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Himachal Pradesh High Court · body

2000 DIGILAW 140 (HP)

KUNDAN LAL AHUJA v. B. K. SHARMA

2000-06-22

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J. (Oral): This revision petition is directed against the order dated 7.1.2000 passed by the learned Addl. Chief Judicial Magistrate, Shimla, in Complaint Case No. 12-3-IV of 1999 whereby the said complaint has been dismissed. 2. The facts relevant for the purpose of present discussion are that the respondent is alleged to have filed false affidavits in this Court in Civil Writ Petition No. 563/1997 and in the Civil Miscellaneous Application No. 1178/1997 in the said Civil Writ Petition and also in support of the reply to Civil Miscellaneous Petition No. 472/1997 in RSA No. 282/1996. On the basis of these allegations, the petitioner filed a complaint under Section 193 IPC against the respondent in the Court of the learned Addl. Chief Judicial Magistrate, Shimla. After having recorded the statement of the petitioner in the complaint case, when the case came up for consideration before the learned trial Magistrate to find out as to whether the accused should be summoned or not on 7.1.2000, none appeared for the petitioner-complainant despite the fact that the case was repeatedly called. At 3.20. P.M., the trial Magistrate proceeded to dismiss the complaint in view of the provisions of Section 195 of the Code of Criminal Procedure. Hence the present petition. 3. I have heard the learned counsel for the parties and have also gone through the prescribed material placed on record. 4. It is admitted case of the petitioner that the complaint in question had been filed in relation to the alleged false affidavits filed by the respondent in this Court. Therefore, assuming for the sake of arguments, though not conceding, that the said affidavits are false, the complainant could not legally prosecute the respondent for the commission of an offence punishable under Section 193 IPC. 5. Section 340 of the Code of the Criminal Procedure which provides procedure for dealing with the offences under Section 193 IPC reads as follows: " 430. 5. Section 340 of the Code of the Criminal Procedure which provides procedure for dealing with the offences under Section 193 IPC reads as follows: " 430. Procedure in cases mentioned in Sec. 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 interests 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 there of 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. (2) The power conferred on a Court by sub-section (1) in 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." 6. (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." 6. It is clear from the bare reading of the aforesaid provisions that as and when an offence under Section 193 IPC is committed, either on the application of the aggrieved party or of its own accord, the Court in relation to which such offences been committed and if it is of the opinion that it is expedient in the interests of justice that an inquiry should be made into the offence, such Court may hold a preliminary inquiry as it may think necessary and record its finding as to whether the offence under Section 193 IPC has been committed or not and if the findings are that such an offence has been committed, such Court shall make a complaint thereof in writing to the Judicial Magistrate 1st Class having jurisdiction to try such offence. In the given circumstances, under sub-section(2) supra, these powers can be exercised by the Court to which the Court in relation to whose proceedings the offence is alleged to have been committed, is subordinate. Thus, in the instant case, in case the alleged offence was committed, it was for this Court to have lodged the complaint against the respondent after adopting the procedure as prescribed in Section 340 supra. In the instant case, neither any application has been made by the petitioner to this Court to take proceedings under I Section 340 of the Code nor this Court has ever opined that it is expedient in the interest j of justice to hold inquiry or that a complaint should be filed against the respondent under / Section 193 IPC. 7. The relevant portion of Section 195 of the Code of Criminal Procedure reads as follows: "195. 7. The relevant portion of Section 195 of the Code of Criminal Procedure reads as follows: "195. Prosecution for, contempt of lawful authority of public servants, for offences against public justice and for offences relation to documents given in evidence: (a) (i) to (iii) xxxx xxxx (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199,200,205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceedings in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceedings in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) of sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate." 8. It is clear from the bare reading of the above quoted provisions that no Court can take cognizance of any offence punishable under Section 193 IPC except on the complaint in writing of the concerned Court or of some other Court to which that Court is subordinate. Therefore, the trial Magistrate could not take cognizance of the alleged offence and has rightly dismissed the complaint. 9. For the reasons stated hereinabove, there is no merit and substance whatsoever in the present petition which is accordingly dismissed.