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2023 DIGILAW 316 (CHH)

Jitendra Chandrakar S/o Shri Malikram Chandrakar v. Namita Chandrakar W/o Shri Jitendra Chandrakar

2023-07-13

RAKESH MOHAN PANDEY

body2023
ORDER : 1. The petitioners have questioned the legality and validity of the order passed by the learned Judicial Magistrate First Class, Raipur in Complaint Case No. 2670/2015 dated 30.11.2015, whereby cognizance has been taken of a complaint filed by the respondent against the petitioners for commission of offence punishable under Sections 191, 192, 193, 196, 120-B read with Section 34 of IPC. 2. It is undisputed that the petitioner No. 1 is the husband of the respondent and their marriage was solemnized on 23.05.2010. 3. The facts of the present case in a nutshell are that barely after two months of marriage, on account of a certain dispute, the respondent left her matrimonial house and thereafter, the petitioner No. 1 made a complaint making imputation on the character of the respondent to the President of his community on 08.10.2010 and on 16.06.2011, he filed a petition for dissolution of marriage, whereas the respondent filed Misc. Judicial Case No. 8/2012 under Section 125 of Cr.P.C. for grant of maintenance before the Family Court, Raipur. In a proceeding under MJC No. 8/2012, the respondent examined herself as witness No. 1, whereas petitioner No. 1 examined himself along with two other witnesses as witness No. 1 to 3 respectively. Vide order dated 18.06.2014; the learned Family Court passed the order in favour of the respondent in a proceeding initiated under Section 125 of Cr.P.C. 4. On 26.10.2015, the respondent preferred a complaint case under Section 200 of Cr.P.C. alleging therein commission of offence punishable under Sections 191, 192, 193, 196, 120-B read with Section 34 of IPC against the petitioners on the ground that in the proceedings of MJC No. 8/2012, the petitioners adduced false evidence with regard to her character and certain other facts and thus prayed for taking cognizance of the offence against the petitioners. 5. The learned Judicial Magistrate First Class, Raipur, after examination of the respondent, came to conclusion that there is sufficient material on record for taking cognizance of offence punishable under Sections 193 and 120B read with Section 34 of IPC against the petitioners and an order to this effect was passed on 30.11.2015 in Complaint Case No. 2670/2015. The petitioners have challenged the order dated 30.11.2015 in the instant petition. 6. The petitioners have challenged the order dated 30.11.2015 in the instant petition. 6. Learned counsel for the petitioners would submit that the learned Judicial Magistrate First Class has taken cognizance of the complaint made by the respondent in a manner not known to law and without following the due process of law. He would further submit that the learned Judicial Magistrate First Class had no jurisdiction to take cognizance of the complaint, as Section 195 read with Section 340 of Cr.P.C. prohibits taking of cognizance directly on any complaint, except on the complaint in writing made by the court concerned or any officer of the court authorized in that behalf. He would further submit that the exercise of power by the learned Judicial Magistrate First Class is hit by provisions of Section 461 of Cr.P.C. particularly Section 461(k) of Cr.P.C. therefore, the entire proceeding is vitiated. His next submission is that in the present case, the complaint has been filed before the learned Judicial Magistrate First Class directly without there being any finding recorded by the Family Court. He would next contend that the complaint case filed by the complainant was not maintainable at all as it was not supported by an affidavit and thus the prosecution of the petitioners would be an abuse of process of law. He would pray to set aside the order dated 30.11.2015 and to quash the entire proceedings of the Complaint Case No. 2670/2015 pending before the learned Judicial Magistrate First Class, Raipur. He has placed reliance upon the judgments passed by the Hon'ble Supreme Court in the matters of K.T.M.S. Mohd. and Another vs. Union of India, (1992) 3 SCC 178 , State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335, Pepsi Foods Ltd. and Another vs. Special Judicial Magistrate and Others, (1998) 5 SCC 749 , M.S. Ahlawat vs. State of Haryana and Another, (2000) 1 SCC 278 , Dhariwal Tobacco Products Limited and Others vs. State of Maharashtra and Another, (2009) 2 SCC 370 and Ashok Kumar Aggarwal vs. Union of India and Others, (2013) 15 SCC 539 . 7. 7. On the other hand, learned counsel for the respondent would submit that the learned Judicial Magistrate First Class has taken cognizance of the complaint filed by the respondent according to the provisions of Section 190(1)(a) of Cr.P.C. and bar provided for taking cognizance under Section 195(1)(b)(i) and Section 340 of Cr.P.C. would not apply in the present case. He would further submit that the petitioners made certain bald remarks on the character of respondent in a proceeding under Section 125 Cr.P.C. and also adduced false evidence thus, the provisions of Section 340 of Cr.P.C. would not attract. He would also submit that the provisions of Section 461(k) of Cr.P.C. would not apply as the learned Judicial Magistrate First Class has not taken cognizance upon information received from any person other than a police officer. He would further contend that the learned Judicial Magistrate is empowered to take cognizance of a complaint under Section 200 of Cr.P.C. and he exercised the powers vested in him under Chapter XV of Cr.P.C. Thus, he would submit the petition preferred by the petitioners deserves to be dismissed. 8. Heard learned counsel for the parties and perused the documents annexed along with the petition. 9. The facts stated above are not disputed by the parties. In a proceeding initiated under Section 125 of Cr.P.C. by the respondent; the petitioners were examined on 07.10.2013, 22.01.2014 and 09.06.2014 as witness No. 1, 2 and 3, respectively where they stated that while they had gone for the morning walk, they saw the respondent in the close company of an unknown person. 10. The respondent filed complaint case on 26.10.2015 where she stated that the petitioners in their evidence recorded before the learned Family Court in MJC No. 8/2012 stated that they saw her in the close company of an unknown person. She further stated that the petitioners have given false evidence as on dates alleged by the petitioners, the petitioner No. 2 and 3 being government officials were discharging their duties in their working place and thus they have made false statement before the Family Court which is punishable under Sections 191, 192, 193, 196, 120-B, 34 of IPC. Preliminary statement of respondent/complaint was recorded and vide order dated 30.11.2015 the learned trial Court took cognizance of the offence and registered the complaint case and also issued process against the petitioners. 11. Preliminary statement of respondent/complaint was recorded and vide order dated 30.11.2015 the learned trial Court took cognizance of the offence and registered the complaint case and also issued process against the petitioners. 11. Section 195 of Cr.P.C. deals with ‘prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.’ Section 195 of Cr.P.C. reads as under: “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence: (1) No Court shall take cognizance: (a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860). (ii) of any abetment of, attempt to commit, such offence. (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. (b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court. (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court. (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section. (4) For the purpose of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Cvil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that: (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate. (b) where appeals lie to a civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” According to the provisions of Section 195(b)(i) of Cr.P.C. the court may take cognizance of offences punishable under Sections 193 to 196, 199, 200, 205 to 211 of IPC and further offence described in Sections 463, 471, 475, 476 of IPC and of any criminal conspiracy to commit, or attempt to commit, or the abetment of any offence specified in sub-clause (i) and sub-clause (ii). It is further provided that no Court shall take cognizance 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. 12. It is further provided that no Court shall take cognizance 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. 12. It would be advantageous to go through Section 340 of Cr.P.C. which deals with procedure in cases mentioned in Section 195 of Cr.P.C which reads thus: 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 152 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. (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. (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. From bare reading of this Section, it emerges that when upon an application made to the Court in this regard or otherwise, if the Court is of the opinion that it is expedient in the interest of justice to hold an inquiry into any offence referred to Section 195(1)(b) then after conducting such preliminary inquiry, the court may:- record a finding to that effect, make a complaint thereof in writing, send it to a Magistrate of First Class having jurisdiction, take sufficient security for appearance of the accused and bind over any person to appear and give evidence. According to Section 340(3) of Cr.P.C. a complaint made under this Section shall be signed where the court making the complaint is a High Court by such officer of the Court as the Court may appoint and in any other case, by Presiding Officer of the Court or by such officer of the court as the Court may authorize in writing in this regard. 13. In the matter of K.T.M.S. Mohd. (supra), the Hon'ble Supreme while dealing with the provisions of Sections 340 and 195 of Cr.P.C. held that only ‘court’ falling within the definition provided under Section 195(3) is competent to take action under Section 340 of Cr.P.C. It reads thus: “35. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading “Provisions as to Offences Affecting the Administration of Justice”. In this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading “Provisions as to Offences Affecting the Administration of Justice”. This section confers an inherent power on a court to make a complaint in respect of an offence 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, if that court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-section (1) of Section 195 and authorises such court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words “in or in relation to a proceeding in that court” show that the court which can take action under this section is only the court operating within the definition of Section 195 (3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by Section 340 of the Code should be used with utmost care and after due consideration. The scope of Section 340 (1) which corresponds to Section 476 (1) of the old Code was examined by this Court in K. Karunakaran vs. T.V. Eachara Warrier, (1978) 1 SCC 18 and in that decision, it has observed: (SCC pp. 25 and 26, Paras 21 and 26) “At an enquiry held by the Court under Section 340(1), Cr.P.C. irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if un-rebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action...... The two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC.” 14. The two per-conditions are that the materials produced before the High Court make out a prima facie case for a complaint and secondly that it is expedient in the interest of justice to permit the prosecution under Section 193 IPC.” 14. In M.S. Ahlawat (supra), the Hon'ble Supreme Court explained how the discretion has to be exercised by the Court to order prosecution under Section 195 of Cr.P.C. In Para 5, 6 and 7 it was held as under: “5. Chapter XI IPC deals with “false evidence and offences against public justice” and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (Cr.P.C.) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 Cr.P.C. are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice. 6. Section 340 Cr.P.C. prescribes the procedure as to how a complaint may be preferred under Section 195 Cr.P.C. While under Section 195 Cr.P.C. it is open to the court before which the offence was committed to prefer a complaint for the prosecution of the offender, Section 340 Cr.P.C. prescribes the procedure as to how that complaint may be preferred. Provisions under Section 195 Cr.P.C. are mandatory and no court can take cognizance of offences referred to therein (sic). It is in respect of such offences the court has jurisdiction to proceed under Section 340 Cr.P.C. and a complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction. 7. It is in respect of such offences the court has jurisdiction to proceed under Section 340 Cr.P.C. and a complaint outside the provisions of Section 340 Cr.P.C. cannot be filed by any civil, revenue or criminal court under its inherent jurisdiction. 7. This Court in Chajoo Ram vs. Radhey Shyam, (1971) 1 SCC 774 stated that where the offence relates to a court under Section 195 Cr.P.C. sanction of the court should be obtained first and such sanction should be granted only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely and to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very end. It is made clear that there is no inherent power to make a complaint apart from the provisions of Section 195 Cr.P.C.” 15. In Ashok Kumar Aggarwal (supra), the Hon'ble Supreme Court while emphasizing the condition precedent for initiation of prosecution for perjury under Section 340 read with Section 195(1)(b) of Cr.P.C. in Para 8, 9 and 10 observed as under: “8. In this context, reference may be made of Section 340 under Chapter XXVI of the Cr.P.C. under the heading of “Provisions as to Offences Affecting the Administration of Justice. This Chapter deals with offences committed in or in relation to a proceeding in the court, or in respect of a document produced or given in evidence in a proceeding in the court and enables the court to make a complaint in respect of such offences if that court is of the view that it is expedient in the interest of justice that an inquiry should be made into an offence. Clause (b) of Section 195 (1) Cr.P.C. authorises such court to examine prima facie as it thinks necessary and then make a complaint thereof in writing after having recorded a finding to that effect as contemplated under Section 340(1) Cr.P.C. In such a case, the question remains as to whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offences and whether it is also expedient in the interest of justice to take any action. Thus, before lodging a complaint, the condition precedent for the court to be satisfied are that material so produced before the court makes out a prima facie case for a complaint and that it is expedient in the interest of justice to have prosecution under Section 193 IPC. [Vide K. Karunakaran vs. T.V. Eachara Warrier, (1978) 1 SCC 18 and K.T.M.S. Mohd. vs. Union of India, (1992) 3 SCC 178 ] 9. In Chajoo Ram vs. Radhey Shaym, (1971) 1 SCC 774 , this Court held: (SCC p. 779, Para 7) “7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge.” 10. In Iqbal Singh Marwah vs. Meenakshi Marwah, (2005) 4 SCC 370 , this Court observed: (SCC pp. 386-387, Para 23) “23. In view of the language used in Section 340 Cr.P.C. 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 word '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(1)(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(1)(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. [See also R.S. Sujatha vs. State of Karnataka, (2011) 5 SCC 689 ].” 16. Now coming to the next issue regarding power of the High Court in quashing criminal proceeding while exercising powers under Section 482 of Cr.P.C. or Article 226 of the Constitution of India. 17. In the matter of Bhajan Lal (supra), the Hon'ble Supreme Court has enlisted certain categories of cases by way of illustrations wherein power under Section 482 of Cr.P.C. and Article 226 of the Constitution of India can be exercised to secure the ends of justice. Para 102 and 103 are reproduced herein-below: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court of otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 18. In the light of the judgments passed by the Hon'ble Supreme Court and from the language employed under Section 195 of Cr.P.C. it can been culled out that: (I) Action under Section 195/340 of Cr.P.C. should be initiated in the larger interest of the administration of justice and not to satisfy the personal revenge and vindictiveness or to serve the interest of a party. (II) Complaint under Section 340 of Cr.P.C. can be filed by the Presiding Officer of the Court or by such officer of the Court as the Court may authorize in this behalf. (III) A third party can move an application before the Court where false evidence has been given or forged documents have been produced; for filing of complaint under Section 340 of Cr.P.C. the material produced before the Court must establish prima-facie case on inquiry into an offence referred to in clause (b) of subsection (1) of Section 195 Cr.P.C. (IV) The concerned Court suo moto or on the instance of the party may initiate action for filing of complaint case under Section 340 of Cr.P.C. (V) Magistrate cannot take cognizance of offences under Section 195 of Cr.P.C. on the basis of charge sheet filed by the police after investigation into an F.I.R. (VI) Lastly, the criminal proceeding where there is an express legal bar engrafted in any law for the time being in force concerning institution and continuance of the proceedings and where there is a specific provision for efficacious redressal of grievance of the aggrieved party, criminal proceedings can be quashed. 19. In view of the peculiar facts and circumstances of the case and keeping in mind the law laid down by the Hon'ble Supreme Court, I have no hesitation to hold that continuance of the criminal proceedings would amount to abuse of process of Court as the complaint case is manifestly attended with mala fide and there is express legal bar engrafted as observed above and further the provisions of Section 195 as well as 340 of Cr.P.C. have also not been complied with, therefore, the impugned order dated 30.11.2015 passed in Complaint Case No. 2670/2015 and the proceedings of Complaint Case No. 2670/2015 pending before the Judicial Magistrate First Class, Raipur (C.G.) against the petitioners are hereby quashed. 20. The respondent would be at liberty to take recourse to law. 21. Consequently, this petition is allowed.