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2007 DIGILAW 1842 (PAT)

Sangeeta Dubey "archana" v. Manoj Kumar Ojha

2007-12-03

SADANAND MUKHERJEE

body2007
Judgment 1. Heard the parties. 2. This appeal is directed against the order dated 8.6.2007 passed in Cri. Misc. Nc 2 of 2005 by the Additional Principal Judge, Family Court, Patna rejecting application of the appellant to make a complaint against respondent Manoj Kumar Ojha for the offence under Section 193 of the I.P.C committed by him by giving false evidence and fabricating false evidences under Sections 191 & 192 of the I.P.C. in relation to a judicial proceeding in Matrimonial Case No. 344/2002. 3. It appears that an application under Section 340 of the Cr. P.C. was filed before Family Court, Patna in the light of the judgment of this Court reported in A.I.R. 1954 Patna page-77 as stated in the application. It has been submitted that in para-17of the judgment and order dated 7.5.2005 in the above said Matrimonial Case No. 344/2002, the Additional Principal Judge, Family Court, Patna found that Opposite party No.1 Manoj Kumar Ojha had stated lies and the evidence of the respondent was falsified by his own letter and document produced by him. The respondent had filed appeal against the judgment and order dated 7.5.2005 passed in Matrimonial Case No. 344/2002 by the learned Family Court, Patna in this High Court which has been registered as F.A.No. 20/2006 for setting aside the findings of the learned Fam-ily Court, but the same was dismissed by Division Bench of this Court, and hence the same shall be used against the appellant Manoj Kumar Ojha in the context of the said matrimonial case or any appeal or any proceeding arising from the said matrimonial case (Annexure-4). As regards the case from which. the present appeal.has arisen, it is stated that a notice in Cri. Misc. No. 2/2005 had been sent to the respondent, but no reply was given by the respondent denying or challenging the finding of false evidence. However, a rejoinder was filed vide Annexure-6 on behalf of the appellant, stating therein that the order of the Hon ble High Court dated 19.1.2007 did not create any bar to the maintainability of the case. It is stated on behalf of the appellant that an. However, a rejoinder was filed vide Annexure-6 on behalf of the appellant, stating therein that the order of the Hon ble High Court dated 19.1.2007 did not create any bar to the maintainability of the case. It is stated on behalf of the appellant that an. order was passed by the learned Family Court in the case on 8.6.2007 rejecting the prayer of the petitioner to make a complaint for the offence under Section 193 of the I.P.C. against the respondent on the ground that the decree of divorce has been passed against the respondent and therefore it is not desirable to knock on the same cause of action again, and the appellant has a liberty herself to take another iegai course of action through filing of criminal case for giving false version in the case. 4. It has been submitted that it is expedient to exercise power under Section 340 of the Cr. P.C. in view of various decisions of the Hon ble Supreme Court as reported in (1971) 1 SCC page-774, AIR 1978 SC page-290," (2001) 5 SCC page-289, laying emphasis on the fact that this is a fit case for exercise of power under Section 340 of the Cr.P.C. by the Court. It has been submitted that the learned Court below gave a finding in Cri. Misc. No. 2/ 2005 stating that the appellant shall be at liberty to take another legal course of action through filing of criminal case etc. for giving false version in the case. It has been submitted that the aforesaid finding of the learned Principle Judge, Family Court is beyond comprehension on the face of bar in filing complaint created under Section 195 of the Cr.P.C. It has also been submitted that the learned Court below should have exercised power under Section 340 of the Cr.P.C. to cause an enquiry as falsehood which itself had been stated on behalf of the respondent was not a ground for decree of divorce, but desertion, cruelty and adultery was ground for divorce. It has also been submitted that finding in the judgment of the learned Family Court have been confirmed by the Hon ble Patna High Court in the order dated 19.1.2007 while discussing appeal, F.A.No.20/2006 filed by the respondent. 5. On behalf of the respondent appearance has been made through lawyer. 6. Heard learned counsel for appellant and learned counsel for the respondent. 7. 5. On behalf of the respondent appearance has been made through lawyer. 6. Heard learned counsel for appellant and learned counsel for the respondent. 7. The main grievance of the appellant while challenging the impugned order in Cri. Misc. No. 2/2005 refusing to entertain the application under Section 340 of the Cr.P.C. and making a complaint in the Court. of C.J.M. rests upon the premises that in the Matrimonial Case No. 344/2002 the Court below had stated about falsehood indulged in by the respondent. The learned Additional Principal Judge, Family Court did not consider it proper to hold an enquiry as the order of dissolution of marriage was based on the aforesaid facts said to.be false. It has been submitted on behalf of the respondent that no enquiry was found necessary by the Family Court to ascertain whether offence contemplated under Section 193 of the I.P.C. appears to have been committed. 8. In this context it is desirable to indicate that in F.A No. 20/2006 before this Court from the order dated 19.1.2007 it appears that respondent had filed a petition to the effect that certain observations and findings made in the Trial Court judgment may harm the petitioner in future. In this context this Court in F.A.No. 20/2006 held as follows: "It is made clear that any observations, comments or findings by the Trial Court were in the context of the matrimonial suit and are confined to it and any appeal or proceedings arising from it. Those findings, comments or observations shall not be used against the appellant Manoj Kumar Ojha in any other way." 9. The appeal was dismissed with aforesaid observation as the respondent did not press the appeal in the aforesaid case. 10. Section 340 of the Cr.P.C. contemplates an enquiry to reach a finding for a case to institute a complaint if made out in respect of any offence under the provisions of Section 195(1)(b) of the Cr.P.C. The prosecution under Sections 193 to 196 of the I.P.C. and some other sections enumerated therein committed in relation to a proceeding of that Court, was sought to be lodged after such preliminary enquiry if necessary. The Court below refused the prayer on the basis that finding of dissolution of marriage which was recorded on the premises of the facts also took note of the statement of respondent under Section 340 of the Cr.P.C. a discretion is conferred upon the Court if it is expedient in the interest of justice that an enquiry should be made into an offence affecting administration of justice. The question of expediency in the interest of justice to have an enquiry made, depends upon the facts and circumstances of each case. 11. In the instant case, it was not considered proper by the learned Family Court to hold an enquiry as the evidence of respondent containing his statement formed the basis of grounds of divorce. It is well settled that the Court has to exercise judicial discretion in the light of all the relevant circumstances to determine the question of expediency and order prosecution in the larger interest of administration of justice. 12. Besides, in F.A No. 20/2006 vide order dated 19.1.2007 this Court in the Division Bench also observed that the findings, comments or observations of the learned Family Court shall not be used against the appellant Manoj Kumar Ojha in any other way. 13. Considering all the above circumstances, I am not inclined to interfere with the impugned order and findings of the Additional Principal Judge, Family Court, Patna, passed in Cri.Misc. No. 2/2005 giving rise to the present appeal. 14. Accordingly, the instant appeal is dismissed.