JUDGMENT Hon’ble M.K. Mittal, J.—Application has been filed by opposite party No. 2 Girja Shanker Srivastava for prosecuting Rajesh Tiwari for giving false evidence in criminal Misc. Application No. 11190 of 2005. Against this application Rajesh Tiwari has filed his counter affidavit and rejoinder affidavit has been filed by the opposite party No. 2. 2. Heard Sri Santosh Tripathi the learned Counsel for Rajesh Tiwari, Dr. C.P.Upadhyaya learned Counsel for the opposite party, learned A.G.A. and perused the record. 3. Brief facts of the case are that Santosh Kumar Shukla filed an application under Section 482, Cr.P.C. for quashing the case No. 4156 of 2005 under Sections 323, 504, 506, IPC pending in the Court of A.C.J.M., VIth Allahabad. His case was taken up for hearing on 17.7.2006 but the same was dismissed for default as none appeared for him. A recall application was filed on 20.7.2006 along with an affidavit of Rajesh Tiwari wherein he declared himself to be sole applicant in the case. 4. The opposite party No. 2 raised objection to the effect that Rajesh Tiwari was not the sole applicant in the case and that Rajesh Tiwari had given a false affidavit and prayed that notice be issued to him under Section 340, Cr.P.C. for giving false evidence. 5. Consequently, notice was issued to Rajesh Tiwari and he has filed his reply by way of counter affidavit dated 13.12.2006. In this affidavit Rajesh Tiwari stated that he is a clerk to Sri Santosh Kumar Tripathi and as such is acquainted with the facts of the case. Regarding earlier false affidavit, he has stated that he is not a stranger to the case but is clerk of Sri Santosh Kumar Tripathi and was therefore fully acquainted with the facts given in the affidavit in support of the recall application. He has not given any false affidavit and that there was only typing mistake and he was not to get any benefit by endorsing himself as sole applicant and that the word clerk to Sri Santosh Kumar Tripathi be read in place of sole applicant in the earlier affidavit. It has also been mentioned that the ingredients of Section 340, Cr.P.C. are not fulfilled and that the notice is liable to be discharged. 6. It has also been mentioned that the ingredients of Section 340, Cr.P.C. are not fulfilled and that the notice is liable to be discharged. 6. Against this counter affidavit, the opposite party No. 2 has filed rejoinder affidavit and has contended that Rajesh Tiwari has again given a false affidavit as he is not registered clerk of Sri Santosh Kumar Tripathi, Advocate, and as such is not competent to give affidavit in the case as provided in the High Court Rules and that it was not a typing mistake. Rajesh Tiwari is neither sole applicant nor pairokar of the applicant and as such there was no question of his being acquainted with the facts of the case. He is only a stranger. 7. Learned Counsel for Rajesh Tiwari did not dispute the fact that Rajesh Tiwari is not a registered Clerk as required in the High Court Rules. Chapter 26 of the Allahabad High Court Rules, 1952 provides for Advocate Clerks. According to Rule 1 only registered clerk can be allowed to do work in the Court. It is only the registered clerk who can file affidavit if so required under Rule 5(12) of the aforesaid Rules. Therefore, Rajesh Tiwari was not competent to file affidavit in this matter. Admittedly, Rajesh Tiwari was not sole applicant and he wrongly described himself as sole applicant in the earlier affidavit. 8. Learned Counsel for Rajesh Tiwari has contended that it was a typing mistake and he had no criminal intention as he was not to benefit by giving false evidence or statement in this proceeding. The learned Counsel for the opposite party No. 2 has contended that Rajesh Tiwari being stranger could not be acquainted with the facts of the case and he gave false affidavits on two occasions describing himself as sole applicant and as clerk to Sri Santosh Tripathi. It may be mentioned that the first recall application dated 20.7.2006 was not pressed by the learned Counsel for the applicant as the affidavit was filed by mistake and the same was dismissed as not pressed on 11.12.2006. The second recall application with which the affidavit of Rajesh Tiwari was filed showing him as clerk to Santosh Kumar Tripathi, advocate was not pressed by the learned Counsel for the applicant and the same has also been dismissed by order dated 9.1.2007. 9. The second recall application with which the affidavit of Rajesh Tiwari was filed showing him as clerk to Santosh Kumar Tripathi, advocate was not pressed by the learned Counsel for the applicant and the same has also been dismissed by order dated 9.1.2007. 9. Section 340 (1) of Cr.P.C. provides that 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 proceedings 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 make a complaint in writing. Therefore a complaint can be made if it is expedient in the interest of justice and if a person has committed any offence as referred in clause (b) of sub-section (1) of Section 195, Cr.P.C. According to learned Counsel for the opposite party No. 2 Rajesh Tiwari by giving a false evidence has committed the offence punishable under Section 193, IPC as mentioned in clause (b) of sub-section (1) of Section 195. But before exercising the powers under Section 340 Cr.P.C., circumspection is required to be exercised and the complaint should be made where it is expedient and necessary in the interest of justice. In the instant case, Rajesh Tiwari gave first affidavit alleging himself to be the sole applicant and in the second affidavit, he mentioned himself to be a clerk of Sri Santosh Tripathi. It is not disputed that these statements are incorrect. According to learned Counsel for Rajesh Tiwari, it was a typing mistake. But even if for arguments sake it is held that these statements were not on account of typing mistake, it has still to be seen if Rajesh Tiwari had any mens rea for committing the offence. 10. Learned Counsel for Rajesh Tiwari has contended that by making these false statement, he was not to gain anything as far as the merits of the case are concerned. This contention has force. 10. Learned Counsel for Rajesh Tiwari has contended that by making these false statement, he was not to gain anything as far as the merits of the case are concerned. This contention has force. The learned Counsel for the opposite party also could not point out as to how Rajesh Tiwari was to be benefitted. In the circumstances, I am of the opinion that there was no intention on the part of Rajesh Tiwari to give false evidence by means of affidavits and therefore there is absence of mens rea on his part and it is not expedient in the interest of justice that any complaint be filed against him and the application under Section 340, Cr.P.C. is liable to be rejected. However, it is necessary that Rajesh Tiwari is warned to be careful in future and is restrained from doing any Court work till he gets himself registered as required under the High Court Rules. 11. Application under Section 340, Cr.P.C. is hereby rejected. Notice under Section 340, Cr.P.C. is hereby discharged. However, Rajesh Tiwari is hereby warned to be careful in future and is restrained from doing any Court work till he gets himself registered as required under the Allahabad High Court Rules, 1952. Sri Santosh Tripathi, Advocate is also expected not to engage any person as his clerk unless he is registered under the Rules. ———