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2014 DIGILAW 52 (CAL)

Satya Sandhi v. Subir Ganguly

2014-01-22

ARUN MISHRA, JOYMALYA BAGCHI

body2014
Judgment : The Court: This application has been filed, inter alia, for a direction upon the Registrar and/or suitable officer of High Court, Calcutta to take effective steps for filing an application under section 340 Cr.P.C. for commission of offence punishable under sections 199 and 209 read with section 120B of the Indian Penal Code by one Subir Ganguly, Honorary Joint Secretary of Cricket Association of Bengal. It appears that by judgment and order dated 9th October, 2013 the intra court appeal was disposed of directing the Registrar of Society Non Trading Corporation to take a decision after giving an opportunity of hearing to all concerned, including the appellant, and to examine the question of maintainability of the concerned application and pass a reasoned order thereon. By the said order all connected applications were disposed of. It appears that one of such connected applications was G.A. 3151 of 2013 wherein similar prayer had been made under section 340 Cr.P.C. for institution of criminal proceeding under sections 199 and 209 read with section 120B of the Indian Penal Code against the said Subir Ganguly. In the present application the writ petitioner/applicant has renewed such prayer. Learned counsel appearing for the writ petitioner/applicant submitted that the present application has been filed seeking consequential relief as his earlier application had been allowed. He further submitted that the averments made in paragraph 3 of the stay application being G.A. No. 3105 filed on behalf of the appellant, Cricket Association of Bengal, inter alia, averring that application was filed at the behest of another group of the writ petitioner/applicant and the averments made in paragraph 9 of the said application claiming that the writ petitioner/applicant is a continuation of an earlier society having its address 11 Jatin Mitra Lane, Kolkata are out and out false and necessary direction for initiation of proceeding under section 340 Cr.P.C. be issued in that regard. He relied on AIR 2000 SC 544 (Randhir Singh Vs. State of Haryana & Anr) and AIR 2000 SC 2017 (Swaran Singh Vs. State of Punjab). Mr. Kar, learned advocate appearing for the appellant/CAB submitted that the present application is misconceived and as such prayer was not pressed at the time of disposal of the appeal. He further submitted that the present application is an attempt to review the earlier order and not maintainable. Mr. State of Punjab). Mr. Kar, learned advocate appearing for the appellant/CAB submitted that the present application is misconceived and as such prayer was not pressed at the time of disposal of the appeal. He further submitted that the present application is an attempt to review the earlier order and not maintainable. Mr. Singh, learned advocate appearing for the intervenor/Satya Sandhi submitted that similar prayer has been made by the writ petitioner/applicant before the Civil Court which is pending consideration. In rebuttal, Mr. Bhattacharyya, learned advocate submitted that the application in the Civil Court was independent of the present application praying for prosecution of a different person. We have heard the submissions of the parties and given our anxious consideration thereto. A perusal of our earlier order dated 9th October, 2013 clearly manifests that writ petitioner/respondent no. 1 did not press the application for initiation of proceeding under section 340 Cr.P.C. application being G.A. No. 3151 of 2013 at the time of disposal of the appeal. Accordingly, the application was disposed along with appeal without making any order thereon. We have been informed from the bar that no appeal has been preferred against our earlier order. Hence, the present application seeking to revive the prayer contained in the earlier application (G.A. No. 3151 of 2013) which was not pressed at the time of disposal of the appeal is clearly misconceived and liable to be dismissed on that score alone. That apart, initiation of proceeding under section 340 Cr.P.C. is not a matter of course and must be resorted to such exceptional cases where the allegations of perjury are stork and patent and invocation of such jurisdiction is warranted for the ends of justice. In Chajoo Ram Vs. Radhey Shyam & Anr., AIR 1971 SC 1367 , the Apex Court held as follows : “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. 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 interest 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.” (emphasis added) In Iqbal Singh Marwah & Anr. V. Meenakshi Marwah & Anr., AIR 2005 SC 2119 , the Apex Court observed : “In view of the language used in Section 340 Cr.P.C. the court is not but 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….” [See also: R.S. Sujatha v. State of Karnataka & Ors., (2011) 5 SCC 689 ]. From the aforesaid ratios it can be safely be summarized that initiation of prosecution for perjury may be made only after the Court reaches a prima facie conclusion that there is a deliberate and conscious effort to mislead the Court and interfere in the administration of justice and such prosecution is necessary in the interest of justice. From the aforesaid ratios it can be safely be summarized that initiation of prosecution for perjury may be made only after the Court reaches a prima facie conclusion that there is a deliberate and conscious effort to mislead the Court and interfere in the administration of justice and such prosecution is necessary in the interest of justice. The averments made in paragraphs 3 and 5 of the stay application (G.A. No. 3105 of 2013) preferred by the appellant CAB before us are in the nature of contentions raised by the appellants in support of its case. It may be or may not be true. In view of the fact that this Court did not record any conclusive finding thereto at the time of disposal of the appeal and relegated the parties for adjudication of all claims before the concerned statutory authority in our considered opinion it would not enure to the interest of justice to embark on an enquiry as to examine the issue of perjury on the basis of the bald allegations of the writ petitioner/applicant. In Swaran Singh Vs. State of Punjab, AIR 2000 SC 2017 , the Apex Court after a full fledged criminal trial had come to a conclusion that the witness had perjured and had sounded a note of warning against such pernicious practices at the behest of unscrupulous lawyers and slavish State machinery. In Randhir Singh Vs. State of Haryana & Anr, AIR 2000 SC 554, the Apex Court held that initiation of proceeding under section 340 Cr.P.C. was a condition precedent for commencement of trial of perjury. The facts in the former case are substantially different from the present one and issue decided in the latter one has not been disputed in the facts of this case. Hence, the aforesaid authorities relied on by the writ petitioner/ applicant are not of any assistance to him. For the aforesaid reasons, we are of the opinion that the present application is wholly misconceived and is liable to be dismissed.