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2001 DIGILAW 355 (PAT)

Smt. Bharti Tewari v. State Of Bihar

2001-04-19

ANIL KUMAR SINHA

body2001
Judgment ANIL KUMAR SINHA, J. 1. This revision application has been directed against the order dated 3.12.1998, passed by the Additional District Sessions Judge, VIII. Patna in Criminal Appeal No. 108 of 1997 by which the learned court beloy set aside the order dated 30.5.1997 passed by the Sub-divisional Magistrate. Sadar. Patna in case No. 667/(M)/ 94 and directed him to make an inquiry into the matter under Section 340 of the Code of Criminal Procedure. 2. Some of the essential facts relating to the present revision application may be briefly stated as hereunder : 3. There was a proceeding under Section 107 of the Code of Criminal Procedure, in which the petitioner was first party and opposite party Nos. 2 to 4 were the second party, bearing case No. 19(M)/94 of the Court of Sub-divisional Magistrate, Patna. The proceeding was initiated at the instance of the petitioner who submitted a written report to the Officer-in-Charge of Kankarbagh Police Station on 12.12.1993 against opposite party Nos. 2 to 4 in which it was alleged that the O.Ps. went to the residence of the petitioner and threatened him with dire consequences for vacating the house in which she was living. The police made an inquiry and submitted a report to the Sub-divisional Magistrate. Patna praying thereto to initiate a proceeding under Section 107, Cr PC against both the parties and accordingly the proceeding was initiated. The learned Sub-divisional Magistrate, Patna vide his order dated 7.4.1994, however dropped the proceeding holding that it is a false case which was filed only to malign the second party. The. petitioner preferred a revision against the order passed by the Sub-divisional Magistrate which was also dismissed by the Sessions Judge vide his order dated 24.4.1995 passed in Criminal Revision No. 259 of 1994. Thereafter, opposite party Nos. 2 to 4 filed a petition before the Sub-divisional Magistrate, Patna for initiating a proceeding against the petitioner under Section 182/211 of the Indian Penal Code. The learned Sub-divisional Magistrate vide his order dated 30.5.1997 rejected the petition against which an appeal was preferred before the Sessions Judge and the appeal was transferred to the file of Additional Sessions Judge who passed the impugned order as stated above. 4. The learned Sub-divisional Magistrate vide his order dated 30.5.1997 rejected the petition against which an appeal was preferred before the Sessions Judge and the appeal was transferred to the file of Additional Sessions Judge who passed the impugned order as stated above. 4. Learned counsel appearing for the petitioner submitted at the very out set that the order passed by the learned Additional District Judge is without jurisdiction because in the facts and circumstances of the case the provision of Section 340, Cr PC is not applicable at all, in as much, as the petitioner had not produced any document nor any document was given in evidence in the proceeding under Section 107, Cr PC. It was urged that the petitioner had only given an information to the police regarding the high handedness committed at the hands of O.P. Nos. 2 to 4 and the police had made an inquiry into the matter and had recommended for initiating a proceeding under Section 107, Cr PC against both the parties. Save and except that, the petitioner had not produced or used any document, whatsoever as evidence in the proceeding pending between the parties. As such, the direction given by the appellate court for making an inquiry under Section 340 (1), Cr PC is without jurisdiction. 5. The provision of Section 340(1). Cr PC may usefully be quoted as hereunder : 340. Procedure in case 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 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 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." 6. The provisions as quoted above manifestly go to show that it applies to a case where any offence as referred to in clause (b) of sub-section (1) of Section 195 appears to have been committed in relation to proceeding in a Court in respect of a document produced or given in evidence in the proceeding of the Court. But, herein the instant case the admitted position is that no document had been produced or tendered in evidence in the proceeding under Section 107, Cr PC pending before the Sub-divisional Magistrate. 7. In the case of Sachida Nand Singh and Anr. v. The State of Bihar and Anr., 1998 (2) SCC 493 : 1998 (1) East Cr C 894 (SC) the Apex Court held as follows : "The scope of the preliminary enquiry envisaged in Section 340 (1) is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words the offence should have been committed during the time when the document was in custodia legis." 8. The decision referred to above is fully applicable in the facts and circumstances of the present case and following the ratio of the aforesaid decision, it can be said without any doubt that the provision of Section 340(1), Cr PC is attracted where any offence falling within the ambit of 195 (l)(b) of the Indian Penal Code appears to have been committed in respect of a document produced in court or given in evidence in a proceeding in that court. Since no document was produced or given in evidence by the petitioner in 107, Cr PC proceeding the question of directing an inquiry under the provision of Section 340(1), Cr PC does not arise at all. In that view of the matter, the impugned order passed by the learned Sessions Judge directing the Sub-divisional Magistrate to make an inquiry in terms of Section 340(1), Cr PC appears to be manifestly illegal and without jurisdiction. 9. The learned counsel for the petitioner has contended that the appeal was not maintainable because the opposite party Nos. 2 to 4 had filed a petition before the Sub-divisional Magistrate, Patna for filing a complaint against the petitioner under Section 182/211, Cr PC which was rejected by him and against that order there is no provision for appeal in view of provision of Section 195(l)(a) of the Cr PC. This submission has also got force in it. 10. For the reasons stated above this revision application is allowed and the impugned order passed by the Additional District Judge in criminal appeal No. 108/97 is set aside.