Delhi District Court
Complainant vs (1) Asi Abdul Rahim on 28 November, 2022
IN THE COURT OF PAWAN KUMAR MATTO,ADDITIONAL
SESSIONS JUDGE (SPECIAL JUDGE NDPS), NORTH EAST
DISTRICT, KARKARDOOMA COURTS, DELHI
Misc. Criminal No. 11/2021
PS Seelampur
(1) Sh. Yogesh Verma
S/o Late Sh. Ballabh Verma
R/o House No. L-13, Naveen Shahdara,
Delhi-110032
..... Complainant.
VERSUS
(1) ASI Abdul Rahim
(Now Sub-Inspector)
Police Station New Seelampur,
Delhi.
(2) S.H.O Manoj Sharma
Police Station New Seelampur,
Delhi.
(3) Akash Verma
S/o Sh. Ravinder Singh.
(4) Sh. Ravinder Singh.
Both R/o D-158, New Seelampur,
Delhi-110053 ........Accused
Date of Institution of application : 10.11.2021
Date of Completion of Arguments : 25.11.2022
Date of Order : 28.11.2022
ORDER
1. This order of mine will dispose of an application filed by M.Crl. No. 11/2021 Page No. 1 of 12 the complainant U/sec. 340 of Cr.P.C. r/w Sec.193/195/196/200/203/309/166/120-B of IPC filed against ASI Abdul Rahim(now SI), SHO Manoj Sharma of Police Station New Seelampur, Akash Verma and Ravinder Singh.
2. I have heard the Ld. Counsel for the complainant.
3. The Ld. Counsel for the complainant has submitted that the complainant had filed an application for grant of anticipatory bail in the court of the Ld. District & Sessions Judge,North-East, KKD Courts, Delhi and ASI Abdul Rahim(now SI) had filed the reply(dated 06.03.2020)to the said application,stating therein false fact that on dated 06.02.2020 in the FIR No.32/2020, the court of Ld. MM, KKD Courts, Delhi had ordered for adding section 452 of IPC and submitted that this complainant has filed the certified copy of the reply (dated 06.03.2020 to the said application for grant of anticipatory bail) filed by ASI Abdul Rahim(now SI) in the court of Ld. District & Sessions Judge,North-East, KKD Courts, Delhi and he has also filed copy of the order dated 06.02.2020 passed by the Ld. MM-02, North- East, KKD Courts Delhi and submitted that from the order dated 06.02.2020 passed by Ld. MM,North-East, KKD Courts, Delhi, it is clear that no such order was passed by the Ld. MM, vide which, any direction was given to add Sec. 452 of IPC and further submitted that reply to the said application for grant of anticipatory bail dated 06.03.2020 was filed by Mr. Abdul Rahim(accused No.1) which was forwarded by the SHO Manoj Kumar(accused No.2) and since FIR No. 32/2020 was lodged on M.Crl. No. 11/2021 Page No. 2 of 12 the statement of Akash Verma, so, Akash Verma is impleaded as accused no.3 and Ravinder Singh, is the father of accused Akash Verma, so, he is impleaded as accused no.4 in the present application and since the false fact is mentioned in the said reply, so,the complainant has filed the present application U/sec. 340 of Cr.P.C. r/w Sec.193/195/196/200/203/309/166/120-B of IPC and prayed for taking action against the said accused in above said provisions. The Ld. Counsel for the complainant has relied upon the following judgments:- K.Karunakaran v. T.V.Eachara Warrter,1978 AIR(SC) 290, Sanjeev Kumar Mittal v. State, 2010(174) DLT 214,Pritish v. State of Maharashtra & Ors. (2002)1 Supreme Court Cases 253 and Arjit Sarkar v. Monosree Sarkar & Ors. C.R.R. No. 809 of 2015.
4. I have given thoughtful consideration to the submissions made by the Ld. Counsel for the complainant and perused the record.
5. The perusal of the application reveals that this complainant has relied upon the copy of the reply dated 06.03.2020 filed by ASI Abdul Rahim(now SI) then posted in Police Station Seelampur in the application for grant of anticipatory bail filed in a case registered vide FIR No. 32/2020 in the court of Ld. District & Sessions Judge, North-East, KKD Courts, Delhi and copy of the said reply reveals that it is mentioned therein that Ld. MM, KKD Courts, Delhi had ordered for addition of Sec. 452 of IPC and ld. Counsel for the complainant has submitted that since no such order was passed M.Crl. No. 11/2021 Page No. 3 of 12 by the court of Ld. MM, so, the reply filed by ASI Abdul Rahim(now SI) in the court of Ld. District & Sessions Judge,North-East, KKD Courts, Delhi, was based on the falsehood and in order to fortify such contentions, he has also filed certified copy of the order passed by Ms. Richa Parihar, Ld. MM-02,North-East, KKD Courts, Delhi on dated 06.02.2020 and this court has perused the said order,but, the perusal of the reply dated 06.03.2020 filed by ASI Abdul Rahim(now SI)in the court of Ld. District & Sessions Judge, North-East, Karkardooma Courts, Delhi reveals that the said reply was filed in the application for bail in the case registered vide FIR No. 32/2020, but, the copy of the order dated 06.02.2020 passed by the court of Ms. Richa Parihar, Ld. MM-02,North-East, KKD Courts, Delhi reveals that it was passed in complaint case titled as "Ravinder Singh v. Yogesh Verma & Ors." registered vide, CC No. 2440/2019 and this court has sought assistance from the counsel for the complainant, as to how this order dated 06.02.2020 is relating to the case registered vide FIR No. 32/2020 and he has submitted that the complainant has placed on record, the copy of this order dated 06.02.2020 passed by the court of Ms. Richa Parihar, Ld. MM-02,North-East, KKD Courts, Delhi,to fortify his contention that the reply filed by ASI Abdul Rahim was based on the falsehood, so, the complainant has filed the present application,but, as this court finds the order dated 06.02.2020 was passed by the said court in complaint case titled as "Ravinder Singh v. Yogesh Verma & Ors." registered M.Crl. No. 11/2021 Page No. 4 of 12 vide, CC No. 2440/2019 and not the case registered vide FIR No. 32/2020, so, the complainant has failed to produce any documentary proof to fortify his contention that the reply to the bail application field by ASI Abdul Rahim was based on the falsehood, as the copy of the order dated 06.02.2020 passed by the court of Ms. Richa Parihar, Ld. MM-02,North-East, KKD Courts, Delhi is relating to the case registered vide, CC No. 2440/2019 and not in respect of the case registered vide FIR No. 32/2020.
6. Their lordship of Supreme Court in case R.S.Sujatha v. State of Karnataka reported in [(2011)5 SCC 689] was pleased to observe:-
"18.Thus, from the above, it is evident that the inquiry/contempt proceedings should be initiated by the court in eXceptional circumstances where the court is of the opinion that perjury has been committed by a party deliberately to have some beneficial order from the court. There must be grounds of a nature higher than mere surmise or suspicion for initiating such proceedings. There must be distinct evidence of the commission of an offence by such a person as mere suspicion cannot bring home the charge of perjury. More so, the court has also to determine as on facts, whether it is eXpedient in the interest of justice to inquire into the offence which appears to have been committed."
7. Their lordship of Supreme Court in case Amarsang Nathaji v. Jardik Harshadbhai Patel and others reported in (2017)1 SCC M.Crl. No. 11/2021 Page No. 5 of 12 113, had given the principles to be followed for initiating proceedings under Section 340 Cr.P.C., which are as under :-
"5.There are two preconditions for initiating proceedings under Section 340 CrPC:
(i) materials produced before the court must make out a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC, and
(ii) it is eXpedient in the interests of justice that an inquiry should be made into the alleged offence.
The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as "IPC"); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is eXpedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matriX as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India [K.T.M.S. Mohd. v. Union of India, (1992) 3 SCC 178 : 1992 SCC (Cri) 572] ).
The court must be satisfied that such an M.Crl. No. 11/2021 Page No. 6 of 12 inquiry is required in the interests of justice and appropriate in the facts of the case.
In the process of formation of opinion by the court that it is eXpedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra)"
8. Their Lordship of Supreme Court in case Iqbal Singh Marwah v. Meenakshi Marwah reported in [(2005)4 SCC 370], was pleased to observe as under:-
"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 words "court is of opinion that it is eXpedient in the interests 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 M.Crl. No. 11/2021 Page No. 7 of 12 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. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it eXpedient in the interest of justice to make a complaint."
9. Their Lordship of Supreme Court in case Chhajoo Ram v. Radhey Shyam and another reported in [1971(1) SCC 774], observed as under:-
"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 M.Crl. No. 11/2021 Page No. 8 of 12 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. In the present case we do not think the material brought to our notice was sufficiently adequate to justify the conclusion that it is eXpedient in the interests of justice to file a complaint. The approach of the High Court seems some- what mechanical and superficial: it does not reflect the requisite judicial deliberation:(emphasis added) Lastly, there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject-matter of the charge. This factor is also not wholly irrelevant for considering the question of eXpediency of initiating prosecution for the alleged perjury. In view of the nature of the alleged perjury in this case this long delay also militates against eXpediency of prosecution. And then by reason of the pendency of these proceedings since 1962 and earlier similar proceedings before the District Magistrate also the appellant must have suffered both mentally and financially. In view of all these circumstances we are constrained to allow the appeal and set aside the order directing complaint to be filed."
10. Their Lordship of Supreme Court in case N.Natarajan v. B.K.Subbba Rao reported in [(2003) 2 M.Crl. No. 11/2021 Page No. 9 of 12 SCC 76] was pleased to hold as under :-
(i) "15.We are conscious of the fact that the learned Designated Judge has not eXercised his power under Section 340 CrPC as yet to lodge a complaint nor has he proceeded to hold an inquiry but at the same time we must notice that issue of notice on an application of this nature would have serious impact upon the Public Prosecutor in conduct of the case particularly when at every stage he has got to be conscious whether any of his statements would attract Section 340 CrPC. This is not the kind of atmosphere where a Public Prosecutor can function effectively, independently and fearlessly. In the conduct of the case a Public Prosecutor must have full freedom and he can even give up certain cases and request the court to discharge or acquit any accused. If that kind of autonomy is to be enjoyed by the Public Prosecutor, he cannot be fettered in conducting the proceedings. By initiating the proceedings against him, the learned Designated Judge has crippled the freedom of the Public Prosecutor in functioning effectively and such a matter certainly results in serious miscarriage in administration of justice and no advocate would be safe if such proceedings are initiated on the basis of the allegations of the nature made in the complaint. Either the learned Designated Judge has not applied his mind or he has not understood the scope of the application and if he had done either, he would have dismissed the application. That we do M.Crl. No. 11/2021 Page No. 10 of 12 now.
11. Since, the complainant has failed to show any cogent proof which may enable this court to hold that the reply filed by the ASI Abdul Rahil(Now SI) forwarded by Sh. Manoj Kumar, the then SHO posted in PS New Seelampur, Delhi in the bail application was based on the falsehood and the facts of the judgments relied upon by the ld. Counsel for the complainant are totally different from the fact of this case, so,the said judgments are of no help for the complainant.
12. The law laid down by Hon'ble Supreme Court of India in above said cases, makes it clear that there must be a ground of nature higher than mere surmise or suspicion for initiating the proceedings U/sec. 340 of Cr.P.C and there must be distinct evidence of commission of an offence by such a person and mere suspicion cannot bring home the charge of perjury and the court has to determine as on the facts,whether it is expedient , in the interest of justice to inquire into the offence which appears to have been committed and in the case in hand,this court is inclined to hold that neither it is expedient in the interest of justice to inquire into the offences alleged to have been committed by the accused nor any fruitful purpose will be served by passing any order for enquiry U/sec. 340 of Cr.P.C. So the application filed by the complainant U/sec. 340 of Cr.P.C. r/w Sec.193/195/196/200/203/309/166/120-B of IPC is hereby dismissed.
M.Crl. No. 11/2021 Page No. 11 of 1213. File be consigned to Record Room.
Announced in the open court
on 28.11.2022 PAWAN Digitally signed by
PAWAN KUMAR MATTO
KUMAR Date: 2022.11.28
MATTO 16:54:09 +0500
(PAWAN KUMAR MATTO)
Additional Sessions Judge
(Special Judge NDPS)
North-East District,
Karkardooma Courts,Delhi.
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