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2013 DIGILAW 447 (CAL)

Tarulata Mondal v. STATE OF WEST BENGAL

2013-07-12

ARUN MISHRA, JOYMALYA BAGCHI

body2013
Judgment :- Joymalya Bagchi, J. A very grave case of impersonation had come to light in the course of this proceeding before the learned Single Judge. The writ petitioner claiming herself to be one Tarulata Mandal, widow of late Tulesh Chandra Mandal, had instituted the writ petition before the learned Single Judge claiming family pension in terms of the Extant Service Rules. In the course of hearing, learned counsel appearing for respondent authorities drew the attention of the learned Single Judge that the writ petitioner was not Tarulata Mandal, as claimed by her, inasmuch as one Tarulata Mandal, widow of late Tulesh Chandra Mandal was already enjoying family pension. Under such circumstances, by order dated 8th January, 2013 the learned Single Judge directed DIG, CID to conduct enquiry and submit a report before the Court. On 30th January, 2013, report was submitted before the learned Single Judge. From the report it appears that one Tarulata Mandal was in fact receiving family pension and that her photograph was affixed in the Pension Payment Order duly attested by the concerned authorities. Report also disclosed that from local enquiry it has come to light that Nirupama Mandal wife of Dilip Mandal was claiming herself as Tarulata Mandal. Faced with such prima facie evidence of perjury and impersonation, learned Single Judge directed the writ petitioner to be present in person. Her voter’s identity card was also produced before the learned Single Judge. The photograph affixed in the said card did not tally with the photograph pasted in the Pension Payment Order. Learned counsel appearing for the petitioner submitted before the learned Single Judge that there was no impersonation and that after the death of her husband Tulesh Chandra Mandal she had married his brother. Such fact, however, did not transpire from the pleadings in the writ petition. Learned Single Judge after considering such defence came to a prima facie finding that there was no full and adequate disclosure as to the identity of the writ petitioner and that she had failed to satisfy the Court as to her identity as claimed in the report. On such prima facie finding the learned Single Judge directed the Registrar General of this Court to refer the matter before the concerned Magistrate for initiating proceeding under Section 340 Cr.P.C. CID West Bengal was also given leave to proceed in the matter in accordance with law. On such prima facie finding the learned Single Judge directed the Registrar General of this Court to refer the matter before the concerned Magistrate for initiating proceeding under Section 340 Cr.P.C. CID West Bengal was also given leave to proceed in the matter in accordance with law. Hearing of the matter was also adjourned sine die. Learned counsel appearing for the appellant/writ petitioner has challenged the order on the ground that the writ petitioner was not heard and that the requisite satisfaction has not been recorded by the learned Judge for initiating proceeding under Section 340 Cr.P.C. in the instant proceeding. He further submitted that the Magistrate had no power to conduct such enquiry. He relied on B.K. Gupta Vs. Damodar H. Bajaj & Ors. (2001) 9 SCC 742 in support of his contention. It appears from the factual matrix of the instant case that the learned Single Judge, in fact, held a preliminary enquiry and heard the learned counsel for the petitioner and thereafter came to a prima facie finding that there was a false declaration by the writ petitioner as to her identity and that she had personated one Tarulata Mandal. It goes without saying that a false declaration as to identity of the petitioner knowingly made on oath is a matter of paramount importance in a lis, particularly, when such identity is a foundational fact on the basis of which relief is claimed. Hence, in the factual backdrop of the case, it appears that initiation of enquiry under Section 340 Cr.P.C. was expedient in the interest of justice. To ignore such blatant attempt to procure relief on the basis of such false declaration as to identity would be a clear travesty of justice. The interest of justice to initiate such proceeding is patent in the factual backdrop and cannot be said to be non-existent. In B.K. Gupta Vs. Damodar H. Bajaj & Ors. (Supra) the apex Court had set aside the direction of the High Court to file complaint against the appellant on the ground that the High Court had not applied its mind to the issue as to whether it is expedient in the interest of justice to initiate such proceeding. In B.K. Gupta Vs. Damodar H. Bajaj & Ors. (Supra) the apex Court had set aside the direction of the High Court to file complaint against the appellant on the ground that the High Court had not applied its mind to the issue as to whether it is expedient in the interest of justice to initiate such proceeding. We are of the opinion that the facts of this case are so patent and glaring that no man of ordinary prudence can contend that it would not be expedient in the interest of justice to initiate proceeding against a person who falsely claimed herself on oath as a widow of a former employee in order to stake her claim for family pension. The cited case is, therefore, clearly distinguishable on facts. On the issue that the petitioner was not heard during the preliminary enquiry held by the learned Single Judge, we find that the same is incorrect inasmuch as the petitioner herself was directed to be personally present and the learned Single Judge gave ample opportunity of hearing to her counsel before coming to the prima face finding. In Pritish Vs. State of Maharashtra & Ors. (2002) 1 SCC 253 the apex Court held that a would be accused need not be heard in the course of such preliminary enquiry under Section 340 Cr.P.C. in the following words: “13. The scheme delineated above would clearly show that 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. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry. 14. 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. 14. 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. In any event appellant has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier. 15. 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. 16. Be it noted that 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. In M.S. Sheriff Vs. State of Madras ( AIR 1954 SC 397 ) a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into”. We are, therefore, of the opinion that the learned Single Judge did not commit any illegality in the manner in which he conducted the preliminary enquiry and came to the requisite satisfaction for initiation of prosecution of the appellant. We are satisfied that adequate preliminary enquiry under Section 340 Cr.P.C. had been conducted by the learned Single Judge. Moreover, the Court holding enquiry under Section 340 Cr.P.C. must be the Court before which the judicial proceeding is pending or its superior or appellate court. Direction to hold further enquiry before learned Magistrate is not warranted. Direction given by the learned Single Judge, therefore, requires some modification. We are also of the prima facie opinion that the appellant writ petitioner may be proceeded against for perjury by knowingly making false statement on oath as to her identity and for intentionally given false evidence in course of judicial proceeding punishable under Section 193 I.P.C. and that it is expedient in the interest of justice to proceed against her. Accordingly, we direct the learned Registrar General to file a complaint in writing enclosing the records of this case before the concerned Magistrate so that such Magistrate may proceed on such complaint under the Code in accordance with law. Needles to mention that the observations made by us in this order are for the purpose of disposal of this case and shall not have any binding effect on the proceedings before the learned Magistrate. The appellant shall be at liberty to take all defences available to her in law in the course of such proceeding. With the aforesaid modification, the order of the learned Single Judge is upheld. Appeal and all connected applications are accordingly dismissed.