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2019 DIGILAW 150 (UTT)

Radha v. State of Uttarakhand

2019-03-01

RAMESH RANGANATHAN, SHARAD KUMAR SHARMA

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JUDGMENT : RAMESH RANGANATHAN, J. 1. This application is filed by the father and brother of the first petitioner, in Criminal Writ Petition No. 1589 of 2018, seeking prosecution of the second petitioner under Section 340 Cr.P.C. 2. Criminal Writ Petition No. 1589 of 2018 was filed by two petitioners (the first petitioner is the daughter and sister of the applicants in Miscellaneous Application No. 1246 of 2018). The jurisdiction of this Court was invoked by both the petitioners claiming that they had married each other, they apprehended a threat to their lives from respondents 3 and 4 (father and brother of the first petitioner), and they should be extended police protection. The cause-title of the writ petition records the age of the first petitioner as 19 years and the second petitioner as 28 years. Accepting the averments in the affidavit, filed in support of the writ petition, as true, the Division Bench passed the order dated 24.08.2018 directing the Senior Superintendent of Police to provide police protection to the petitioners, who apprehended a threat to their lives and liberty from respondent nos. 3 and 4, subject to the condition that the second petitioner deposited a sum of Rs.1,00,000/-in the shape of a fixed deposit, in favour of the first petitioner, within four weeks. The Division Bench made it clear that, in case the fixed deposit was not made in favour of the first petitioner, the interim order granted by this Court shall stand automatically vacated. 3. In the affidavit, filed in support of the present application, it is stated that the order of police protection was obtained by the second petitioner misleading this Court, and playing fraud on it; the first petitioner is a minor and is mentally challenged; the second petitioner was already married having three children, and one of them is only three months old; an F.I.R. was lodged, under Sections 363, 366A and 120B I.P.C., against the second petitioner; these facts make it clear that the second petitioner himself, and through his counsel, had committed fraud on the Court; and he is, therefore, liable to be prosecuted under Section 340 Cr.P.C. Enclosed to the application, is a copy of the school register and transfer certificate form which records the date of birth of the first petitioner as 7March, 2002. It does appear therefrom that on the date, on which police protection was granted by this Court, she was aged a little more than 16 years, and was a minor. Also enclosed to the application, is the Family Record Register, issued by the Village Pradhan, which shows that the second petitioner is married, his wife’s name is Saroj, and he had two children, namely, Adil and Urvashi. Mr. Shubhr Rastogi, learned counsel for the applicants, would submit that, after these entries were made in the Family Record Register, the second petitioner had a third child through his first wife. 4. The very fact that the age of the first petitioner has been shown as 19 years, in the cause title of Criminal Writ Petition No. 1589 of 2018, and the second petitioner had suppressed the fact of his having already married, and having three children, would undoubtedly amount to be an abuse of the process of the Court, besides constituting an offence falling within the ambit of Section 195(1)(b)(i) of Cr.P.C. Section 195 (1)(b)(i) of the Code of Criminal Procedure prohibits a Court from taking cognizance of any offence punishable, among others, under Sections 193 and 196 of the Indian Penal Code, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of that Court (or by such officer of the Court as that Court may authorize in writing in this behalf), or of some other Court to which that Court is subordinate. 5. 5. Section 340(1) of the Code of Criminal Procedure stipulates that when, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient, in the interests 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. Section 193 I.P.C. prescribes the punishment for giving false evidence, and Section 196 relates to using evidence known to be false. 6. From the affidavit, filed in support of the present application, it is evident that, if the averments made therein are true, the provisions of Sections 193 and 196 I.P.C. are attracted. As required under Section 340 (1) of the Cr.P.C., we called upon the second petitioner, in Criminal Writ Petition No. 1589 of 2018, to submit his reply to the allegations made in this application. Despite several opportunities having been granted, no reply has been filed to the averments in the application. 7. Mr. D.S. Mehta, learned counsel for the petitioners in Criminal Writ Petition No. 1589 of 2018, would submit that the second petitioner is in jail in connection with the F.I.R. lodged by the father and brother of the first petitioner. The averments in the affidavit, filed in support of this application therefore stand un-rebutted. 7. Mr. D.S. Mehta, learned counsel for the petitioners in Criminal Writ Petition No. 1589 of 2018, would submit that the second petitioner is in jail in connection with the F.I.R. lodged by the father and brother of the first petitioner. The averments in the affidavit, filed in support of this application therefore stand un-rebutted. We are satisfied that the averments, in the present application, make out a case of the second petitioner in Criminal Writ Petition No. 1589 of 2018, having, prima facie, committed the offence under Sections 193 and 196 I.P.C.; and consequently, in terms of Section 195(1)(b)(i) Cr.P.C., the second petitioner, in Criminal Writ Petition No. 1589 of 2018, is liable to be prosecuted for contempt of the lawful authority of this Court, for his having misrepresented the fact of the first petitioner being a minor, and for having suppressed the fact of his already being married, and to be having three children. 8. We record a finding accordingly in terms of clause (a) of Section 340(1) Cr.P.C. The Registrar-General of this High Court shall, in terms of the order now passed by us, make a complaint in writing and send it to the Ist Class Magistrate having necessary jurisdiction. Since the second petitioner is said to be in judicial custody as on date, clauses (d) and (e) of Section 340(1) would not apply. 9. This application is, accordingly, disposed of.