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2012 DIGILAW 541 (HP)

Bhola Ram v. State of Himachal Pradesh

2012-09-12

Surinder Singh

body2012
JUDGMENT Surinder Singh, Judge. The appellants felt aggrieved by the order dated 27.9.2011, passed by the learned Sessions Judge in Cr.M.P No. 136 of 2010, whereby the learned Sessions Judge ordered to file a complaint against the appellants in terms of Section 340 of the Code of Criminal Procedure (Code in short) before the Court of learned Chief Judicial Magistrate Kullu, H.P. 2. Facts, shorn of all unnecessary details, can be stated thus. In Sessions trial No. 10 of 2010 four accused were charge-sheeted, tried and acquitted, for the murder of Shri Kali Dass and also under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, with the aid of Section 34 of the Indian Penal Code. Appellant Bhola Ram nephew had lodged FIR and PW2 Mani Ram son of the deceased was a recovery witness. During trial, both of them had turned hostile. The judgment of acquittal was passed on 14.7.2010. 3. Thereafter on 28.8.2010, the learned Public Prosecutor filed a complaint Cr.M.P. No. 136/2010 under Section 340 of the Code against the appellants to take action. The learned Sessions Judge vide impugned order, while allowing the prayer ordered to file complaint against the appellants. 4. The record was sent for. The perusal of the record does not reveal that before proceeding against the appellants whether any show cause notice was issued to them. Appellant Bhola Ram in reply stated that police took advantage of his illiteracy and wrongly recorded the FIR, whereas, Mani Ram took the defence that nothing was recovered in his presence. The police made a concocted story. Thereafter, the learned Sessions Judge appears to have gone through the record file of the main case and vide impugned order decided to prepare the complaint against the appellant to be lodged before the learned Chief Judicial Magistrate, Kullu for adjudication as per law and the appellants were directed to appear before said Court on 20.10.2011. 5. Thereafter, the learned Sessions Judge appears to have gone through the record file of the main case and vide impugned order decided to prepare the complaint against the appellant to be lodged before the learned Chief Judicial Magistrate, Kullu for adjudication as per law and the appellants were directed to appear before said Court on 20.10.2011. 5. The Supreme Court in Narayanswami versus The State of Maharashtra 1971 (2) SCC 182 observed that it is mandatory to the Court to give an opportunity to the witness to show cause against this type of contemplated complaint but as already stated above, the record does not reveal that such a show cause notice for a contemplated enquiry was given and also the learned Sessions Judge did not record the reasons, as required whether it was expedient in the interest of justice to hold an enquiry and proceed against the appellants. Non-recording of such reasons is further held to be not curable. The Court cannot draw presumption under Section 114 of the Evidence Act that the learned Sessions Judge had formed such an opinion. 6. It is also not necessary that every case of perjury, irrespective of the facts and circumstances that would form a subject of enquiry but it is only in such cases where the Courts are of honest belief and opinion, on objective consideration of the facts and circumstances that interest of justice requires the laying of a complaint. 7. In this case the learned Sessions Judge is the successor of the Presiding Officer who had decided the main case and he had no opportunity to note the demeanor of the aforesaid witnesses but otherwise also when the learned Sessions Judge directed to file a complaint against the appellants in that event either he himself or the person authorized in writing could have only filed the complaint before the Chief Judicial Magistrate. 8. Section 195 of the Code of Criminal Procedure prohibits the taking of cognizance by the Court of an offence mentioned therein except on a complaint in writing. 8. Section 195 of the Code of Criminal Procedure prohibits the taking of cognizance by the Court of an offence mentioned therein except on a complaint in writing. In the case on hand, admittedly the learned Sessions Judge had neither recorded his opinion that it was expedient in the interest of justice that an enquiry should be held against the appellants for the offences mentioned in Section 195 (1) (b) of the Code nor any written complaint in terms of the Section aforesaid was made, therefore, no cognizance can be been taken by the learned Chief Judicial Magistrate on the basis of the record transmitted to him. As such, the impugned order as well as further proceedings pending before the learned Chief Judicial Magistrate both are hereby quashed and set aside being not in conformity with law. 9. Consequently, the appeal is allowed. The appellants are discharged of their bail bonds entered upon by them at any time during the proceedings of the case before the Courts below. 10. Send down the records.