioners, but, no effective step was taken thereof. The O.P. No. 2 also filed a case in the Court of Additional Chief Judicial Magistrate, Krishnanagar against the petitioner No. 1 under Section 125 Cr.P.C. being case No. 481 of 2004. The O.P. No. 2 also filed another case under Section 498A/34 I.P.C. (G.R. No. 1343 of 2005) Hnaskhali P.S. Case No. 281 dated 06.12.2005, in the Court of Additional Chief Judicial Magistrate, Ranaghat. The allegations raised against the petitioners are false and concocted. The continuance of proceeding under Section 498A/34 I.P.C. in Hanskhali P.S. Case NO. 281 dated 06.12.2005 is unwarranted and will be the abuse of the process of the Court. In view of the discharge of the petitioner No. 1 from earlier case being Kotwali P.S. Case No. 95 of 2005, the instant case being Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. cannot proceed and the same is not maintainable. Under the circumstances, the petitioner has filed the instant application praying for quashing of the proceeding under Section 482 Cr.P.C.

3. Mr. Mukherjee appearing on behalf of the petitioners submits that the earlier case ended in discharge on 09.6.2005 passed by learned S.D.J.M., Krishnanagar in G.R. Case No. 408 of 2005, Kotwali P.S. Case No. 95 of 2005. Mr. Mukherjee submits that the divorce was effected on 04.8.2005 when the factum of divorce was communicated to O.P. No. 2 herein. Mr. Mukherjee contends that same allegation as made in the earlier complaint was raised against the petitioner No. 1 herein in the subsequent petition of complaint which was sent to P.S. under Section 156(3) Cr.P.C. on 06.12.2005 bearing Hanskhali P.S. Case No. 281 dated 06.12.2005. Mr. Mukherjee contends that there is no allegation under Section 406 I.P.C. in the instant case and, moreover, there is suppression of material facts in the subsequent complaint being Hanskhali P.S. Case No. 281 date 06.12.2005. Mr. Mukherjee contends that when the petitioner No. 1 was discharged in the earlier case which ended in his discharge on 09.6.2005, the subsequent case on the same allegations bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 is not maintainable. Regarding the suppression of material facts viz. discharge of the petitioner No. 1 in the earlier case, Mr. Mukherjee has referred to and relied on the decisions reported in 2005 SCC (Cri)1322 [MCD Vs. State of Delhi and another] para 21 and (2004)7 SCC 166 [S.J.S. Business Enterprises (P) Ltd. V. State of Bihar and others] para 13.

4. Mrs. Ghosh appearing on behalf of the State submits that the petitioner No. 1 herein was the Sub-Inspector of Police and regarding the alleged torture meted out to O.P. No. 2, there are medical reports and statements of the witnesses recorded under Section 161 Cr.P.C. It is contended that it is not clear whether there was divorce or not by way of Talaknama. As regards the allegation of torture under Section 498A I.P.C. on the same facts in the subsequent case, Mrs. Ghosh contends that the manner of alleged torture upon O.P. No. 2 in the second case was different and there is added period of alleged torture. Mrs. Ghosh contends that O.P. No. 2 was assaulted by the petitioner No. 1 as per allegation and in view of the medical reports and the statements of the witnesses recorded under Section 161 Cr.P.C., there is no ground to quash the proceedings pending in the learned Court below. Mrs. Ghosh contends that the petitioner No. 1 herein can raise such question in the Trial Court at the appropriate stage, but, not in the instant application under Section 482 Cr.P.C.

5. From the F.I.R. of Kotwali P.S. Case No. 95 of 2005 dated 06.4.2005 G.R. No. 408 of 2005 it appears that the occurrence of the alleged offence was after the marriage till the date of lodging the F.I.R. i.e. 06.4.2005. It further appears that the said case bearing No. 408 of 2005 ended in the discharge of the accused under Section 245 Cr.P.C. The learned Magistrate considered the affidavit filed by the defacto-complainant in the said case wherein it was stated that she was leading her conjugal life happily with her husband. On hearing the defacto-complaint and considering the contentions raised in the affidavit, the learned Magistrate recorded the order of discharge under Section 245 Cr.P.C. Subsequently, the instant case bearing Hanskhali P.S. Case No. 281 dated 06.12.2005 was started. The petition of complaint was sent to the P.S. under Section 156(3) Cr.P.C. and the F.I.R. was registered bearing No. 281 dated 06.12.2005. In the said petition of complaint the occurrence of the alleged offence was after marriage extending up to 24.8.2005. It is, therefore, clear that the period of alleged torture as per the subsequent complaint also includes the period of torture as raised in the earlier complaint which ended in discharge of the accused. By filing the affidavit stating that she was living happily with her husband which enabled the Court to record order of discharge, the defacto complainant put an end to the allegation of torture as raised in the earlier petition of complaint and, as such, the same allegation over the same period cannot be reopened.

6. Secondly, in the second petition of complaint there is no whisper about the contention raised in the earlier complaint and the order of discharge made therein. Mr. Mukherjee in this connection has referred to the decision reported in 2005 SCC (Cri) 1322 para 21 (Supra). The observation of the Hon’ble Apex Court made in para 21 of the aforesaid decision is quoted hereunder:-

“This apart, the respondent did not also disclose the fact in the criminal revision filed before the High Court that he has also been convicted in another Criminal Case No. 202 of 1997 by the Court of Metropolitan Magistrate, Patiala House, New Delhi. Thus, the contesting respondent has come to the High Court with unclean hands and withholds a vital document in order to gain advantage on the other side. In our opinion, he would be guilty of playing fraud on the Court as well as on the opposite party. A person whose case is based on falsehood can be summarily thrown out at any stage of the litigation. We have no hesitation to say that a person whose case is based on falsehood has no right to

approach the Court and he can be summarily thrown out at any stage of the litigation…………”

The observation of the Hon’ble Apex Court made in the decision reported in (2004)7 SCC 166 para 13 (Supra) is quoted hereunder:- “As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the Courts to deter a litigant from abusing the process of Court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case…………”

7. Since in the subsequent petition of complaint there is no whisper about the earlier petition of complaint followed by the order of discharge of the accused persons, such non-disclosure amounts to suppression of material facts, inasmuch as, had it not been suppressed, it would have an effect on the merits of the case. Following the ratio of the aforesaid decisions, I find that it is a fit case for quashing of the proceedings in the exercise of the jurisdiction under Section 482 Cr.P.C. The application under Section 482 read with Section 300 Cr.P.C. is allowed. Accordingly, the proceedings of Hanskhali P.S. Case No. 281 dated 06.12.2005 under Section 498A/34 I.P.C. pending in the Court of learned Additional Chief Judicial Magistrate, Ranaghat stand quashed.

8. Let a copy of this order be sent to the learned Court below immediately.

9. Urgent Xerox certified copy of this order, if applied for, be handed over to the parties as early as possible.

( Kalidas Mukherjee, J. )

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Bombay HC- Possibility of false implication by Wife cannot be ruled out, hence Anticipatory Bail Granted.

Another order from Justice. M. L. Tahilyani on false case by wife….

“I have gone through the First Information Report and police papers, particularly the spot panchanama.   Spot  panchanama does not indicate that the signs of kerosene were found on the spot.  Nothing incriminating was seized from the spot   by   the   police.     This   indicates   that   probably   no   such incident had occurred.

5. I have also gone through the Medical Report.  The Medical   Officer   has   not   stated   that   the   clothes   of   the  complainant were smelling kerosene when she was examined. There was no serious injury on her body.  Possibility of false
implication cannot be ruled out.””

Continue to read full order

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
CRIMINAL APPLICATION (ABA) NO.269 OF 2014

(Charansingh Jaising Rathod and others ..vs.. The State of Maharashtra, through PSO, PS Digras,
District Yavatmal)
­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
Office Notes, Office Memoranda of Coram,

Court’s or Judge’s orders appearances, Court’s orders of directions and Registrar’s orders
­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­ ­
Shri J.B. Kasat, Advocate for the applicants,
Mrs. Rashi Deshpande, Addl.P.P. for the non­applicant/State.

CORAM :  M.L.TAHALIYANI, J.

DATED  :  16­06­2014

Heard   learned   Counsel   Shri   J.B.   Kasat   for   the  applicants   and   learned   Additional   Public   Prosecutor   Mrs.
Rashi Deshpande for the non­applicant/State.

2. The   complainant   was   married   to   one   Manik Charansingh   Rathod   on   11­12­2013.     It   was   intercaste  marriage.  It appears that the family members of Manik were against the marriage.   It further appears that there was a
dispute in the family and therefore, a criminal case for the offence punishable under Section 498­A read with Section 34
of the Indian Penal Code was lodged by the complainant. Thereafter the complainant was staying on rent in the house
of Shri Shahade at Yavatmal along with her mother.

3. The incident  had occurred on 05­5­2014.    The complainant was going to the house of Postman at the time of  incident.     It   is   alleged   that   the   applicants   had   poured kerosene on her while she was proceeding to the house of postman.   She had lodged report at Police Station for the offences punishable under Sections 285 and 323 read with Section 34 of the Indian Penal Code.  It appears that later on Section 307 of the Indian Penal Code has also been added.

4. I have gone through the First Information Report and police papers, particularly the spot panchanama.   Spot  panchanama does not indicate that the signs of kerosene were found on the spot.  Nothing incriminating was seized from the
spot   by   the   police.     This   indicates   that   probably   no   such incident had occurred.

5. I have also gone through the Medical Report.  The Medical   Officer   has   not   stated   that   the   clothes   of   the  complainant were smelling kerosene when she was examined. There was no serious injury on her body.  Possibility of false
implication cannot be ruled out.  Hence, I pass the following order.
The applicants be released on bail in the sum of Rs.10,000/­   (rupees   ten   thousand)   each   with   one   solvent  surety in the like amount for each of them, in the event of their arrest in First Information Report No. of 156/2014 of
Digras   Police   Station,   District   Yavatmal,   for   the   offences punishable under Section 285, 323, 354­A and 307 read with
Section 34 of the Indian Penal Code.

The   applicants   shall   attend   the   office   of   the  Investigating   Officer   as   and   when   required   by   the  Investigating Officer till the investigation is completed.
The application stands disposed of accordingly.

JUDGE
pma

False rape charge lands woman in prison for 4 years that too in India…

September 3, 2013 Leave a comment

TOI:- http://bit.ly/1ag62Ve

A woman has been sentenced to four years in jail for levelling false allegations of rape against a man, who later committed suicide as he could not bear the stigma of spending 72 days in jail for a crime he did not commit.

Last December when the country was witnessing unprecedented protests against Delhi gangrape incident, 35-year-old Chanchal Rathore had accused her 53-year-old landlord, Roopkishore Agrawal, of raping her. However, during the trial, Chanchal admitted that she was not raped.

According to her, she had a quarrel with Agrawal when he had come to collect rent and the money her husband had taken as loan from him. Additional Sessions Judge Savita Dubey, who was hearing the rape case, later ordered that Chanchal be tried for giving a false statement.

The judge even appeared as a witness in the court of Additional Sessions Judge Indira Singh, who sentenced Chanchal to four years in jail under Section 211b of the IPC (making false charge of offence with an intent to injure). She has also been slapped a fine of Rs 10,000, non-payment of which will fetch another six months jail term for her.

Chanchal, who claimed to work for an NGO, was also sentenced to six months in jail under Section 182 (giving false information with an intent to cause public servant to use his lawful power to the injury of another person). Both sentences will run concurrently.

Chanchal is also being separately tried for abetment to suicide, punishable with a seven-year jail term.

Chanchal’s husband Sunil, who took the money from the landlord to buy a Tata Magic vehicle, is also an accused in this case, said Additional Public Prosecutor Hemant Mungi.

Agrawal was found dead in his home on March 17, nine days after he was released on bail. In his suicide note, he had blamed Chanchal for his ordeal and his decision to take kill himself.

Delhi HC- Suppression of Facts. Wife guilty of contempt,maintenance dismissed with cost.

“The conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.”

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: January 07, 2010

Date of Order: January 25, 2010

+ Cont. Cas(C) 482 of 2008

% 25.01.2010

Gurbinder Singh …Petitioner Through: Mr. V.M. Issar, Advocates

Versus

Manjit Kaur …Respondents Through: Mr. Anish Dhingra, Advocate along with respondent in person.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

2. To be referred to the reporter or not?

3. Whether judgment should be reported in Digest?

JUDGMENT

1. The petitioner has preferred this contempt petition against respondent alleging violation of an undertaking given to the Court of Additional District Judge, Jallandhar on 8th September 2000.

2. The petitioner and respondent are husband and wife. The petitioner was in the Army and the wife was working as a teacher in S.D. Model School, Jalandhar Cantt. The divorce and various other proceedings were going on between the parties. The parties with the intervention of their counsels entered into a settlement and this settlement was recorded by the Court. In that settlement, the respondent (wife) agreed that she will not initiate any type of action against petitioner or against children of the parties or against the parents of the petitioner and other relatives of the petitioner (the children were at that time living with the petitioner) before the Court of law or before any other authority and she would not do anything which would affect the character, status or reputation of the petitioner. The petitioner also gave a similar undertaking that he would not disturb respondent in any manner and he Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 1 Of 3 would not institute any action against her either before the Court of law or before any authority and he will not try to castigate honour or character or reputation in any manner. Thereafter, before this Court in April’05, she (respondent) again filed an affidavit that she would abide by the undertaking given to the learned ADJ on 8th September 2000 and she would not harass or humiliate the petitioner in future and will not create any cause of action afresh. This undertaking was given by way of an affidavit. Thereafter, the respondent herein filed an application under Section 125 Cr.P.C. before the Jallandhar Court in August’ 04 claiming maintenance from the petitioner on the ground that the petitioner had neglected to maintain her and she had no source of income. There is no doubt that the respondent had a right to claim maintenance from the petitioner, if she was not able to maintain herself. A perusal of the ex parte order obtained by her from the Court of Jallandhar shows that she concealed all material facts from the Court at Jallandhar. She did not disclose that she was working as a teacher in a school at Jallandhar and that there was an agreement between the parties arrived before learned ADJ, Delhi and that she had also filed an affidavit in the High Court that she would not unnecessarily harass the husband. Where a person after concealing the material facts about her own employment and about the undertaking given to the Court, files an application for maintenance just to harass the opposite side, after giving an undertaking to the Court that she would not harass the petitioner (husband), I consider this amounts to violation of undertaking given by her. The respondent appeared in person today in the Court and admitted that at the time she filed the petition in the Jallandhar Court, she was gainfully employed as a teacher and she continued to remain in employment till 2008 i.e. even after passing of the order under Section 125 of Cr.P.C. A perusal of the ex parte order passed by learned JM would show that the respondent had concealed from the JM about her own employment, her salary from the school and her assets and contended that the respondent was drawing a pension of Rs.10,000/- per month and his income from other sources was Rs.20,000/- per month and she obtained an order of grant of maintenance @ Rs.3,000/- per month from the date of application. She did not disclose to this Court when she filed her affidavit in this Court in April, 2005 that Cont.Cas(C) 482/2008 Gurbinder Singh v. Manjit Kaur Page 2 Of 3 she had filed a petition at Jallandhar Court which was going on ex parte or that she had already preferred a petition under Section 125 of Cr.P.C which was pending.

3. I consider that the conduct of the wife (respondent herein) of not disclosing to this Court about a petition being pursued by her and her conduct of concealing the material information from the Court of Judicial Magistrate, Jallandhar obtaining an ex parte order was contemptuous and violation of an undertaking given by her.

4. I, therefore, hold the respondent guilty of contempt and a fine of Rs.10,000/- is imposed on her.However, after her retirement, if she seeks maintenance for herself after disclosing to the Court concerned about her pension and other income and properties, which she holds in Delhi and other places, she would be free to make a petition regarding maintenance before the Court of competent jurisdiction.

5. With above order, the petition stands disposed of.

January 25, 2010 SHIV NARAYAN DHINGRA J. rd

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.

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To,

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.

 

 

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