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Madhya Pradesh High Court · body

2007 DIGILAW 888 (MP)

GAYADEEN SINGH TOMAR v. STATE OF M P

2007-08-14

BRIJ MOHAN GUPTA

body2007
Judgment ( 1. ) THIS petition is for quashing the complaint registered at Criminal Case no. 1141/03 pending in the Court of CJM, Bhind, under Sections 193 and 195 of ipc against the petitioner. ( 2. ) THE facts in brief, are that, deceased Mamta, the daughter of the petitioner was married with one Bhanu Pratap Singh Kushwah. Within two and a half years of her marriage, she died. Merg was reported, enquiry was made. One typed report dated 30th January, 2002 (Annexure P-1) was submitted by the petitioner to City Inspector, City Kotwali, Bhind, putting allegations against bhanu Pratap Singh and his family members with regard to subjecting the deceased with cruelty on demand of dowry. Crime was registered. Bhanu Pratap and his family members were prosecuted. During trial, petitioner became hostile to the prosecution. He did not support the allegation lodged by him against the accused persons in that case. He admitted his signatures on his report which was admitted in the evidence as Exh. P-2, but denied the facts alleged against accused therein. He explained that this typed report was brought to him by the police officers and on their persuasion, he simply put his signatures as his mental status was not in order. Vide judgment dated 13th September, 2002 in S. T. No. 130/02 passed by 5th Additional Sessions Judge, Bhind, Bhanu Pratap Singh and his family members, who were the accused in that case for the offence punishable under Section 304-B/34 of IPC, have been acquitted. Vide Para 16, the learned Judge has observed that the report Annexure P-l (Exh. P-2 in sessions trial) was submitted by the petitioner after deliberations and the statement given by the petitioner in the Court is false. In the same para, it is directed that the prosecution of the petitioner be initiated for the offence punishable under Section 195 of IPC. This complaint dated 28th July, 2003, has been filed under Sections 193 and 195 of IPC by 5th Additional Sessions Judge in the Court of Chief Judicial Magistrate, Bhind. On this complaint, Criminal case No. 1141/03 has been registered against the petitioner. Feeling aggrieved with this prosecution, petitioner has preferred this petition. ( 3. ) SHRI Anil Mishra for the petitioner has assailed this prosecution on the following grounds :- (1) That, prosecution has been initiated without conducting an enquiry prescribed under Section 340 of Cr. PC. On this complaint, Criminal case No. 1141/03 has been registered against the petitioner. Feeling aggrieved with this prosecution, petitioner has preferred this petition. ( 3. ) SHRI Anil Mishra for the petitioner has assailed this prosecution on the following grounds :- (1) That, prosecution has been initiated without conducting an enquiry prescribed under Section 340 of Cr. PC. (2) That, prosecution has been initiated without providing opportunity of hearing or issuance of notice to the petitioner before filing the complaint. (3) That, in support, he has placed reliance on- (i) Rajendra Kumar Jain Vs. Shrikant Nigam, 2001 (1) M. P. H. T. 522 = 2001 (2) MPLJ 240 , (ii) Chandra Pal Singh and others Vs. Maharaj Singh and another, (1982) 1 SCC466, (iii) Madras High Court Advocates Association Vs. Dr. A. S. Anand, Honble the CJI and another, (2001) 3 SCC 19 . ( 4. ) PER contra Shri Bharadwaj, the learned Govt. Advocate for the state has submitted that no appeal was preferred by the petitioner which has been prescribed. He has further submitted that as per the provisions of Section 340 of Cr. PC, no notice is required. ( 5. ) THE following observation of the Apex Court in Pritish Vs. State of maharashtra and others, AIR 2002 SC 236 , having similar dispute, is the complete answer of the contentions raised on behalf of the petitioner:- ". . . . . . the Court is not under a legal obligation to afford an opportunity to be heard to claimant/landowner before ordering such prosecution. The scheme underlying Sections 340, 343, 238, 243 of Criminal Procedure Code clearly shows there is no statutory requirement to afford an opportunity of hearing to the persons against whom that Court might file a complaint before the magistrate for initiating prosecution proceedings. Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not. The Court at the stage envisaged in section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not. The Court at the stage envisaged in section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the Court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. Reading of the sub-section (1) of Section 340 makes it clear that the hub of this provision is formation of an opinion by the Court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the Court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should" be held. It is important to notice that even the Court forms such an opinion it is not mandatory that the Court should make a complaint. Section 343 of the Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case if it were instituted on a police report. That being the position, the magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pretrial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and that he is entitled to be discharged. Section 341 of the Code confers a power on the party on whose application the Court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the Court to which the Former court is subordinate. Section 341 of the Code confers a power on the party on whose application the Court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the Court to which the Former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the Court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the Court or the Authorities concerned, to afford an opportunity of hearing to the would be accused. " ( 6. ) THE facts of Rajendra Kumar Jain (supra), are that one application was filed by respondent under Sections 195 and 340 of the Code of Criminal procedure to the effect that the agent of decree-holders had changed the map in the execution proceedings to grab the entire house. Without issuing a notice on the application to the petitioner, evidence was recorded behind his back and complaint was filed against the petitioner for the offence punishable under section 466, 467, 468 and 471 of IPC. On these facts, it was observed that for conducting the enquiry on an application, notice to hear the petitioner was required. The case of Chandra Pal Singh (supra), is based on the provisions of section 195 of Cr. PC, in which it is observed that cognizance of an offence punishable under Section 193 of IPC committed during judicial proceedings, cannot be taken without a written complaint by the Court concerned. As per the facts of the case of Madras High Court Advocates Association (supra), one advocate filed false affidavit in a Writ Petition. In that case, notice to show cause was given to him as to why he should not be prosecuted under Section 193 of IPC. Thus, the facts being different, the observations in these three cases cited by Shri Mishra, does not help his contention. ( 7. ) WHILE dealing with such problems when witnesses became hostile, apex Court in the case of Mishrilal and others Vs. Thus, the facts being different, the observations in these three cases cited by Shri Mishra, does not help his contention. ( 7. ) WHILE dealing with such problems when witnesses became hostile, apex Court in the case of Mishrilal and others Vs. State of M. P. and others, 2005 (4) M. P. H. T. 286 (SC) = (2005) 10 SCC 701 , has observed in Para 6 that:- "the Courts have to follow the procedures strictly and cannot allow a witness to escape the legal action for giving false evidence before the Court on mere explanation that he had given it under the pressure of the police or for some other reason. Whenever the witness speaks falsehood in the Court and it is proved satisfactorily, the Court should take a serious action against such witnesses. " ( 8. ) IN the light of the observation of the Apex Court in the case of pritish (supra), the petition is dismissed.