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2018 DIGILAW 742 (JHR)

Dilip Kumar v. State Of Jharkhand

2018-04-03

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. - Heard the parties. 2. The appellant has preferred this appeal being aggrieved by the order dated 26.04.2017 passed by the learned Additional Sessions Judge-III, Ramgarh in S.T. Case No.279 of 2014 whereby and whereunder, his petition under Section 340 Cr.P.C., 1973 has been rejected by the learned court below. 3. The brief facts of the case are that the appellant is not a party to the Sessions Trial No.279 of 2014. Sessions Trial No.279 of 2014 arose out of complaint case No.19 of 2007. The appellant is neither the complainant of the said complaint case nor has been cited as a witness in that complaint. The name of the appellant does not appear in the complaint of complaint case no.19 of 2007. A petition under Section 231 Cr.P.C., 1973 was filed in Session Trial No.279 of 2014 on behalf of the prosecution with a prayer for issue of summon to Dr. A.N. Minj, Sr. M.O. of C.W.S. Hospital, N.T.S. Barkakana for his evidence and production of original injury reports as to the injury sustained by Satyadeo Ram Dangi and his mother namely, Bindi Devi in that case. The respondent no.2 who is an accused in Sessions Trial No.279 of 2014 filed a counter to the said petition filed under Section 231 Cr.P.C., 1973 on behalf of prosecution on 18.03.2015. The grievance of the appellant herein is that in the said counter the respondent no.2 of this appeal has made false averments. The averments made in the counter and how they are false as asserted by the appellant herein , in the learned court below is as under :- (i) In paragraph no.4 it was averred by the respondent no.2 "on perusal of the complaint petition, it would be apparent that no injury report of any injured was filed in the complaint petition". In respect of this averment made in the counter of the accused-respondent no. 2 herein, the grievance of the appellant is that the same is not a fact because it has been mentioned in sub-paragraph of paragraph no.14 of the complaint that "a photocopy of the injury report is attached herewith". (ii) The second grievance of the appellant is that in the second sentence of paragraph no.4 of the said counter, it has been mentioned that "Matter of fact is that the learned lower court has already issued summon to Dr. (ii) The second grievance of the appellant is that in the second sentence of paragraph no.4 of the said counter, it has been mentioned that "Matter of fact is that the learned lower court has already issued summon to Dr. A.N. Minz to produce the injury report" and the grievance of the appellant is that this is ipso-facto false as the case record does not show that summon has been issued to Dr. A.N. Minz. (iii) The third grievance of the appellant is that in paragraph no.4, it has also been averred that "The complainant''s father was an employee of the said hospital and in collusion with him the complainant manufactured fake and fabricated injury reports". The grievance of the appellant in respect of these averments is that the father of the complainant was not an employee of the said hospital and the said injury reports have already been sent by the I.O. along with the case diary in S.T. Case No.132 of 2007 and in the instant case also the said injury reports have been directed to be called for vide the order of the Sessions Judge-Hazaribag in criminal revision no.127 of 2013 vide order dated 30.08.2013. (iv) The fourth grievance of the appellant is that in paragraph no.5 of the said counter, it has been averred by the respondent no.2 of this appeal that "the complainant''s intention is only to harass the accused persons as some of the accused persons are charge-sheet witness in S.T. Case No.132 of 2007" which according to the appellant is false in view of the fact that the prosecution filed a petition under Section 231 Cr.P.C., 1973 in compliance of the order dated 20.04.2013 of complaint case no.19 of 2007 by which the learned S.D.J.M., Hazaribagh has passed the order to call for the injury report of the complainant only and did not allow the prayer for calling for the injury report of the mother of the complainant and also the order dated 30.08.2013 passed in criminal revision No.127 of 2013. 4. 4. Learned court below firstly came to a conclusion that since the rejoinder of the accused person which was not even verified on oath does not come under the purview of evidence or declaration and is not of such nature that it can be termed "by law receivable as evidence" and also does not come under the purview of "false claim" hence, according to the learned trial court the petition of the appellant filed under Section 340 Cr.P.C., 1973 was not maintainable. 5. Secondly, the learned court below also came to a conclusion that the appellant has no right to file a petition of this nature as he is a stranger to the proceeding and has not been permitted by the court to appear on behalf of the prosecution. Further learned Public Prosecutor has also not permitted the appellant to appear on his behalf in the case. In this respect, the learned trial court has relied upon the judgment of Hon''ble Supreme Court of India in the case of Shiv Kumar v. Hukum Chand (1999) 7 SCC 467 wherein, the Hon''ble Supreme Court has held that the prosecution in a Sessions Court cannot be conducted by anyone other than the Public Prosecutor. If the role of Public Prosecutor is allowed to shrink to mere supervisory, the trial would become a combat between the private party and the accused which would render futile the legislative mandate in section 225 of Cr.P.C , 1973and rejected the said petition. 6. The appellant who appeared in person relied upon the judgment of Hon''ble Supreme Court in the case of N. Natarajan v. K. Subba Rao reported in AIR 2003 SC 541 wherein the Hon''ble Supreme Court in paragraph no.8 has inter alia held as under "... ... ... in ordinary crimes not adverted to under Section 195, Cr. P.C., 1973 if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340, Cr. P.C., 1973 For that matter, the wordings of Section 340, Cr. P.C., 1973 are significant. The Court will have to act in the interest of justice on a complaint or otherwise. P.C., 1973 For that matter, the wordings of Section 340, Cr. P.C., 1973 are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the Court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision. Therefore, it is wholly unnecessary to examine this aspect of the matter. We proceed on the basis that the respondent has locus standi to present the complaint before the Designated Court " (Emphasis Supplied) and submitted that even though he is stranger to the case but he has a right to file a petition under Section 340 Cr.P.C., 1973 It is further submitted by the appellant that since he has been permitted by the court to conduct and defend his mother and brother being the accused persons of that case hence, he cannot be termed as a stranger to Sessions Trial No.279 of 2014 as both the Session Trial Nos. 279 of 2014 and 132 of 2007 have been tried simultaneously even though there is no such specific order for simultaneous trial. It is further submitted by the appellant that the averments made in the rejoinder which is in fact the written submission, even though not supported by affidavit, can be treated as a document, which is by law receivable as evidence and can be termed as a false claim. Hence, it is submitted that the impugned order be set aside and the learned court below be directed to make an enquiry in the matter. 7. Learned counsel for the respondents on the other hand submitted that in view of the order passed by the learned Additional Sessions Judge-II, Hazaribag in S.T. Case No.132 of 2007 dated 09.09.2014, the appellant has no locus standi to file a petition under Section 340 Cr.P.C., 1973 or this appeal. Learned counsel for the respondents further submitted that the appellant has even impleaded the lawyer appearing for the respondent no.2, who is respondent no.3 of this appeal, as a party even though no whisper has been made in the petition under Section 340 Cr.P.C., 1973 filed by the appellant in the learned court below against the lawyer. Learned counsel for the respondents further submitted that the appellant has even impleaded the lawyer appearing for the respondent no.2, who is respondent no.3 of this appeal, as a party even though no whisper has been made in the petition under Section 340 Cr.P.C., 1973 filed by the appellant in the learned court below against the lawyer. It is further submitted by the learned counsel for the respondents that the learned court below has rightly observed that the contents of the rejoinder filed by the respondent no.2 do not come under the purview of the evidence or declaration which is by law receivable as evidence nor they come under the purview of false claim. Hence, it is submitted that this appeal being without any merit be dismissed. 8. Having heard learned counsel for the parties and perusal of the record, I find that in view of the principle of law settled by the Hon''ble Supreme Court of India in the case of N. Natarajan v. K. Subbarao (supra), the appellant certainly has locus standi to file the petition under Section 340 Cr.P.C., 1973. 9. It is settled principle of law that Court is not bound to make a complaint in every case in exercise of power under section 340 of the Cr.P.C., 1973 complaint will be made by a Court only if it is expedient in the interest of justice and not in every case and the courts are normally slow in filing criminal complaint. The Hon''ble Supreme Court of India in the case of Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 observed in paragraph -23 and 26 as under: "23. In view of the language used in Section 340, Cr.P.C., 1973 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 interest 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(i)(b). 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(i)(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. ... ... ..." "26. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b) (ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. ... ... "(Emphasis Supplied) In the case of Pritish v. State of Maharashtra (2002) 1 SCC 253 in paragraph- 9, it has been held by the Hon''ble Supreme Court as under: "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. 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. ... ... " (Emphasis Supplied) 10. Now coming to the facts of the case, so far as the averments made in the counter nomenclated as a rejoinder which is basically the written submission made by the respondent no.2 against the petition dated 02.01.2015 filed under Section 231 Cr.P.C., 1973 is concerned, as admitted by the appellant, only a photocopy of the injury report was attached with the complaint and the averments made in the rejoinder was that the injury report was not attached with the complaint and the appellant fairly submits that there is difference between the injury report and a photocopy of the injury report. So certainly, such averments is not sufficient to constitute any offence and so far as other averments are concerned which are in fact written submissions not supported by affidavit certainly cannot be termed as an evidence or declaration which is by law receivable as evidence and so far as offence under Section 209 of the Indian Penal Code is concerned, the mere fact that if somebody makes a false claim, the offence by merely making a false claim will not be complete in order to constitute an offence under Section 209 of the Indian Penal Code besides a false claim, it has also to be established that the person who made the false submission either fraudulently, dishonestly or with intent to injure or annoy any person and that the person making the false claim knows the same to be false. After perusal of the copy of the petition dated 03.09.2016 which is Annexure-9 at page no.63 to 65 of the appeal memo, I find that no such specific allegation has been made against the respondent no.2 that the averments made in the written submission was false or that he made a false claim either fraudulently, dishonestly or with an intent to injure or annoy any person, nor there is any averment that he knew the information averred by him to be false. In the absence of any such averment in the petition under Section 340 Cr.P.C., 1973 this Court is of the considered opinion that the learned trial court was well within its power to find it expedient in the interest of justice not to make any enquiry or lodge any complaint. Under such circumstances, this appeal being without any merit is dismissed. 11. Let the Lower Court Record along with a copy of this Judgment be sent back to the court below forthwith.