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2012 DIGILAW 232 (HP)

Jagannath v. Ram Lal Sharma

2012-04-30

KULDIP SINGH

body2012
JUDGMENT : Kuldip Singh, J. This revision has been filed against judgement dated 30.11.2011 in Criminal Appeal No. 21 of 2011 passed by learned Additional Sessions Judge, Fast Track, Kullu affirming order dated 5.2.2011 passed by learned Chief Judicial Magistrate, Kullu in Cr.MA No. 173-IV of 2009. 2. The facts in brief are that petitioner had filed an application under section 340 Cr.P.C. for prosecution of respondent for offence, punishable under sections 191, 193 IPC. It has been alleged that respondent was the Secretary of Sanatan Dharam Sabha Kullu. The Sanatan Dharam Sabha had filed a suit for declaration, which was dismissed by the learned Civil Judge (Senior Division), Kullu on 30.6.2008. The appeal was pending in the court of District Judge, Kullu. The respondent appeared as witness of Sanatan Dharam Sabha on 12.10.2007 and denied the suggestion that resolution No. 2 was tampered with and interpolated that Jai Ram has been appointed as Sub Manager. Thereafter the respondent has asserted in his deposition that accused had communicated the dismissal of Jai Ram from the post of Sub Manager through a registered letter dated 25.3.1961. He denied the suggestion that resolution Ex. PW 3/A was tampered and inserted the words that "Jai Ram was appointed as Dy. Manager". 3. The respondent knew that Jai Ram had never been appointed as Dy. Manager of Sabha, the respondent further falsely deposed that one 2 storeyed slate roofed building on the disputed land was constructed after the filing of civil suit by Sabha. He denied the existence of second house on the suit land knowing fully well that there were two houses on the suit land at the time when respondent made statement under oath before the Civil Judge (Senior Division), Kullu. The respondent denied the possession of `Dak register', cash book with intention to defeat the claim of petitioner. The respondent has no record of letter dated 30.7.1964 bearing letter No. 659/64/PTK mark-C in the civil suit, which was sent by the petitioner to Sabha. The respondent knowingly gave false statement. 4. The inquiry was held, the petitioner gave his statement, several documents were taken on record during inquiry. The learned Chief Judicial Magistrate has held that there is no mention in the judgement that respondent had deposed falsely. The learned Chief Judicial Magistrate dismissed the complaint on 5.2.2011. The respondent knowingly gave false statement. 4. The inquiry was held, the petitioner gave his statement, several documents were taken on record during inquiry. The learned Chief Judicial Magistrate has held that there is no mention in the judgement that respondent had deposed falsely. The learned Chief Judicial Magistrate dismissed the complaint on 5.2.2011. In appeal, the learned Additional Sessions Judge, has held that suit of Sanatan Dharam Sabha has been dismissed by the court and now the lis is pending in regular second appeal in the High Court as per statement made by the learned counsel for the petitioner at bar. The trial court did not find any fault in the statement made by the Secretary Sanatan Dharam Sabha. It has been held that it is difficult for the appellate court or the trial court to arrive at the conclusion that it is expedient in the interest of justice to inquire into the offence. The learned Additional Sessions Judge dismissed the appeal on 30.11.2011. In this way, the matter has come in revision. 5. Heard. The learned counsel for the petitioner has submitted that two courts below have erred in dismissing the application of the petitioner under section 340 Cr.P.C. for proceeding against the respondent. It has been submitted that in case the court is not inclined to interfere then the revision may be heard along with regular second appeal, which is pending in the High Court which has arisen out of the suit decided on 30.6.2008. The learned counsel for the respondent has supported the impugned judgement. He has submitted that the present revision has arisen out of the proceedings started by the petitioner by filing section 340 Cr.P.C. application in the court below. It is for the court who decides the case to proceed or not to proceed for perjury. The application under section 340 Cr.P.C. was filed by the petitioner when the case had already been decided, therefore, foundation of the application, under section 340 Cr.P.C. is wrong and no purpose will be served by tagging the present revision with regular second appeal file. 6. The application under section 340 Cr.P.C. was filed by the petitioner when the case had already been decided, therefore, foundation of the application, under section 340 Cr.P.C. is wrong and no purpose will be served by tagging the present revision with regular second appeal file. 6. The sub-section (1) of section 340 of Code of Criminal Procedure 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 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 for 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. The sub-section (2) of section 340 of the Code of Criminal Procedure provides that 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 within the meaning of sub-section (4) of section 195. 7. The Civil Suit No. 147/93(182/2000) Sanatan Dharam Sabha v. Jagan Nathwas dismissed by learned Civil Judge (Senior Division), Kullu on 30.6.2008. The application under Section 340 Cr.P.C. was filed in the Court of learned Chief Judicial Magistrate, Kullu on 29.4.2009. In the application grievance has been raised by the petitioner against respondent regarding conduct of the respondent in Civil Suit No. 147/93 (182/2000). The application under Section 340 Cr.P.C. was filed in the Court of learned Chief Judicial Magistrate, Kullu on 29.4.2009. In the application grievance has been raised by the petitioner against respondent regarding conduct of the respondent in Civil Suit No. 147/93 (182/2000). In fact, the application was filed when the appeal arising out of judgment, decree dated 30.6.2008 was pending in the Court of learned District Judge, Kullu. It has been stated by the learned counsel for the parties that the learned District Judge has also decided the appeal and now the matter is pending in the High Court in Regular Second Appeal. 8. In K.T.M.S. Mohd. and another v. Union of India (1992) 3 SCC 178 , the Supreme Court has noticed Section 340 of the Code and has held that this Section confers an inherent power on a court to make a complaint in respect of an offence 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, if that court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1) of Section 195 and authorizes such court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words "in or in relation to a proceeding in that court" show that the court which can take action under this section is only the court operating within the definition of Section 195 (3) before which or in relation to whose proceeding the offence has been committed. 9. In Lakhan Lal Saraf v. Moti Lal 2008 Cri. L.J.1714 first appeal at the instance of the respondent/defendant was pending in the High Court when the petition under Section 340 of the Code was filed before the District Judge. It has been held that due to pendency of first appeal before the High Court, the learned District Judge could not have entertained and commenced the enquiry on a petition under Section 340 of the Code by the respondent/defendant. It has been held that due to pendency of first appeal before the High Court, the learned District Judge could not have entertained and commenced the enquiry on a petition under Section 340 of the Code by the respondent/defendant. There is nothing on record to show that in the judgment dated 30.6.2008 the trial Court has observed that respondent has committed some illegality as alleged by the petitioner in the complaint under Section 340 Cr.P.C. There is also nothing on record to show that the learned trial Court at any point of time has observed during trial regarding the conduct of the respondent that in the interest of justice it is expedient to try him for any misconduct. 10. The application under Section 340 Cr.P.C. was filed after the decision of the suit when first appeal was pending before the learned District Judge. Now that very matter has come in Regular Second Appeal as stated by the learned counsel for the parties. In these circumstances, the application under Section 340 Cr.P.C. filed by the petitioner before the trial Court itself was not maintainable. The present revision is the continuation of the proceedings initiated by the petitioner by filing application under Section 340 Cr.P.C. Therefore, no purpose will be served by hearing the present revision along with Regular Second Appeal arising out of the suit and stated to be pending in the High Court as the application out of which the present revision has arisen is not maintainable. There is no merit in the revision. 11. In view of above, the revision fails and is accordingly dismissed.