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2014 DIGILAW 456 (CHH)

Ratanlal Agrawal v. Sunil Sarawgi

2014-12-12

PRASHANT KUMAR MISHRA

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JUDGMENT PRASHANT KUMAR MISHRA, J. 1. This criminal appeal under Section 341 CrPC was earlier filed as criminal revision under Section 397 read with Section 401 of the CrPC. However, subsequently appellant's application for conversion of revision into an appeal was allowed and it was re-registered as criminal appeal. 2. Challenge in this appeal is to the order dated 23.5.2000 passed by the Additional Sessions Judge and Special Judge under the SC/ST (Prevention of Atrocities) Act, 1989, Bilaspur whereby learned Court below has allowed the application filed by respondent No.1 under Section 340 CrPC and has directed the CJM, Bilaspur to file a complaint against the appellant for offence under Section 193 read with Section 195 of the IPC. Pursuant to the said order, the CJM, Bilaspur has filed the complaint on 28.6.2012. 3. Facts of the case, briefly stated, are that the appellant is an Advocate of Income Tax at Gondia (Maharashtra). His daughter was married with respondent No.1 in December, 1992. On allegation of commission of cruelty by respondent No.1 and his family members, his daughter Uma committed suicide by consuming poisonous substance on 6.4.1995. An offence under Section 306 read with Section 498A of the IPC was registered against respondent No.1 by City Kotwali Police, Bilaspur and was arrested on 10.4.1995. He was subsequently released on bail. 4. Respondent No.1 and his family members were allegedly threatening the appellant and his family members namely, Ramakant Agrawal, Gajadhar Agrawal and Ramnarayan Agrawal for withdrawing the case and compounding the matter. The appellant filed an application under Section 25 of the Hindu Marriage Act for recovery of 'Stridhan'. Notices were issued to respondents Sanat Kumar and Pushpa Devi. In course of service of summons, Sanat Kumar Sarawgi, father of the respondent No.1, abused and threatened the appellant and his son. The threatening continued even after their return and the respondent No.1 exerted pressure upon the appellant to withdraw the criminal case. 5. The appellant moved an application (Annexure-4) under Section 439 (2) of the CrPC for cancellation of bail granted to the respondent No.1 on the ground that he is threatening the witnesses. The application was supported with affidavit of the appellant, his family members Ramnarayan Agrawal, his son Ramakant Agrawal and Gajadhar Agrawal. The application was eventually dismissed on 6.11.1995 (Annexure-9). In this order, the Sessions Judge observed that affidavit filed by the appellant is false. 6. The application was supported with affidavit of the appellant, his family members Ramnarayan Agrawal, his son Ramakant Agrawal and Gajadhar Agrawal. The application was eventually dismissed on 6.11.1995 (Annexure-9). In this order, the Sessions Judge observed that affidavit filed by the appellant is false. 6. Respondent No.1 thereafter moved an application under Section 193 read with Section 195/34 of the IPC for registration of offence against the appellant. By judgment dated 5.4.1999, the Special Judge (Atrocities) Bilaspur convicted the respondent No.1 for committing offence under Sections 498A and 306 of the IPC. Criminal Appeal No.1029/99 preferred by respondent No.1 challenging his conviction was allowed by this Court on 20.8.2010. The appellant has filed SLP(Cr) No.2284/2013 challenging the acquittal and the said SLP is pending consideration. The parties have reached Memorandum of Understanding (MoU)/Settlement wherein the appellant has agreed to withdraw SLP after finalization of the present appeal, which was earlier registered as Criminal Revision No.761/2000. A copy of MoU has been filed as Annexure-A/1 along with an application for urgent hearing moved by respondent No.1 supported with his affidavit. 7. Shri Bhaduri, learned counsel for the appellant would submit that the affidavit filed along with an application for cancellation of bail was not moved with an intent to use it as false evidence or to secure conviction of respondent No.1. Therefore, the impugned order deserves to be set aside. He would further submit that the parties being in litigation for the last about more than 19 years and they having entered into MoU/settlement, the impugned order deserves to be set aside in the interest of justice. 8. On the other hand, Shri Verma, learned Senior Counsel appearing for respondent No.1 would submit that in view of MoU/settlement between the parties, he has instructions not to oppose the appeal. 9. Heard learned counsel for the parties at length and perused the record. 10. The question falling for determination is – whether the act of the appellant in filing an affidavit in support of application for cancellation of bail would be sufficient enough for initiation of proceeding for perjury even though the bail was not cancelled on that application as also for the fact that more than 19 years have elapsed after the said incident of filing of application for cancellation of bail ? 11. 11. In the affidavit (Annexure-5), the appellant had stated that after his release on bail, respondent No.1 threatened him and his family members of dire consequences if they stood witness in the Court and that when he had accompanied the process server for service of summons on respondent No.1, his father Sanat Kumar Sarawgi who was present in the house also threatened of dire consequences. He also stated that the appellant may not be able to reach back to Gondia and if something happens to his son i.e. respondent No.1 Sunil Kumar Sarawgi, the appellant and his family may not remain alive. 12. While hearing prayer for cancellation of bail and on appreciation of obtaining facts, the Sessions Court observed that since summons of the suit instituted by the appellant in a Gondia Court were served on Sanat Kumar Sarawgi at his residence at Dayalband, Bilaspur, the contents of the affidavit of the appellant are found untrue. In the later part, the Court concluded that the affidavit is false. While recording the finding, the Sessions Court did not examine the process server with whom the appellant had allegedly accompanied for service of summons on Sanat Kumar Sarawgi at his Dayalband residence on 29.6.1995. The Court was impressed with the fact that in the affidavit, the appellant had stated that summons were served on Sanat Kumar Sarawgi in the Bilaspur Court premises where threatening was given, whereas as per the process server report, summons were served on Sanat Kumar Sarawgi at his residence at Dayalband. 13. Be that as it may, there is no finding by the Sessions Court, while hearing application for cancellation of bail granted to respondent No.1, that the contents of affidavit, qua respondent No.1 were false. Indisputably, the application was not filed against Sanat Kumar Sarawgi but it was filed against respondent No.1. Therefore, any false statement with respect to father of respondent No.1 was otherwise not sufficient for cancellation of bail granted to respondent No.1. There is no finding by the Sessions Court that the statement made in the affidavit concerning respondent No.1 was false. 14. The offence under Section 193 read with Section 195 of the IPC is contained in Chapter-XI of the IPC which deals with offences regarding false evidence and offences against the public justice. There is no finding by the Sessions Court that the statement made in the affidavit concerning respondent No.1 was false. 14. The offence under Section 193 read with Section 195 of the IPC is contained in Chapter-XI of the IPC which deals with offences regarding false evidence and offences against the public justice. Section 193 of the IPC provides for punishment for false evidence whereas Section 195 of the IPC provides for giving or fabricating false evidence with intent to procure conviction of offence punishable with imprisonment for life or imprisonment. The procedure prescribed for making a complaint for offence under Section 195 of the IPC has been provided under Section 340 of the CrPC which is the part of Chapter-XXVI containing provisions as to the offences affecting administration of justice. Before lodging a complaint under Section 340 CrPC, the Court has to form an opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195 of the IPC and after such preliminary enquiry, if the Court thinks necessary, it shall record a finding and make a complaint. 15. The question as to when the Court should make a complaint has been dealt with by the Supreme Court in Chajoo Ram Vs. Radhey Shyam and another, 1971 (1) SCC 774 . The Supreme Court held in para-7 thus:- “7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is expedient in the interests of justice to file a complaint. The approach of the High Court seems some- what mechanical and superficial: it does not reflect the requisite judicial deliberation: it seems to have ignored the fact that the appellant was a Panch and authorised to act as such and his explanation was not implausible. The High Court further appears to have failed to give requisite weight to the order of the District Magistrate which was confirmed by the Sessions Judge, in which it was considered inexpedient to initiate prosecution on the charge of alleged false affidavit that the appellant had not acted as Sarpanch during the period of the stay order. The subject-matter of the charge before the District Magistrate was substantially the same as in the present case. Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject-matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against expediency of prosecution. And then by reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed.” 16. In Chajoo Ram (Supra), the Supreme Court also observed that the question of long lapse of time of more than 10 years since filing of the affidavit is not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. This aspect was again considered by the Supreme Court in K.N. Mishra Vs. Jiwaji University, Gwalior, 1980 (Supp) SCC 415 and yet again the Supreme Court observed that it may not be appropriate to make a complaint because the matter was about 10 years old. 17. This aspect was again considered by the Supreme Court in K.N. Mishra Vs. Jiwaji University, Gwalior, 1980 (Supp) SCC 415 and yet again the Supreme Court observed that it may not be appropriate to make a complaint because the matter was about 10 years old. 17. In Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another, (2005) 4 SCC 370 , the Supreme Court held in para-23 thus:- “23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.” 18. The broad view of clause (b), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.” 18. On the basis of law laid down by the Supreme Court and the facts of the case at hand, the following would emerge:- (a) the affidavit was filed on 10.7.1995; thus more than 19 years have elapsed after filing of the affidavit. (b) while considering the appellant's prayer for cancellation of bail and his affidavit, the Sessions Court did not record a finding that the statement made in the affidavit qua respondent No.1 was false, although it was observed by the Sessions Court that the statement made qua father of respondent No.1 was false. Thus, there is no finding that because of any statement made qua respondent No.1, his bail was cancelled or affidavit was made to secure his conviction. Ordinarily, the bail is cancelled when the accused has threatened the complainant or his family members. When such threatening is given by any other person, may be relative of the accused, the accused is ordinarily not punished by canceling his bail. (c) While allowing the application under Section 340 CrPC, there is no observation that “it is expedient in the interest of justice” that a complaint should be made against the appellant. In Chajoo Ram and Iqbal Singh Marwah (Supra), it has been held by the Supreme Court that powers under Section 340 CrPC should not be readily exercised by the Court. (d) If the complainant or his/her relative is prosecuted for committing perjury, merely on the basis of some incorrect or false statement in the affidavit or in the affidavit in support of application for cancellation of bail, then in such cases despite discreet threatening being given by the accused who is enlarged on bail, the complainant would not dare to move application for cancellation of bail, therefore, in such matters, exercise of powers under Section 340 CrPC should not be resorted to on mere asking and without there being any finding that “it is expedient in the interest of justice”. (e) The parties have already entered into MoU/settlement with one of the conditions that after finalization of the present appeal, steps would be taken to withdraw the pending SLP before the Supreme Court. 19. For the foregoing, this Court is of the opinion that the Court below committed serious error in allowing the application under Section 340 CrPC and directing lodging of complaint against the appellant. Accordingly, the appeal is allowed. The impugned order is set aside. Consequently, the complaint subsequently filed before the CJM is also quashed.