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2004 DIGILAW 198 (GAU)

O. P. Bharuka v. Shakuntala Modi

2004-03-22

S.K.KAR

body2004
JUDGMENT S.K. Kar, J. 1. This is an appeal Under Section 341 Cr.PC preferred by Shri Om Prakash Bharuka, appellant herein against respondent Nos. 1 and 2, respondent 1 being his wife (since divorced). The appellant has assailed the order dated 30.11.1993 passed by the Addl. District Judge, Dibrugarh in Misc. (J) Case No. 96/92 arising out of the Title (Divorce) Suit No. 8/88 on the grounds, inter alia, that the court below failed to take note of the primary object of the proceeding Under Section 340 Cr.PC which is meant for the purpose of curbing the evil of perjury. That the false evidence given by the respondents/O.P. were pinpointed with utmost precision and the court below ought to have instituted a complaint against the respondents. That the respondents/O.P. used the court as a tool to further their petty selfish interest whereby the appellant was seriously prejudiced. That the provisions of Section 340 Cr.PC is meant for larger interest of administration of justice and the court below ought to have taken appropriate action to punish the respondents/O.P. for taking recourse to perjury by deliberate and conscious act. 2. The appeal is a long pending one and none appears for the appellant when the case is taken up for hearing. I have heard learned counsel appearing for the respondents/O.P. 1 and 2. 3. Respondents 1 and 2 had earlier submitted separately their written arguments in this appeal, I have gone through the written arguments so filed. 4. Section 340 is the first section coming under Chapter XXVI dealing with 'provisions as to offence affecting the administration of justice' and it goes as follows : "340. Procedure in cases mentioned in Section 195. 3. Respondents 1 and 2 had earlier submitted separately their written arguments in this appeal, I have gone through the written arguments so filed. 4. Section 340 is the first section coming under Chapter XXVI dealing with 'provisions as to offence affecting the administration of justice' and it goes as follows : "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 is it 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, (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 Section195. (3) ..... (4)......" Section 341 Cr.PC provides for filing an appeal to next higher court to which the former court is subordinate within the meaning of Sub-section (4) of Section 195 and appropriate order will be passed by the appellate court as per provisions of Section 341. 5. Before entering into the merit of the present appeal let us note the background of the case. Respondent 1 was married to the appellant on 16.7.1975 at Dibrugarh according to Hindu rites and rituals. Out of the wedlock three children were born. 5. Before entering into the merit of the present appeal let us note the background of the case. Respondent 1 was married to the appellant on 16.7.1975 at Dibrugarh according to Hindu rites and rituals. Out of the wedlock three children were born. Respondent No. 1 filed a divorce suit on 28.3.1988 being Title (Divorce) Suit No. 12/1988 in that court of District Judge, Dibrugarh against the appellant mainly on the ground of cruelty and also prayed for custody of three children, 'stridhan' (woman's property) along with other reliefs. The appellant filed a petition before the Supreme Court for transfer of the case but the Hon'ble Supreme Court refused to interfere. Thereafter, the appellant appeared in the divorce suit but failed to contest the same by filing his written statement and accordingly, the suit proceeded ex parte and on 4.1.1989, a decree of divorce was passed incidentally, the appellant also admitted the allegations on a compromise petition filed in the suit. Court also granted custody of the children in favour of the respondent No. 1. A decree was drawn and executed against the appellant. 6. The appellant filed an appeal before this High Court against the judgment arid decree dated 4.1.1989 (registered as first appeal No. 63/ 89). However, during the pendency of the appeal, the appellant submitted a petition that he is not going to challenge the decree of divorce as marriage has already broken down and decree of divorce was confirmed in the first appeal No. 63/89 by passing order dated 18.9.1989, However, the order of custody of the children was set aside and the matter was remanded for fresh disposal. But, in the meantime, this High Court directed that the custody of the children will continue to remain with respondent No. 1 till any order to the contrary is passed by the trial court. A special leave petition preferred before Supreme Court against the judgment of this court dated 18.9.1989 [registered as SLP (Civil) No. 15295/1989] was ultimately dismissed. The appellant thereafter filed a petition under the Guardians and Wards Act, 1890 before the Senior Sub-Judge, Tis Hazari Court, Delhi (case No. 61/ 1990) with a prayer for interim custody of the children. There was a revision petition, being No. 775/90, before the Delhi High Court against the order refusing custody of the children by the Senior Sub-Judge, Tis Hajari Court, Delhi. There was a revision petition, being No. 775/90, before the Delhi High Court against the order refusing custody of the children by the Senior Sub-Judge, Tis Hajari Court, Delhi. Ultimately, the said revision was dismissed by the Delhi High Court on 18.9.1990. On 18.9.1990, the respondent No. 1, however, filed a petition upon getting notice of Case No. 61/1990 and another application Under Section 340 Cr.PC for making false statement by the appellant on 31.6.1990. Respondent No. 1 also filed a transfer application No. 530/1990 before the Hon'ble Supreme Court seeking transfer of case No. 61/1990 to Dibrugarh Court and finally, the case was transferred to Dibrugarh by the Hon'ble Supreme Court. All these cases, i.e., Title (Divorce) Suit No. 8/88, Case No. 61/90, and case No. 49/91 were taken up by the Addl. District Judge, Dibrugarh. Ultimately, for not taking steps, Misc. Guardianship Case No. 47/91 was dismissed and dismissal order of that court was agitated in MA(F) No. 114/91 and this court by setting aside the order dated 3.9.1991, referred the matter, for conciliation and appropriate orders in so far as the custody of the children is concerned, back to the lower court. 7. Without mentioning all these civil cases, it may be stated that the appellant having failed to get the decree of divorce set aside and to procure custody of the children filed an application on 10.9.1992 under Section 340 Cr.PC before Addl. District Judge, Dibrugarh for recording a finding against the respondent Nos. 1 and 2 that they have committed offences of perjury in the proceeding before that court and to direct lodging of a complaint before the CJM. The respondents 1 and 2 filed their objections against the aforesaid application denying the allegation of giving false evidence and contended, inter alia, that the appellant being unsuccessful in several attempts, filed the aforesaid application Under Section 340 Cr.PC with a vindictive attitude to take personal revenge against the respondent No. 1 averring that the respondent has not made any false statement in the proceedings in question. That in the judgment and order dated 4.1.1999, nowhere the court came to a finding that respondent No. 1 gave false evidence. That in the judgment and order dated 4.1.1999, nowhere the court came to a finding that respondent No. 1 gave false evidence. That the order sheet of the court below will show that the appellant was adhering to dilatory tactics and was seeking adjournments but finally the court disposed of the petition by an order dated 30.11.1993 dismissing the application and accordingly, being dissatisfied with the order dated 30.11.1993 this appeal has been presented Under Section 341 Cr.PC. 8. Allegations those were made against the respondent No. 1 in order to allege giving of false evidence may be summarised as follows : "(i) "My father-in-law gifted me the house situated on his land at Jalan Nagar." (ii) "He did not have any source of income." (iii) "He received rent of my house and the interest of my money." (iv) "Because of his unemployment and aggressive nature, the opposite party always kept making quarrels with me and asked me to bring cash of my father." (v) "His share of cash money was finished. Then he asked me to sell out my house." (vi) "I sold my house at Jalan Nagar in 1982 for Rs.1,40,000. The opposite party went to Delhi with us and my money." (vii) "Gradually that money was also spent." (viii) "The opposite party forcibly sold out my ornaments." (ix) "I managed the household expenditure by borrowing money from others." (x) That either of the two statements are correct "I again went to Delhi with my husband and our children. After passing a few days amicably, he again started assaulting me and told me many things for filing the divorce suit." (in her deposition) OR "That accordingly the petitioner went back to Delhi with her children to live with the respondent. But since August 1987, the respondent again insisted on the petitioner to demand gold and cash from her parents. But she refused. At this, the respondent on 6.9.1987 as first assaulted her with lathi and then threatened to kill her with knife."(in the plaint) (xi) "My present monthly salary is Rs.2000. Exhibit 4 is the salary certificate." (xii) That the fixed deposit made in the Punjab and Sind Bank is her stridhan. But she refused. At this, the respondent on 6.9.1987 as first assaulted her with lathi and then threatened to kill her with knife."(in the plaint) (xi) "My present monthly salary is Rs.2000. Exhibit 4 is the salary certificate." (xii) That the fixed deposit made in the Punjab and Sind Bank is her stridhan. The appellant further stated in his aforesaid application that the respondent No. 1 by aforesaid false statements mislead the trial court to grant ex parte decree of (i) divorce (ii) custody of three minor children (iii) the stridhan." The allegations against the respondent No. 2 are as follows : "(i) that a salary certificate has been issued by the respondent No. 1 on 29.12.1987 (marked as Ext. 4 in the concerned case) which is false because of the fact that the respondent No. 1 in her plaint filed on 23.3.1988 has described herself as 'Housewife' and further she has omitted to mention about the fact of her joining in service and earning Rs.2000 per month, in her plaint as well as in her affidavit filed on 28.3.1988 which was appended to the petitioner praying for custody of her children. (ii) Respondent No. 2 who is a Chartered Accountant practising at Dibrugarh and earning handsome amounts as fee from the wealthy uncles of the respondent No. 1, has been pressurized by the respondents No. 1's unless to issue false appointment letter/salary Certificate (Ext. 4). (iii) The Ext. 4 was for the first time produced before the Court on 4.1.1989 prior to petitioner's deposing in Court. Had this certificate been actually issued on 29.12.1987, the respondent No. 1 could not have kept the same in her cupboard for more than a year. Thus, it is unambiguously clear that the respondent No. 2 colluded with respondent No. 1 under pressure of her wealthy uncles and issued the said false certificate, knowing as well as believing that the certificate is false and in the process respondent No. 2 committed offence under Section 187 IPC." 9. It is submitted by the respondents that ext. 4 was, in fact, an appointment order and not a salary certificate prepared for the purpose of the proceedings. That ext. 4 was in existence before filing of the case and there is no question of manufacturing the same for the purpose of proceedings and accordingly, no liability can be fixed. It is submitted by the respondents that ext. 4 was, in fact, an appointment order and not a salary certificate prepared for the purpose of the proceedings. That ext. 4 was in existence before filing of the case and there is no question of manufacturing the same for the purpose of proceedings and accordingly, no liability can be fixed. It was rightly submitted by the respondent No. 1 that as per provisions of law contained in Section 340 Cr.PC, it is fully under the discretion of the court concerned which is in seisin of the matter to decide whether under particular facts of the case any complaint has to be lodged. That in the instant case, the trial court has considered the entire background and being aware of the principle laid down came to a finding that it will not be expedient in the interest of justice to file a complaint against the respondents. That discretion was exercised by the court below after application of judicial mind and giving appropriate reasons. 10. I have been referred in this context to the law Santokh Singh v. Izhar Hussein and Anr. and Pritish v. State of Maharashtra and Ors. It will be worth noting that para 11 of (supra) has recorded the position of law as guiding principle either for taking or not taking action Under Section 340 or Section 211 of Cr.PC. Para 11 or AIR 1973 SC 2190 (supra) goes as follows : "11. The High Court also seems to have committed serious error in ignoring that in the appellant's statement he had clearly stated that he had not seen amongst the assailants the accused Izhar Hussain present in the court. In face of this statement there was no question of the appellant having made any accusation against Izhar Hussain in his deposition. In any event considering the entire statement of the appellant it is not understood how it can be considered expedient in the interest of justice to direct the appellant's prosecution. Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. Every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge, or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its every object. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution. The High Court seems to have misunderstood the appellant's evidence and has also failed to apply its mind to the question of expediency. Reference by the High Court to identification parade is also somewhat inappropriate. Identification at test parades could by no stretch (of imagination) be considered to amount to a false charge against Izhar Hussain as contemplated by Section 211 IPC. Such identification is not substantive evidence and it can only be used as corroborative of the statement in court. The identification parade thus could not improve the prosecution case." 11. If and when each and every such contradictions and inconsistencies in the evidence recorded by the court have to be taken into account for filing a complaint Under Section 340 Cr.PC, it will otherwise frustrate the very purpose of this section of law. Every action taken should be purposeful and not an exercise in vain. Undoubtedly law is there but it has to be exercised with due caution and understanding. It is rightly held by courts that such action Under Section 340 Cr.PC is not to be taken to gratify the feelings of personal revenge or vindictiveness or to serve the ends of private parties, it is clearly mentioned that the provisions of Section 340 Cr.PC is for prevention of offences affecting administration of justice. A merely causal or unguarded statement here and there, may be passionate, will not attract the provision of law in this chapter. It has to be applied only in glaring cases of deliberate falsehood with oblique purposes and action thereunder may be adhered to when conviction is highly likely. A merely causal or unguarded statement here and there, may be passionate, will not attract the provision of law in this chapter. It has to be applied only in glaring cases of deliberate falsehood with oblique purposes and action thereunder may be adhered to when conviction is highly likely. It has been brought to the notice of this court by the learned counsel for the respondents that in the instant case the background of the case will be amply demonstrative of the fact that appellant is making allegations against the respondent No. 1 one after another not to vindicate justice but to take revenge etc. We attempted to get the custody of the children by hook or by crook and also there was an intent to harass the respondent No. 1 by adhering to means whatsoever. 12. Then again, it has been rightly submitted that there was absolutely no finding either by the Trial Court or the High Court that the witnesses have lied on oath in order to constitute perjury. The excerpts of statements made on oath (as quoted beforehand) by the respondent Nos. 1 and 2 will have to be proved firstly as false before any complaint can be thought of. Not only that the court will have to be certain that 'it is expedient in the interest of justice' to think for making of such complaint. In the instant case, courts have acted upon the evidence adduced by the respondents treating them as trustworthy and that being the factual position, the same court cannot volte face now to say that evidence on which it acted to decide facts are false and not dependable. Thus, there is absolutely nothing to assail the finding of the learned lower court. 13. Appeal is, thus, devoid of merits and stands dismissed. Respondents, at their option, may claim a costs of Rs.5000 (Rupees five thousand only) from the appellant.