Applicability of section 340 of CrPC, and 194 of IPC etc

A case of perjury under CrPC 340 where even though some witnesses had given contradictory statements in civil and criminal cases between same parties, a perjury case under CrPC 340 was not allowed by high court, due mainly to technicalities about applicability of CrPC 340 to facts of the case.

You can read the important points made bold in the full judgment below:

CRM No.23818-M of 2009 1    IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CRM No.23818-M of 2009

Date of Decision: 4.09.2009

Smt.Sanjay Lata & Anr. …Petitioners  Vs.

The State of Haryana & Anr. ..Respondents     Coram: Hon’ble Mr. Justice Vinod
K.Sharma

Present: Mr.V.P.Singh, Advocate,

for the petitioner.

Mr.Rajeev Kawatra, Sr.DAG, Haryana.

for respondent No.1.

Mr.H.N.Mehtani & Mr.V.P.Kashyap, Advocates,

for respondent No.2.

—

1. Whether Reporters of Local Newspapers may be allowed to see the
judgment?

2. To be referred to the Reporters or not?

3. Whether the judgment should be reported in Digest?

—

CRM No.23818-M of 2009 2    Vinod K.Sharma,J. (Oral)

This petition under section 482 Cr.PC has been moved for  quashing
of complaint dated 14.10.2006 filed under section 194 IPC by  Shri R.S.Virk,
Additional Sessions Judge-I, Bhiwani, pending in the court  of learned Chief
Judicial Magistrate Bhiwani.  Smt.Sanjay lata filed a complaint under sections
302/498-  A/406 and 120-B IPC against Amrit Gautam and others on the pleadings
that ever since her marriage on 27.4.1996 she was not given due recognition  and
instead of her having studied up to M.A,. B.Ed. level and her parents  having
spent 3 lacs on her marriage accused/husband and his relatives were  not
satisfied with the dowry brought by her and she was taunted time and  again with
the demand of fridge, scooter and Rs.5000/- (Rupees fifteen  hundred only),
besides gold neckless, Saris etc to which she expressed her  inability. It was
also pleaded that she was assaulted and even starved,  wrongly confined in the
room during summer and was even bolted inside a  bath room in December, 1996.
She was even denied use of quilt with a view  to ensure her death by exposure to
the cold.  It was further case set up that she had given birth to a male  child
on 5.9.1997. In spite of the fact that he was only 2.6 kilograms in  weight and
she was also very weak, the accused forcibly got her discharge  from the said
hospital on 7.9.1997 and did not allow her parents and  relatives to see the new
born child in the hospital or at her matrimonial  home. It was pleaded that
accused No.5 uncle of the accused brought some  liquid in a spoon which he had
administered to the new born by picking up CRM No.23818-M of 2009 3    in his
own arms and thereafter the child remained motionless and shortly it  was
discovered that he had expired. Other allegations were also levelled  claiming
prosecution of the accused for the offences referred to above.  The accused was
tried. Learned Additional Sessions Judge-I,  Bhiwani found the complaint to be
false and consequently acquitted the  accused The operative part of the order
reads as under:-  “19. In view of the above appraisal of prosecution evidence, I
hold that the complaint in hand was falsely instituted by the  complainant out
of malice and ill-will towards the accused  husband and his co-accused, all of
whom are hereby acquitted  of the offences they stand charged with. As discussed
above,  the complainant Sanjay lata and her father Sham Sunder stand  proved to
have deposed falsely specially qua their testimony in  the instant complaint
case regarding ill treatment of the  complainant wife in connection with demand
of dowry by the  accused husband Amrit, although while appearing as RW 1 and  RW
4 respectively during the hearing of HMA petition No.19  of 11.3.1999 titled
Amrit Lal Gautam Vs. Sanjay Lata decided  on 7.9.2001 in favour of accused
husband, they had admitted  that the accused/husband had never ill treated the
complainant  wife nor ever demanded any dowry. Such two contradictory  versions
in two courts of law by these two witnesses indicate  that these two witnesses
have scant concern for the law of the  land. Such conduct cannot be viewed
lightly, specially when CRM No.23818-M of 2009 4    through the false complaint
in hand these two witnesses have  sought conviction of the accused for a capital
offence.  Accordingly in the light of the provisions contained in Section  185
(1)(b)(i) Cr.PC read with section 340 Cr.PC, I am of the  considered view that
the complainant Sanjay Lata and her  father Sham Sunder should be tried, not
summarily under  Section 344 Cr.PC, but in the light of provisions contained in
Section 344 (3) Cr.P.C., they should be sent up to the court of  competent
jurisdiction to stand regular trial qua commission by  them of an offence
punishable under section 194 IPC. File be  consigned to the record room,after
due compliance.”  Copy of the order was sent to the court of CJM, Bhiwani to
prosecute the petitioner under section 194 IPC.  The parties have settled their
dispute.

The petitioner sought quashing of complaint primarily on the  ground
that mere fact that a witness made contradictory statement on 2  different
stages in judicial proceedings is not by itself always sufficient to  justify
the prosecution for perjury. In support of this contention reliance is  placed
on the judgment of Hon’ble Rajasthan High Court in the case of  Sanjiv Arora Vs.
State of Rajasthan 2008 (2) C.C.J. 310. The contention  of the learned counsel
for the petitioner, therefore, is that even if the  allegations are taken on its
face value no offence under section 194 IPC is  made out.

Learned counsel for the petitioner also contends that initiating CRM
No.23818-M of 2009 5    criminal proceedings is illegal and has been passed in
violation of the  provisions contained under section 340 Cr.PC. Section 340
Cr.P.C. Reads as  under:-

Section 340 of the Code of criminal Procedure reads as under:-
“340. Procedure in cases mentioned in Section 195:- (1) When,  upon an
application made to it in this behalf or otherwise, any  Court is of opinion
that it is expedient in the interest of Justice  that an inquiry should be made
into any offence referred to in  clause (b) of sub-section (1) of Section 195,
which appears to  have been committed in or in relation to a proceeding in that
Court, or as the case may be, in respect of a document produced  or given in
evidence in a proceeding in that Court, such Court  may, after such preliminary
inquiry, if any, as it thinks  necessary,–

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class jurisdiction;  (d)
take sufficient security for the appearance of the accused  before such
Magistrate or if the alleged offence is non-bailable  and the Court thinks it
necessary so to do, send the accused in  custody to such Magistrate, and

(e) bind over any person to appear and give evidence before  such
Magistrate.

(2) The power conferred on a Court by sub-section (1) in CRM
No.23818-M of 2009 6    respect of an offence may, in any case where that Court
has  neither made a complaint under sub-section (1) in respect of  that offence
nor rejected an application for the making of such  complaint, be exercised by
the Court to which such former  Court is subordinate within the meaning of sub-
section (4) of  Section 195.

(3) A complaint made under this section shall be signed-  (a) where
the Court making the complaint is a High Court, by  such officer of the Court as
the Court may appoint;  (b) in any other case, by the presiding officer of the
Court.  (4) In this section, “Court” has the same meaning as in Section  195.

Learned counsel for the petitioner placed reliance on the  judgment
of this court in Crl. Misc. No.3220-M of 1986 titled as  H.S.Grover, Accounts
Officer Vs. Rajinder Singh decided on 4.8.1986  wherein this Hon’ble Court has
been pleased to lay down as under:-  ” The object of this section is to record a
finding to that  effect and then make a complaint thereof in writing to a Court
of law. Thus, the motivating factor is that such enquiry should  be conducted if
it is expedient in the interest of justice. The  second one is that an offence
of the kind mentioned therein  must appear to have been committed, for which the
Court a one  under section 195(1)(b), Code of Criminal Procedure, chooses  to
become a complaint.

CRM No.23818-M of 2009 7    In the instant cases, as the facts are patent,
neither of the  two considerations surface. In the first place, neither of the
two  suits were decided by the trial Judge and the Court had no  occasion to
determine the falsity or otherwise of the documents  produced by the
petitioners. To repeat here, it is observed that  one suit was dismissed as
withdrawn and the other one went to  the Tribunal to be dismissed. Secondly, the
Court received the  documents allegedly false and forged from the petitioners as
part of the Court files and nowhere were offences committed in  relation to
those documents while the mater was pending in the  court. In other words,
offences were not committed when the  documents stood filed in the Courts. They
had introduced on the  file as pleadings or proof in the pro-fabricated formed;
in other  words, already falsified and forged. A Full Bench of this curt  in
Crl.Misc. No.5095 M of 1985 (Harbans Singh Vs. State of  Punjab) decided on
7.5.1986 held that in such a situation  section 195(1)(b)(ii) of the Code of
Criminal Procedure would  not be attracted and the Court is not obliged under
the section  195(1)(b)(ii) to be the complainant. Similarly, there was no
occasion to hold the documents and pleadings to be false. Thus,  plainly, on
both aspects of the case, the proceedings against the  petitioners on
applications under section 340 of the Code of  Criminal Procedure are nothing
but abuse of the process of the  Court and deserve to be struck off from the
file of he learned CRM No.23818-M of 2009 8    Judge. It is held accordingly.

For the aforesaid reasons, these petitions, are accepted
and the proceedings against the petitioners are quashed.  Ordered accordingly.”

to contend that the continuation of proceedings, therefore,  would
be nothing but misuse of the process of court as proceedings are in  violation
of statutory provision as the learned court has not recorded a  finding that it
is expedient in the interest of justice that enquiry be made into  offence.

The contention raised deserves to be accepted in view of law  laid
down by this court in CRM No.3220-M of 1986 (H.S.Grover Vs.  Rajinder Singh
(supra).

This petition is allowed and the complaint and subsequent
proceedings pending in the court of learned Chief Judicial Magistrate  Bhiwani,
pursuant to the complaint made by learned Additional Sessions  Judge-I, Bhiwani
are ordered to be quashed.

(Vinod K.Sharma)

4.09.2009 Judge rp