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Uttarakhand High Court · body

2006 DIGILAW 53 (UTT)

P. D. Raturi v. State of Uttaranchal

2006-02-24

J.C.S.RAWAT

body2006
JUDGMENT J.C.S. Rawat, J.- The present petition u/s 482 Cr.P.C. has been filed by the petitioner to quash the summoning order dated 14.07.1997 and complaint filed by the opposite party No.2 registered as case No. 23/97 pending before the court of judicial Magistrate Uttarkashi. 2. Brief facts for the disposal of this petition arc that a complaint was filed by the District Magistrate before the Court of Chief Judicial Magistrate u/s 57 of U.P. Khanij (Riyayat) Niyamawali. 1963 read with Rule 3 and the C.J.M. tried the accused and the accused 'vas acquitted by the trial court. The applicant appeared before the court below. The applicant was cross-examined at length by the defence. The C.J.M. vide its order dated 28,03.1997 acquitted the accused person and came to the conclusion that the applicant had given a false evidence and found that he is liable to be prosecuted fur giving the false evidence and he directed straightway to file the complaint before the competent Magistrate. 3. Thereafter, the complaint was filed before the J.M., Uttarkashi and the Magistrate took the cognizance and summoned the accused and he issued the bailable warrant against the applicant. 4. .Feeling a!];grieved by the said complainant and the order, the present petition has been filed. 5. Learned counsel for the petitioner contended that the C.J.M. before filing the complaint u/s 340 Cr.P.C. did not comply with the mandatory provisions of Section 340 Cr.P.C. and as such, the complaint and the' summoning order thereupon is void abinitio and liable to he set aside. 6. I have heard learned counsel for the parties and perused the record.. 7. There is nothing on record to show that the Court below while making the complaint did not apply its mind. The trial court had proceeded to make the inquiry as emphasized under section .140 Cr.P.C. It is provided under the provision of Section 340 Cr.P.C. that the Magistrate would proceed under section 340 Cr.P.C. before launching prosecution against the person who had given false evidence. The trial court had proceeded to make the inquiry as emphasized under section .140 Cr.P.C. It is provided under the provision of Section 340 Cr.P.C. that the Magistrate would proceed under section 340 Cr.P.C. before launching prosecution against the person who had given false evidence. The complaint can only be filed if an inquiry .under section 340 Cr.P.C. has been concluded and the court comes to the conclusion that it is expedient in the interest of justice that the inquiry should of made into an offence referred to under clause (h) of sub-section (1) of Section 195 of Cr.P.C. in relation to any proceedings in that court The court after such preliminary inquiry may direct for filing of the complaint before the appropriate court against such person. From the perusal of the Section 340 Cr.P.C. it follows that there are two conditions, on fulfillment of which a complaint can he filed against the person who had given false evidence in a proceedings before the court. The first condition being that a person has given false evidence in the proceedings before the court and secondly in the opinion of the court it is expedient in the interest of the justice to make an inquiry against such person in relation to the offence committed by him. There is no doubt that the trial court has held in his judgment that the applicant has given a false statement on oath before the court On the perusal of the record, I find that he learned Magistrate had not made any inquiry as emphasized under section 340 Cr.P.C. to ascertain as to whether it was expedient in the interest of the justice to tile a complaint If such inquiry has not been made and though the finding of the Magistrate has not been recorded as indicated above, the complaint is bad in the eyes of law. The complaint is not maintainable without such inquiry. As such, the complaint is liable to be quashed. . 8. I am fortified to take this view by the decision of the Apex Court in B.K. Gupta Vs. Damodar H. Bajaj 2001 (42) ACC 1074. 9. In view of the above discussion am of the view that the complaint is liable to he quashed and the same is accordingly quashed. The petition is allowed accordingly.