Calcutta High Court (Appellete Side)
Sri Arup Banerjee vs Smt. Anindita Banerjee on 16 May, 2008
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No. J (1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Appellate Side Present:
The Hon'ble Justice Ashim Kumar Roy C.R.R. No. 3586 of 2007 Sri Arup Banerjee versus Smt. Anindita Banerjee For Petitioner : Mr.Saswata Gopal Mukherjee For Opposite Party : Mr. Mirza Ahamed Beg Heard On : March 31, 2008.
Judgment On : 16-05-2008.
Invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, the petitioner has sought for quashing of the complaint Case No. C/480 of 2007 under Sections 193/196/197/198/120B of the Indian Penal Code now pending before the Learned Judicial Magistrate, 3rd Court, Sealdah as well as the order of issuance of summons.
2. It may be mentioned the aforesaid complaint case was filed as against the present petitioner Sri Arup Chatterjee describing him as the accused no. 1 as well as against one Mriganka Khan describing him as the accused no. 2.
3. The allegations made in the impugned complaint are as follows;
(a) The complainant filed an application under Section 125 of the Code of Criminal Procedure claiming maintenance from the accused no. 1. The said application being filed before the Learned Additional Chief Judicial Magistrate, Sealdah, the Misc. Case No. 120 of 2003 was registered and subsequently the case was transferred to the Court of the Learned Judicial Magistrate, 3rd Court, Sealdah for disposal.
(b) The complainant in his aforesaid application categorically stated that the accused no. 1 was working in a software company at Bangalore and subsequently she came to know that he took an employment at M/s. IBM at Salt Lake. Whereas the accused no. 1 in his show cause filed in connection with the aforesaid maintenance case stated that he was working in M/s. Simmex Infotech belonging to the accused no. 2.
(c) In connection with the aforesaid maintenance proceeding the accused no. 1 was examined in Court on November 16, 2005 and November 18, 2005 and while disposing on oath in Court he stated that he is an employee of the accused no. 2 knowing fully well that his statement is false.
(d) The accused no. 1 entered into a criminal conspiracy with the accused no. 2 for their wrongful gain. The accused no. 2 is the best friend of the accused no. 1. While the accused no. 1 stated in his deposition on oath that the accused no. 2 is his employer, the accused no. 2 stated in his deposition on oath that the accused no. 1 is his employee working at his office since July, 2005 which is absolutely false.
(e) One Mr. Debasish Chakraborty, Manager of IBM India Ltd. deposed in the aforesaid case as P.W. 4 and in his deposition he stated that the accused no. 1 was the employee of his company since April 4, 2005 and submitted an authenticated document in respect of his employment and his salary, which were duly marked as exhibits.
(f) Both the accused nos. 1 and 2 entered into a criminal conspiracy in between themselves and made false statement on oath before the Learned Judicial Magistrate, 3rd Court, Sealdah while deposing in connection with Misc. Case No. 120/2003 knowing fully well that their statement are totally false.
(g) The accused persons fabricated and manufactured false evidence in the aforesaid maintenance proceedings and thereby both of them committed offence punishable under Section 120B/192/193 of the Indian Penal Code.
4. The complainant/opposite party in her initial deposition also alleged that the accused no. 1 while deposing in connection with the aforesaid maintenance proceeding as O.P.W. 1 on September 7, 2005 and September 15, 2005 falsely stated on oath, at that point of time he was working at Simmex Infotech under the accused no. 2 Mriganka Khan, similarly the accused no. 2, Mriganka Khan in his deposition in court falsely stated on oath that the accused no. 1 used to work in his concern and was getting a salary of Rs. 9,200/- per month.
5. It appears from perusal of the order sheets although in the petition of complaint it has been alleged that the accused persons committed offence punishable under Sections 192/193/120B of the Indian Penal Code, but the Learned Court below having found a prima facie case of commission of offences under Sections 193/196/197/198/120B of the Indian Penal Code, being made out, directed issuance of process thereunder.
6. Mr. Saswata Gopal Mukherjee, the learned advocate appearing on behalf of the petitioner submitted before this Court that on the face of the allegations that the petitioner gave false evidence in course of a judicial proceeding and used as true or genuine some documents which he knew to be false taking cognizance of such offence on a complaint not by the Court concerned is absolutely illegal and without jurisdiction being clearly hit by the provisions of Section 195 of the Code of Criminal Procedure. Accordingly, Mr. Mukherjee prays that the impugned order of issuance of summons be set aside and the impugned complaint be quashed.
7. On the other hand, the learned advocate appearing on behalf of the complainant/opposite party except submitting that there was no illegality or impropriety in the impugned proceedings has not been able to make any submissions to meet or repudiate the submissions made by Mr. Mukherjee.
8. Considered the rival submissions of the parties. Perused the materials on record more particularly the impugned complaint, the initial deposition of the complainant and other materials on record.
9. Admittedly it is the case of the complainant/opposite party that the petitioner and another, having given false statement on oath in their depositions in course of a judicial proceeding, which they knew to be false, committed the alleged offences for which summons have been issued against them.
In the instant case, the impugned complaint, for giving false statement on oath in course of a judicial proceeding has been made by the opposite party herein and not by that court before whom such alleged false statement was made. As such in view of clear prohibition and a legal bar contained in Section 195 (1)(b)(i) of the Code of Criminal Procedure the Learned Court below has no jurisdiction to take cognizance of such offence on the complaint made to it by the opposite party herein.
10. In the result the instant criminal revision succeeds and the impugned complaint as well as the impugned order of issuance of summons stands quashed.
However, this order will not preclude the parties to take steps in accordance with law.
Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible.
( Ashim Kumar Roy, J. )