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2024 DIGILAW 1313 (KER)

Jyotsana Babu v. Reshmi Prabhakaran

2024-10-15

BECHU KURIAN THOMAS

body2024
ORDER : (Bechu Kurian Thomas, J.) The applicant seeks for a direction to the Registrar of this Court to file a complaint before the competent Magistrate under sections 191, 192, 193 and 209 of the Indian Penal Code, 1860 against the counsel for the revision petitioners and the first revision petitioner herself alleging that they had filed a memo dated 07-04-2022, knowing that its contents are false. 2. The applicant was not a party to the revision petition. She claims to be the second wife of the deceased sole respondent in the revision petition. Though the respondent died during the pendency of the proceedings, on the basis of a memo filed by the counsel for the petitioners along with the first revision petitioner stating that there are no legal heirs, the revision petition was dismissed as abated. The attempt of the applicant herein, to set aside the abatement, claiming herself to be the second wife of the deceased respondent was also dismissed by the learned Single Judge. The present application has been filed subsequently, seeking to initiate proceedings under section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (erstwhile section 340 Cr.P.C). 3. A brief narration of the circumstances that led to the present application is required to be mentioned. The revision petition was filed by the wife and daughter of the deceased respondent, challenging the common judgment dated 21-12-2018 in M.C. No. 282/2011 on the files of the Family Court, Ernakulam, to the extent it denied maintenance claimed by the first petitioner until she obtained employment as a teacher. As per the order impugned in the revision petition, the respondent was directed to pay monthly maintenance of Rs.7,500/- to his daughter, the second revision petitioner. 4. During the pendency of the revision petition, the respondent died and by order dated 09-06-2022, a learned Single Judge of this Court had, on the basis of a memo filed by the counsel for the petitioners and the first revision petitioner, recorded that the respondent is no more and there are no legal heirs. On that basis, the revision petition was ordered as abated. Subsequently, claiming to be the legal heir of the deceased respondent, the present applicant filed two petitions as Crl. M.Appl. No. 1/2023 and Crl. M.Appl. No. 2/2023. On that basis, the revision petition was ordered as abated. Subsequently, claiming to be the legal heir of the deceased respondent, the present applicant filed two petitions as Crl. M.Appl. No. 1/2023 and Crl. M.Appl. No. 2/2023. However, Both the applications were dismissed on 09-02-2023, stating that the matter was already disposed of on the basis of a memo filed on behalf of the petitioners. The present application thus beseeches this Court to direct initiation of a complaint against the counsel and the first petitioner for filing the memo stating that there are no legal heirs. The applicant alleges that wherever she tries to put forth her claim to be the legal heir of the deceased respondent, the authorities refused to pay heed to her claim due to the observation of the learned Single Judge made on the basis of the memo dated 07-04-2022 and hence she is seriously prejudiced. 5. A counter affidavit has been filed stating that the application is not maintainable as the applicant is a stranger to the proceedings and further that her application for impleading filed as Crl.M.Appl. No.1/2023 was dismissed as early as 09-02-2023 and hence she has no locus standi to move this Court. It is further stated that the disputed memo is not a piece of evidence to attract the offences alleged and that the application is an abuse of the process of law. It was also stated that the applicant is not a legal heir of the respondent and that she is an accused in Crime No.1692/2021 of the Cherthala Police Station. 6. I have heard Smt. Aysha Abraham, the learned counsel for the applicant and Sri. Raman Kartha, the learned counsel for the respondent. 7. In order to appreciate the contentions raised by the parties, it is necessary to advert to and extract the proceedings as recorded on the file of this case. The relevant proceedings from the order sheet are given below: 8. The proceedings in RP(FC) No. 189/2019 reveal that on 23-05- 2022, the following order was recorded: “It is submitted by the counsel for the respondent that the respondent who is no more had remarried during his lifetime and that the wife in the marriage is not yet impleaded. Learned counsel for the respondent is directed to produce the certificate of second marriage. Post on 27-05-2022.” 9. Learned counsel for the respondent is directed to produce the certificate of second marriage. Post on 27-05-2022.” 9. On 27-05-2022, the following proceeding is seen recorded: “It is submitted by the learned counsel for the respondent that certificate of marriage is obtained only today and he will produce it. The learned counsel shall also serve a copy of the marriage certificate on the counsel for the revision petitioners. Post the matter on 31-05-2022.” 10. On 07-06-2022, the proceedings read as under: “It is submitted by the learned counsel for the petitioners that a memo has been filed in the revision. But it is not found incorporated with the records. Registry shall incorporate the memo. Post on 09-06-2022.” 11. On 09-06-2022, the learned Single Judge ordered the revision petition as abated, which is as follows: “A memo has been filed by the learned counsel for the petitioners stating that the respondent is no more and apart from the 2nd petitioner, other legal heirs are not there to be impleaded. The factum is recorded and the revision petition is ordered as abated”. 12. In the memo filed by the counsel for the petitioner, it is stated that “To the knowledge of the first petitioner no one other than the second petitioner is the legal heir of the deceased respondent and hence this RP(FC) may be disposed of as abated upon recording the same.” The memo is seen signed by the first petitioner as well as the counsel for the petitioner. The limited question to be considered is whether the said memo which states that there are no legal heirs of the deceased respondent, should be treated as a false evidence requiring filing of a complaint under section 379 of BNSS, 2023. 13. Section 379 of BNSS reads as follows: 379. Procedure in cases mentioned in section 215. The limited question to be considered is whether the said memo which states that there are no legal heirs of the deceased respondent, should be treated as a false evidence requiring filing of a complaint under section 379 of BNSS, 2023. 13. Section 379 of BNSS reads as follows: 379. Procedure in cases mentioned in section 215. (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 215, 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. 14. As mentioned earlier, the applicant has sought to initiate proceedings under Section 379 BNSS alleging that the memo filed by the petitioner contains a statement that there are no legal heirs, which according to the applicant, falls within the purview of an offence under Section 215(i)(b) of the BNSS. While appreciating the contentions, it has to be borne in mind that the memo filed in the revision petition was no doubt, prepared before filing it in court. 15. In this context, reference to the decision of the Supreme Court in Sachida Nand Singh and Another v. State of Bihar and Another, 1998) 2 SCC 493 is appropriate. In the said decision the Supreme Court considered the scope of section 340 Cr.P.C (corresponding to section 379 BNSS). The following observations in the said judgment are relevant. 15. In this context, reference to the decision of the Supreme Court in Sachida Nand Singh and Another v. State of Bihar and Another, 1998) 2 SCC 493 is appropriate. In the said decision the Supreme Court considered the scope of section 340 Cr.P.C (corresponding to section 379 BNSS). The following observations in the said judgment are relevant. “The scope of the preliminary enquiry envisaged in S.340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in Court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.” After discussing various judgments it was concluded as follows “The sequitur of the above discussion is that the bar contained in S.195(1) (b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court.” The above proposition has been reiterated in Bhima Razu Prasad v. State, (2021) 19 SCC 25 ) as well as in Ashok Gulebrao Bondre v. Vilas Madhukarrao Deshmukh and Others ( (2023) 9 SCC 539 ) wherein it was stated that the embargo created by S.195(1) (b)(ii) Cr.P.C would not apply in respect of documents that were fabricated before it was produced in court. 16. Sections 379 of the BNSS is in pari materia with Section 340 Cr.P.C. Since the memo in question, which allegedly contains an incorrect statement, was prepared outside the court, the provisions of Sections 379 of the BNSS cannot apply and the bar under section 215 of BNSS will not apply. Thus, even if the entire allegations of the applicant are assumed to be correct, still, it is not expedient to hold an enquiry as contemplated under section 379 of BNSS. Hence, the question whether the memo filed on behalf of the petitioners in the revision petition would amount to false evidence or not, need not be considered by this Court and is left open. 17. However it needs to be mentioned that the applicant has projected in her application that though she was married to the deceased respondent in the revision petition, by virtue of the observation in the order dated 09-06-2022 that there are no legal heirs, she is being put to prejudice. 17. However it needs to be mentioned that the applicant has projected in her application that though she was married to the deceased respondent in the revision petition, by virtue of the observation in the order dated 09-06-2022 that there are no legal heirs, she is being put to prejudice. In this context, it has to be clarified that the observation that 'there are no legal heirs' in the order dated 09-06-2022 is not a finding rendered after any adjudication and the said observation cannot determine the non-existence or existence of legal heirs. The said observation having been a mere reproduction of the statement in the memo filed on behalf of the revision petitioners, it cannot be treated as a determination of the status or rights of the parties. In view of the above discussion, this application is without any merit and it is dismissed subject to the above observation.