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Madhya Pradesh High Court · body

2016 DIGILAW 776 (MP)

Ramouti Bai v. State Of M. P.

2016-09-02

C.V.SIRPURKAR

body2016
ORDER : This criminal appeal under section 341 of the Code of Criminal Procedure has been preferred on behalf of the prosecutrix against the observations and directions made in the judgment dated 31-5-2014 passed by Special Judge, Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, in special S.T.No. 04/2015, wherein it was observed that prosecutrix/appellant had deliberately made false statements either before the trial Court or in her statements before the Magistrate under section 164 of the Code of Criminal Procedure; therefore, in exercise of powers under section 340 of the Criminal Procedure Code, it was directed that a complaint be filed in competent Court against the prosecutrix/appellant for the offences punishable under sections 193 and 203 of the Indian Penal Code. 2. The facts necessary for disposal of this appeal may be summarized as hereunder: The appellant/prosecutrix is a women belonging to a Scheduled Tribe. She lodged a first information report in Police against accused Arvind Gurjar to the effect that when she was alone at her hut situated in the field of Kamlesh Gurjar, elder brother of accused Arvind Gurjar, the accused entered the hut and committed rape upon her. He also threatened the prosecutrix to kill her if she disclosed the incident to anyone. Thereafter, during the investigation, the statements of the prosecutrix under sections 161 and 164 of Criminal Procedure Code were recorded by the police and the Judicial Magistrate respectively. Thereafter, final report under section 173(2) of the Criminal Procedure Code was filed and the accused Arvind Gurjar was charged with the offence punishable under sections 450, 376 and 506 of the Indian Penal Code and section 3(2), (5) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. During the trial, the prosecutrix retracted the statements made by her in the FIR and under sections 161 and 164 of the Code of Criminal Procedure. She flatly denied that any such incident had ever occurred or she was subjected to rape as aforesaid. She also denied that she had lodged any such first information report or had given any statements implicating the accused under section 164 of the Code of Criminal Procedure. She flatly denied that any such incident had ever occurred or she was subjected to rape as aforesaid. She also denied that she had lodged any such first information report or had given any statements implicating the accused under section 164 of the Code of Criminal Procedure. Consequently, accused Arvind Gurjar was acquitted of all of the charges; however, learned trial Court observed that the prosecutrix had given false evidence either under section 164 of the Code of Criminal Procedure before the Magistrate or in her statements before the trial Court. Consequently, it was directed under section 340 of the Criminal Procedure Code that a complaint for the offences punishable under sections 193 and 203 of the Indian Penal Code be filed in the competent Court against the prosecutrix on behalf of the Court. In the result, the private complaint, as aforesaid, was filed in the Court of CJM, Harda on 28-6-2014 and was registered for the offences punishable under sections 193 and 203 of the Indian Penal Code. 3. The order directing filing of complaint as aforesaid, has been challenged in this appeal under section 341 of the Code of Criminal Procedure, on the behalf of the prosecutrix/appellant solely on the ground that for making a direction under section 340 of the Code of Criminal Procedure, it is mandatory that the trial Court should record following two findings : a) that an offence referred to in Clause (b) of sub-section (1) of section 195 appears to have been committed in or in relation to a proceeding in that Court and b) that it is expedient in the interest of justice that an inquiry should be made into such offences. 4. 4. In this regard, placing reliance upon the judgment rendered by the Supreme Court in the cases of Mahila Vinod Kumari vs. State of M.P., AIR 2008 SC 2965 and Mohammad Ibrahim vs. B. Rama Rao, AIR 1976 SC 1822 , it has been contended that though the Court has recorded a finding that an offence under sections 193 and 203 of the Indian Penal Code appears to have been committed, no finding that an inquiry into aforesaid offences is expedient in the interest of justice, has been recorded; therefore, the impugned direction for filing the complaint against the prosecutrix dated 31-5-2014 is vitiated; therefore, is liable to be set aside and the proceedings instituted in the Court of Chief Judicial Magistrate, Harda, vide Criminal Case No. 1913/2014 be quashed. 5. Learned Panel Lawyer for the respondent/State on the other hand has supported the impugned direction and the proceedings arising therefrom. 6. After perusal of the record and considering rival contentions the Court is of the opinion that this criminal appeal must succeed for the reasons hereinafter stated : 7. It is true that the Supreme Court has held in the case Mahila Vinod Kumari (supra) that for exercising powers under section 344 of the Code of Criminal Procedure, the Court at the time of delivery of judgment or final order must come to the conclusion that in the interest of justice the witness concerned should be punished summarily by it for the offence which appears to have been committed by such witness; however, it may be noted that the judgment in the case of Mahila Vinod Kumari (supra) was rendered by interpreting the provisions of section 344 of the Code of the Criminal Procedure which provides for summary procedure of trial for giving false evidence by the same Court in which false evidence was given. This provision is separate and distinct from the provision under section 340 of the Code of Criminal Procedure, which envisages filing of a complaint by the Court, wherein the offences of giving false evidence was committed, to the competent Court for trial in accordance with law. This provision is separate and distinct from the provision under section 340 of the Code of Criminal Procedure, which envisages filing of a complaint by the Court, wherein the offences of giving false evidence was committed, to the competent Court for trial in accordance with law. Likewise, in the case of Mohammad Ibrahim (supra), the Supreme Court has held that under section 479-A (of the old Code) not only was it necessary that the Court must form an opinion that witness had intentionally given false evidence, but it is further necessary that the Court must come to the conclusion that for the eradication of the evils of perjury and in the interest of justice, it is expedient that the witness should be prosecuted for the offence which appears to be committed by him. 8. However, the Supreme Court in a recent case in Prem Sagar Manocha vs. State (NCT of Delhi), AIR 2016 SC 290 has observed as follows : “12. Section 340 of Criminal Procedure Code, prior to amendment in 1973, was section 479-A in the 1898 Code and it was mandatory under the pre-amended provision to record a finding after the preliminary inquiry regarding the commission of offence; whereas in the 1973 Code, the expression ‘shall’ has been substituted by ‘may’ meaning thereby that under 1973 Code, it is not mandatory that the Court should record a finding. What is now required is only recording the finding of the preliminary inquiry which is meant only to form an opinion of the Court, and that too, opinion on an offence ‘which appears to have been committed’, as to whether the same should be duly inquired into. We are unable to appreciate the submission made by the learned Senior Counsel that the impugned order is liable to be quashed on the only ground that there is no finding recorded by the Court on the commission of the offence. We are unable to appreciate the submission made by the learned Senior Counsel that the impugned order is liable to be quashed on the only ground that there is no finding recorded by the Court on the commission of the offence. Reliance placed on Har Gobind vs. State of Haryana is of no assistance to the appellant since it was a case falling on the interpretation of the pre-amended provision of the Criminal Procedure Code A three-Judge Bench of this Court in Pritish vs. State of Maharashtra has even gone to the extent of holding that the proceedings under section 340 of Criminal Procedure Code can be successfully invoked even without a preliminary inquiry since the whole purpose of the inquiry is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.” 9. In the case of Prem Sagar Manocha (supra), the Supreme Court had placed reliance upon a three Judge Bench of the Supreme Court in the case of Pritish vs. State of Maharashtra and others, AIR 2002 SC 236 , wherein it was held that : “8. Chapter XXVI of the Code contains provisions “as to offences affecting the administration of justice”. Among the 12 sections subsumed therein we need consider only three. Section 340 consists of four sub-sections of which only the first sub-section is relevant for the purpose of this case. Chapter XXVI of the Code contains provisions “as to offences affecting the administration of justice”. Among the 12 sections subsumed therein we need consider only three. Section 340 consists of four sub-sections of which only the first sub-section is relevant for the purpose of this case. Hence the said sub-section is extracted below : “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 of 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.” 9. Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the Court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the Court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the Court can form such an opinion when it appears to the Court that an offence has been committed in relation to a proceeding in that Court. It is important to notice that even when the Court forms such an opinion it is not mandatory that the Court should make a complaint. This sub-section has conferred a power on the Court to do so. It does not mean that the Court should, as a matter of course, make a complaint. It is important to notice that even when the Court forms such an opinion it is not mandatory that the Court should make a complaint. This sub-section has conferred a power on the Court to do so. It does not mean that the Court should, as a matter of course, make a complaint. But once the Court decides to do so, then the Court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the Court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the Court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the Court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the Court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.” 10. From a cumulative reading of the judgments rendered by the Supreme Court in the cases of Pritish and Prem Sagar Manocha (supra), following propositions of law may be culled out with regard to invocation of the powers under section 340 of the Code of Criminal Procedure : a) The power under section 340 may be exercised by the Court either upon an application made to it in this behalf or suo moto. b) The Court must form an opinion that any offence referred to in Clause (b) of sub-section (1) of section 195 of Indian Penal Code 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. c) The Court must also form an opinion that it is expedient in the interest of justice that an inquiry should be made in such offence. d) For the purpose of forming aforesaid opinion, the Court may hold a preliminary inquiry, though holding such preliminary inquiry is not mandatory. c) The Court must also form an opinion that it is expedient in the interest of justice that an inquiry should be made in such offence. d) For the purpose of forming aforesaid opinion, the Court may hold a preliminary inquiry, though holding such preliminary inquiry is not mandatory. e) Where the Court is of the opinion that an offence in Clause (b) of sub-section (1) of section 195 has been committed and it is expedient in the interest of justice that an inquiry should be made into such offence, it shall record finding to that effect before making a complaint in writing and sending it to Magistrate of First Class having jurisdiction. 11. Thus, as observed in paragraph No. 9, the judgment in the case of Prem Sagar Manocha (supra), the hub of this provision is forming of an opinion by the Court (before which the proceedings were held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. For forming such an opinion; though, the Court is empowered to hold a preliminary inquiry but the opinion can be formed even without a preliminary inquiry. However, mere forming of opinion that the inquiry into the offence is expedient in the interest of justice, with or without a preliminary inquiry, is not enough. The Court must also explicitly record a finding to that effect in its order before directing that complaint in this regard be lodged. Thus, discretion of the Court lies in (1) either making or not making the complaint and (2) either holding or not holding a preliminary inquiry for reaching requisite conclusions. It does not lie in recoding or not recording requisite findings. 12. Reverting back to the facts of the case at hand, it may be noted that though learned trial Court had recorded a finding that offence under section 193 appears to have been committed; however, there is no indication in the impugned order of application of mind on the question as to whether or not filing of complaint for such offence against the prosecutrix was expedient in the interest of justice. This question was particularly relevant in the context of the present case because the prosecutrix is an illiterate and rustic villager belonging to a Scheduled Tribe. This question was particularly relevant in the context of the present case because the prosecutrix is an illiterate and rustic villager belonging to a Scheduled Tribe. However, this aspect of the matter seems to have completely escaped the attention of learned trial Judge. In the absence of a finding to the effect that an inquiry into the offence is expedient in the interest of justice, the direction to file a complaint for the offence under section 193 of the Indian Penal Code is vitiated and is liable to be set aside. Consequently, the proceedings instituted on such complaint is also liable to be quashed. 13. In aforesaid circumstances, this appeal under section 341 of the Code of Criminal Procedure succeeds. The direction for filing complaint for offences under sections 193 and 203 of the Indian Penal Code against the prosecutrix made in the judgment dated 31-5-2014 passed in special Sessions Trial No. 04/2014 by Additional Sessions Judge and Special Judge, Harda is hereby set aside and the proceedings in Criminal Case No. 1913/2014 instituted thereon, are quashed.