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2019 DIGILAW 344 (MP)

Sandeep Gupta v. Anuradha Patel

2019-04-26

V.P.S.CHAUHAN

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JUDGMENT : VISHNU PRATAP SINGH CHAUHAN, J. 1. The appellant has filed this appeal under Section 341 of the Code of Criminal Procedure, 1973 being aggrieved by the order dated 18.01.2018 passed in private complaint case filed under Section 340 of Cr.P.C. before the 2nd Additional District Judge, Itarsi, District Hoshangabad and prays to take cognizance against the respondent who cited wrong facts in the affidavit before the Court of 2nd Additional District Judge, Itarsi, District Hoshangabad in Case No. 88-A/2015. 2. The facts giving rise to this petition, in short, are that appellant-Sandeep Gupta married with respondent-Anuradha Patel alias Anuradha Gupta. After marriage their relations became strained. The appellant filed a petition under Section 13 of the Hindu Marriage Act before the Court of Additional District Judge, Itarsi which was pending in the Court of 2nd Additional District Judge, Itarsi, District Hoshangabad being Case No. 88-A/2015. Later on by virtue of the order dated 06.12.2017 passed in M.C.C. No. 1351/2017 by this Court, Case No. 88-A/2015 has been transferred from the Court of 2nd Additional District Judge, Itarsi, District Hoshangabad to the Court of Principal Judge, Family Court, Bhopal. Learned 2nd Additional District Judge, Itarsi, on receiving the order passed by this Court, vide order dated 18.01.2018 ordered to send the whole record to the Court of Principal Judge, Family Court, Bhopal. 3. As alleged in this appeal, the respondent who was residing with her parents in District, Shajapur lodged a report against the appellant under Sections 498-A, 504, 506 of IPC in Police Station, Shajapur and also filed a private complaint under Sections 420, 467, 468 of IPC before the Court of CJM, Shajapur. As alleged by the appellant that when Case No. 88-A/2015 was filed, the respondent filed a reply of the petition filed under Section 13 of the Hindu Marriage Act and affidavit, denied the FIR lodged under Sections 498-A, 504, 506 of IPC before the Police Station, Shajapur and also denied for filing of private complaint case under Sections 420, 467 and 468 of IPC before the Court of C.J.M. Shajapur. The appellant filed a private complaint under Section 340 of Cr.P.C. before the 2nd Additional District Judge, Itarsi on 15.09.2017 alleging therein that the respondent pleaded wrong facts in reply and affidavit with regard to lodging of FIR, filing of private complaint case and prays to register a case of forgery after conducting preliminary enquiry and also prays to send the case for trial before the appropriate Court of JMFC having jurisdiction for trial. Learned 2nd Additional District Judge, Itarsi vide order dated 18.01.2018 has dismissed the complaint filed by the appellant without contemplating any preliminary enquiry by holding that the Court is not having jurisdiction to contemplate any enquiry and also to take cognizance on the basis of the complaint filed by the appellant under Section 340 of Cr.P.C. 4. Being aggrieved by the impugned order dated 18.01.2018 the appellant has filed this appeal under Section 341 of Cr.P.C. on the ground that the respondent filed his reply and affidavit before the 2nd Additional District Judge while Civil Suit No. 88-A/2015 was pending before the said Court. The respondent has committed offence before learned 2nd Additional District Judge, Itarsi. Learned 2nd Additional District Judge is having jurisdiction to contemplate preliminary enquiry as per the provisions of Sections 195 and 340 of Cr.P.C. It is further contended that learned 2nd Additional District Judge should have registered MJC for preliminary enquiry and should send the complaint to the Court of JMFC having jurisdiction for taking cognizance. Learned 2nd Additional District Judge has committed illegality while dismissing the application filed under Section 340 of Cr.P.C. by the appellant. 5. None for the respondent even though served. 6. Heard appellant and perused the whole documents filed along with this appeal. 7. The appellant has filed an application under Section 340 of Cr.P.C. before 2nd Additional District Judge, Itarsi, District Hoshangabad on 15.01.2018. This Court vide order dated 06.12.2017 passed in M.C.C. No. 1351/2017 directed to transfer Case No. 88-A/2015 to the Principal Judge, Family Court, Bhopal within 15 days from the date of receiving of copy of the order. In M.C.C. No. 1351/2017 the appellant was made party as respondent. This order was well within the knowledge of the appellant that Case No. 88-A/2015 has been transferred from the Court of 2nd Additional District Judge, Itarsi, District Hoshangabad to the Court of Family Court, Bhopal. In M.C.C. No. 1351/2017 the appellant was made party as respondent. This order was well within the knowledge of the appellant that Case No. 88-A/2015 has been transferred from the Court of 2nd Additional District Judge, Itarsi, District Hoshangabad to the Court of Family Court, Bhopal. In spite of that, the appellant filed complaint under Section 340 of Cr.P.C. on 15/01/2018 and prays to make a preliminary enquiry. 8. As alleged by the appellant that respondent has filed reply and affidavit in Case No. 88-A/2015 alleging therein wrong facts. It is worth to mention that the suit was already transferred to the Principal Judge, Family Court, Bhopal. No doubt jurisdiction to make preliminary enquiry is now vested in that Court where Case No. 88-A/2015 is pending. As per Section 195(1)(b) of Cr.P.C. preliminary enquiry would be made by the Court in which, during pendency of the Court, the forged evidence or documents have been produced. The case No. 88-A/2015 has been transferred to the Family Court, Bhopal for trial in which the reply along with affidavit filed by the respondents. Section 340 of Cr.P.C. reads as under: “340. Procedure in cases mentioned in section 195: (1) 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 for 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. (e) bind over any person to appear and give evidence before such Magistrate. (d) take sufficient security for the appearance for 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. (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed: (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint. (b) in any other case, by the Presiding Officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. (4) In this section "Court" has the same meaning as in section 195.” 9. On perusal of Section 340 of Cr.P.C. it is apparent that the Court is competent to make a preliminary enquiry where the case is pending. It is not disputed that Case No. 88A/2015 has been transferred from 2nd Additional District Judge, Itarsi to Principal Judge, Family Court, Bhopal by virtue of order dated 06.12.2017 passed by this Court in M.C.C. No. 1351/2017. Thus, it is clear that preliminary enquiry should be conducted by the Court of Principal Judge of Family Court, Bhopal where Case No. 88-A/2015 is pending. 10. Perused the impugned order dated 18.01.2018. Learned 2nd Additional District Judge, Itarsi clearly mentioned in the order that by virtue of order dated 06.12.2017 passed in M.C.C. No. 1351/2017 by this Court, Case No. 88-A/2015 has been transferred to Principal Judge, Family Court, Bhopal, therefore, this Court is not having jurisdiction to conduct a preliminary enquiry on the basis of application filed by the appellant and 2nd Additional District Judge, Itarsi kept the application attached with record of Case No. 88-A/2015. This impugned order does not suffer from any illegality or irregularity or perversity. This impugned order does not suffer from any illegality or irregularity or perversity. The appellant is free to agitate before learned Principal Judge, Family Court, Bhopal where Case No. 88-A/2015 is pending in which the respondent, as alleged by the appellant, made false statement in affidavit or in-reply. Thus, this appeal filed under Section 341 of Cr.P.C. is not maintainable against the impugned order dated 18.01.2018 because no final refusal order has been passed under Section 340 of Cr.P.C. 11. Accordingly, the appeal is dismissed without any order as to cost.