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2018 DIGILAW 1401 (JHR)

Kaushik Dutt v. State of Jharkhand

2018-07-03

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : Heard the parties. 2. The appellants have preferred this appeal being aggrieved by the order dated 15.04.2017, passed by the Additional Judicial Commissioner-X, Ranchi, in Probate Case No. 153 of 2012 whereby and where under, the learned court below rejected the petition dated 07.04.2017, which was filed with a prayer for prosecuting the respondent nos.2, 3 and 4 of this appeal. 3. The brief fact of the case is that the respondent no. 2 filed a petition under Section 276 of the Indian Succession Act, 1925 for grant of probate of the will dated 10.01.2001 executed by Late Shyamal Kumar Dutt son of Late Kalipada Dutt and the same was numbered as Probate Case No. 153 of 2012. The respondent nos.2 and 3 of this appeal earlier filed Probate Case No. 128 of 2005 with a prayer of probate of the will dated 12.06.2000 executed by the same person namely Late Shyamal Kumar Dutt son of Late Kalipada Dutt, in respect of the same property. It is the case of the appellants that in paragraph no. 13 of the Probate Case No. 153 of 2012, the respondent no.2 made a categorical averment that the said testator had not left any other will or testamentary document with respect to the properties mentioned in the will dated 10.01.2001. It is the further case of the appellants that the respondent no.2 being one of the petitioners of probate case No. 128 of 2005 was very much aware about the earlier will executed by the said Late Shyamal Kumar Dutt dated 12.06.2000 and she deliberately made false claim in paragraph no.13 of the petition of the Probate Case No. 153 of 2012, thereby, she had committed the offence punishable under Section 209 of the Indian Penal Code. It is the further case of the appellants that the fact that the respondent no.2 was very much aware about the existence of the earlier will dated 12.06.2000 executed by Late Shyamal Kumar Dutt is also apparent from the withdrawal petition of the said Probate Case No.128 of 2005 dated 01.08.2007, a copy of which has been annexed as Annexure-9 of the supplementary affidavit which was filed on 05.09.2017, in this appeal. The appellants further submitted that in her deposition in paragraph no.14 of her examination-in-chief filed in the Probate Case No. 153 of 2012, though the respondent no.2 was very much aware about the existence of another will executed by the same testator Late Shyamal Kumar Dutt, but she deliberately made false statement by stating that it is totally incorrect to contend that the will dated 10.01.2001 made by the testator Late Shyamal Kumar Dutt is not the only and last will of him. It is also the case of the appellants that the respondent no.3-Aniruddha Dutt has also committed offence by making the averment in the show-cause filed by him in the Probate Case No.153 of 2012, a copy of which has been annexed as Annexure-4 of this appeal by making an averment that the testator Late Shyamal Kumar Dutt has not left any other will or testamentary document with respect to the properties mentioned in the will fully described in the Scheduled to the petition. So far as respondent no.4-Indrajit Chakraborty is concerned, the appellants allege that in his deposition in paragraph no.21 of his cross-examination as witness no.1 in Probate Case No. 153 of 2012, he has made a deliberate false statement on oath that he does not know that the Late Shyamal Kumar Dutt has executed the will dated 12.06.2000 even though he is the second attesting witness of the will dated 12.06.2000, which will was sought to be probated in the Probate Case No. 128 of 2005. The facts contended by the appellants in the petition seeking prosecution of the respondents are neither denied nor admitted by the respondents. 4. Learned counsel for the appellants relied upon the judgment of Delhi High Court in the case of RFA 784 of 2010, HS BEDI V. NATIONAL HIGHWAY AUTHORITY OF INDIA dated 22.01.2016, wherein the Hon’ble Delhi High Court considering the scope of Section 209 of the Indian Penal Code after detailed discussion has concluded as under :- “16. Conclusions 16.1 Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. Conclusions 16.1 Section 209 of the Indian Penal Code, is a salutary provision enacted to preserve the sanctity of the Courts and to safeguard the administration of law by deterring the litigants from making the false claims. However, this provision has been seldom invoked by the Courts. The disastrous result of not invoking Section 209 is that the litigants indulge in false claims because of the confidence that no action will be taken. 16.2 Making a false averment in the pleading pollutes the stream of justice. It is an attempt at inviting the Court into passing a wrong judgment and that is why it has been be treated as an offence. 16.3 False evidence in the vast majority of cases springs out of false pleading, and would entirely banish from the Courts if false pleading could be prevented. 16.4 Unless the judicial system protects itself from such wrongdoing by taking cognizance, directed prosecution, and punishing those found guilty, it will be failing in its duty to render justice to the citizens. 16.5 The justice delivery system has to be pure and should be such that the persons who are approaching the Courts must be afraid of making false claims. 16.6 To enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like false claims have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. 16.7 Whenever a false claim is made before a Court, it would be appropriate, in the first instance, to issue a show cause notice to the litigant to show cause as to why a complaint be not made under Section 340 Cr.P.C. for having made a false claim under Section 209 of the Indian Penal Code and a reasonable opportunity be afforded to the litigant to reply to the same. The Court may record the evidence, if considered it necessary. 16.8 If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. The Court may record the evidence, if considered it necessary. 16.8 If the facts are sufficient to return a finding that an offence appears to have been committed and it is expedient in the interests of justice to proceed to make a complaint under Section 340 Cr.P.C., the Court need not order a preliminary inquiry. But if they are not and there is suspicion, albeit a strong one, the Court may order a preliminary inquiry. For that purpose, it can direct the State agency to investigate and file a report along with such other evidence that they are able to gather. 16.9 Before making a complaint under Section 340 Cr.P.C., the Court shall consider whether it is expedient in the interest of justice to make a complaint. 16.10 Once it prima facie appears that an offence under Section 209 IPC has been made out and it is expedient in the interest of justice, the Court should not hesitate to make a complaint under Section 340 Cr.P.C. 17. This Court hopes that the Courts below shall invoke Section 209 of the Indian Penal Code in appropriate cases to prevent the abuse of process of law, secure the ends of justice, keep the path of justice clear of obstructions and give effect to the principles laid down by the Supreme Court in T.Arivandandam v. ToV. Satyapal (supra), S.P. Chengalvaraya Naida v. Jagannath (supra), Dalip Singh v. State of U.P. (supra), Ramrameshwari Devi v. Nirmala Devi (supra), Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy Sahara v. Union of India (supra). Satyapal (supra), S.P. Chengalvaraya Naida v. Jagannath (supra), Dalip Singh v. State of U.P. (supra), Ramrameshwari Devi v. Nirmala Devi (supra), Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria (supra), Kishore Samrite v. State of Uttar Pradesh (supra) and Subrata Roy Sahara v. Union of India (supra). Learned counsel for the appellants further relied upon the judgment of Hon’ble Supreme Court of India in the case of Perumal vs. Janaki reported in (2014) 5 SCC 377 wherein in the facts and circumstances of the case, consequent upon the acquittal of an accused in a case when he filed a complaint under Section 195 Cr.P.C. other than before whom he was prosecuted, praying that the respondent be tried for an offence under Section 193 of the Indian Penal Code and when the Magistrate rejected the prayer by dismissing the complaint of the appellant for the reason that the complaint is not filed by the person contemplated under Section 195 Cr.P.C. and when the alleged matter was challenged before the Supreme Court, the Supreme Court decline to interfere with the matter in exercise of revisional jurisdiction. The Hon’ble Supreme Court has held as under:- “17. But the High Court, in our view, is not justified in confining itself to the examination of the correctness of the order of the Magistrate dismissing the said private complaint. Both Section 195 (1) and Section 340(2) CrPC authorise the exercise of the power conferred under Section 195(1) by any other court to which the court in respect of which the offence is committed is subordinate to. … …” Learned counsel for the appellants next relied upon the judgment of Hon’ble Supreme Court of India in the case of Amarsang Nathji v. Hardik Harshadbhai Patel reported in (2017) 1 SCC 113 wherein the Hon’ble Supreme Court has held as under:- “7. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra). 8. In Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution bench of this Court has gone into the scope of Section 340 CrPC. Para 23 deals with the relevant consideration : (SCC pp. 386-87) “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 be 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 for 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.” Learned counsel for the appellants submitted that the learned court below in the impugned order has only mentioned that there is no forgery committed by the applicants and other witnesses in the court but it has failed to consider whether offences punishable under Section 209 of the Indian Penal Code has been made out in the facts and circumstances of the case or not. Hence, it is submitted that the impugned order be set aside. 5. Learned counsel for the respondents on the other hand defended the impugned order and submitted that since the Probate Case No. 153 of 2012 has already been decided in favour of respondents. Hence, this petition under Section 340 has become infructuous and since this appeal being devoid of any merit be dismissed. 6. Having heard the submission made at the bar and after perusal of the record, I find that the learned court below has failed to consider whether the offence punishable under Section 209 of the Indian Penal Code is made out and that for constituting an offence punishable under section 209 of the Indian Penal Code, commission of forgery is not essential. Accordingly, the impugned order being not sustainable in law is set aside. The matter is remanded back to the court of Additional Judicial Commissioner-X, Ranchi with the direction to pass a fresh order in accordance with law in respect of the petition under Section 340 Cr.P.C. of the appellants after considering whether the offence punishable under Section 209 of the Indian Penal Code is made out in the facts and circumstances of this case, without being prejudice by any of the observation made in this order. Since the impugned order dated 15.04.2017, was passed by the Additional Judicial Commissioner-X, Ranchi, in Probate Case No. 153 of 2012, which case has since been disposed of, hence the court below is directed to assign a new case number to the petition under Section 340 Cr.P.C. of the appellants and to proceed in the matter so far as it relates to the petition dated 07.04.2017 filed under Section 340 Cr.P.C. 7. This appeal is disposed of accordingly.