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Allahabad High Court · body

2008 DIGILAW 2700 (ALL)

RAKESH PATHAK v. STATE OF U. P.

2008-12-17

POONAM SRIVASTAVA

body2008
JUDGMENT Hob’ble Mrs. Poonam Srivastava, J.—List is revised. 2. Heard Sri Prem Prakash and Ms. Akanksha Yadav, learned counsels for the revisionist and learned A.G.A. for the State. 3. The instant revision is directed against the judgment and order dated 7.4.2007 passed by the Additional Sessions Judge/F.T.C. (Court No. 20), Allahabad, in criminal revision No. 861 of 2006, allowing the revision filed by the opposite party No. 2 setting aside the order dated 8.9.2006 of the Additional Chief Judicial Magistrate, Allahabad, directing the Magistrate to decide the application under Section 156 (3), Cr. P.C. afresh moved at the behest of the first informant, which was rejected. 4. Facts of the case are that the revisionist, who is accused in the cross case, filed certain injury report during course of the trial. First informant/opposite party No. 2 instituted an application under Section 156(3), Cr.P.C. before the Magistrate claiming that injury report filed during course of the trial, was fabricated. The Magistrate rejected the application on the ground that since it was evidence filed during course of the trial, this application at the instance of the private complainant is not maintainable. It is for the Court to take cognizance and proceed in accordance with law under Section 340, Cr.P.C. after forming an opinion that evidence adduced in his Court was fabricated. 5. The revision was admitted and notice was issued to the opposite party No. 2 on 18.4.2007. Appearance has been filed on behalf of the opposite party No. 2. No counter affidavit has been filed till date. 6. Submission on behalf of the revisionist is that since the alleged fabricated injury report was filed during course of the trial, it is the Court alone, who was competent to proceed against the accused, who had tried to mislead the Court by adducing fabricated evidence, which has not been done in the instant case, on the contrary an application under Section 156(3), Cr. P.C. was filed, which was rejected. For a ready perusal Section 340, Cr. P.C. is quoted below : “340. P.C. was filed, which was rejected. For a ready perusal Section 340, Cr. P.C. is quoted below : “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 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 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 with the meaning of sub-section (4) of Section 195. (3) A complaint made under this Section shall be signed,— (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court. (4) In this Section, “Court” has the same meaning as in Section 195.” 7. Thus, it is clear that there are two conditions on fulfilment of which a complaint can be filed against a person, who has given a false affidavit or evidence in a proceeding before the Court. (4) In this Section, “Court” has the same meaning as in Section 195.” 7. Thus, it is clear that there are two conditions on fulfilment of which a complaint can be filed against a person, who has given a false affidavit or evidence in a proceeding before the Court. The requirement of these preconditions entitles the Court alone to proceed against the individual, who has given false evidence in a proceeding, if it is brought to the notice of the Court that the evidence is fabricated and false one and the Court is of the opinion that it is expedient in the interest of justice to make an inquiry against such a person in relation to the offence committed by him. The Apex Court has confirmed this view in the case of B.K. Gupta v. Damodar H. Bajaj, 2002 SCC (Cri.) 1103. 8. In the instant case, the opposite party has formed an opinion himself that injury report was fabricated and consequently moved an application under Section 156(3), Cr. P.C. The Magistrate rightly rejected the said application. The revisional Court acted beyond its jurisdiction while setting aside the order of the Magistrate and remanding the matter to the trial Court for afresh decision. 9. After hearing the Counsel for the revisionist at length, I am in agreement with the submission made by the counsel for the revisionist that it is for the Court to proceed against the party, who has adduced evidence during course of the trial, which was forged and fabricated, or with mala fide intention to mislead the Court. This was pre-empt by the opposite party by filing an application under Section 156(3), Cr. P.C. 10. In view of what has been stated above, I am of the considered view that the judgment and order dated 7.4.2007 passed by the Additional Sessions Judge/F.T.C. (Court No. 20), Allahabad, directing the Magistrate to reconsider the matter is without jurisdiction, and is quashed. The instant revision is allowed. 11. However, it will be open for the trial Court, if he so feels that it is a case where necessary steps should be taken against the erring party, he is at liberty to do so, after assessing the evidence and taking all the aspects into consideration. ————