Himachal Pradesh High Court
Dinesh Chander Sharma vs State Of H.P on 3 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH .
Cr.MMO No. 61 of 2018
Reserved on: 29.11.2019
Date of decision: 03.01.2020
Dinesh Chander Sharma ... Petitioner.
Versus
State of H.P. ... Respondent
Coram: r
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 YES
For the petitioner: Petitioner in person.
For the Respondent: Mr. Nand Lal Thakur and Mr. Ashwani
K. Sharma, Addl. Advocates General
Anoop Chitkara, Judge
Challenging the dismissal of the appeal filed under Section 341 Cr. P. C. by the Sessions Court, Una, upholding the dismissal of the application by Judicial Magistrate under Section 340 CrPC, the applicant, who is a practicing Advocate, has come up before this Court seeking prosecution of some of the prosecution witnesses for perjury.
2. One Smt. Raj Rani, who was sister-in-law of the applicant/petitioner, way back in the year 1999, had filed a complaint against him in the Police Station, 1 Whether reporters of Local Papers may be allowed to see the judgment?
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Una for commission of offences punishable under Sections 498A and 506 IPC. On .
the basis of the said information an FIR No. 601 of 1999, dated November 21, 1999 was registered in the file of Police Station, Una, for commission of the said offences.
3. The present petitioner was arraigned as an accused in the said FIR and subsequently prosecuted.
4. After recording of the evidence, when the trial was at the final stages, the accused/petitioner filed an application under Section 340 CrPC, in the Court of Judicial Magistrate 1st Class, Una, H.P.
5. The allegations levelled in the said application were that during the examination of the prosecution witnesses some of them while deposing on oath, intentionally made false statements against the applicant. He further alleged that the witnesses attempted to corroborate the facts by making false statements, and also to overshadow the illegalities committed during the investigation of the case.
In the light of the above allegations, the applicant sought that an inquiry to be conducted for the offence of perjury.
6. Vide impugned order dated February 9, 2015, passed in Cr. Misc.
Application No. 27-IV-2015, in Cr. Case No. 46-II-08/99, titled as State Vs. Dinesh Chander Sharma, the Judicial Magistrate dismissed the said application, holding that the Court did not find on record any such offence, which was expedient in the interest of justice, in exercise of powers under Section 340 CrPC.
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7. Feeling aggrieved against such dismissal of application, the applicant .
filed a criminal appeal in the Sessions Court. Vide judgement dated September 5, 2017 passed in Cr. Appeal No. 13 of 2015, titled Dinesh Chander Sharma vs. State of H.P., the Additional Sessions Judge-II, Una, District Una, H.P., upheld the impugned order passed by Judicial Magistrate, and dismissed the appeal. Challenging the dismissal of the Cr. Appeal filed under Section 341 CrPC, the applicant/accused has come up before this Court by filing the present petition under Article 227 of the Constitution of India read with Section 482 CrPC, seeking direction to conduct inquiry under Section 340 CrPC.
8. I have heard Shri Dinesh Chander Sharma, Advocate, who appeared in person, and Shri Ashwani Kumar Sharma and Shri Nand Lal Thakur, Additional Advocates General for the respondent/State and waded through the entire record.
DISCUSSIONS AND REASONING
9. A bare perusal of the application filed by the accused under Section 340 CrPC reveals that there is no reproduction of a single sentence, which according to applicant amounted to perjury. Section 340 CrPC states that when an application is filed, and the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made only then the Court will proceed further. Thus, what the Court is to see the contents of the application, and not to ::: Downloaded on - 04/01/2020 20:27:49 :::HCHP ...4...
pursue the evidence without any reference of the same in the application. In the .
present case, the application is general in nature.
10. The relevant extract of the application is reproduced as under: -
"2. that the aforementioned persons, being legally bound by oath to state the truth, intentionally made their statements before the concerned Courts in the aforenoted case which were false and which they knew to be false (I) concerning the applicant in material particulars and (ii) the investigation process held with regard to related F.I.R. involved in the above noted case thereby attempting to corroborate the facts and circumstances narrated in the said F.I.R and to overshadow the illegalities committed by the concerned police officials in the course of its related investigation.
(3) That it is expedient in the interest of justice that an inquiry should be made into the aforesaid offence of perjury since the said offence is duly proved what to speak of a prima facie case being made out in that regard. Hence, this application for achieving the ends of justice.
It is, therefore, humbly prayed that this application may please be allowed and an inquiry concerning the offence of perjury committed by the aforementioned persons in their respective statements made on oath in the above noted prosecution case be held for the purpose of verification for making a complaint in that regard for the ends of justice."
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11. A perusal of this application reveals that it is absolutely general .
statement. What was in the mind of the applicant, he never revealed it to the Court, and it remained buried deep in his grey matter. The Court is not to make a fishing enquiry to find out perjury. The burden was on the applicant to refer to the relevant portion(s) of the incriminating evidence in his application, which constitutes perjury.
12. It shall be appropriate to refer to the relevant judicial precedents:
(a) In Iqbal Singh Marwah and Another v. Meenakshi Marwah and another, (2005) 4 SCC 370 a Constitution Bench of Supreme Court holds, "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 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 ::: Downloaded on - 04/01/2020 20:27:49 :::HCHP ...6...
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. ...
(b) In N. Natarajan v. B.K. Subba Rao, (2003) 2 SCC 76, Supreme Court holds,
8. ...It is well settled in criminal law that a complaint can be lodged by anyone who has become aware of a crime having been committed and thereby set the law into motion. In respect of offences adverted to in Section 193 Criminal Procedure Code, 1973 there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 Criminal Procedure Code, 1973 is invoked to get over the bar imposed under Section 195 Criminal Procedure Code, 1973 In ordinary crimes not adverted to under Section 195 Criminal Procedure Code, 1973 if in respect of any offence, law can be set into motion by a citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 Criminal Procedure Code, 1973 For that matter, the wordings of Section 340 Cr.P.C. are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision..."
(c) In Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113, Supreme Court holds, "5. There are two pre conditions for initiating proceedings under Section 340 Cr.P.C. - (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 of the Cr.P.C. and (ii) it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
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6. 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 Indian Penal Code (45 of 1860) (hereinafter referred to as "the 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 in Section 340(1) of the Cr.P.C., having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. and Another v. Union of India, (1992) 3 SCC 178). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.
7. 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 of the Cr.P.C. 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 and Others, (2002) 1 SCC 253).
10. No doubt, such an opinion can be formed even without conducting a preliminary inquiry, if the formation of opinion is otherwise possible. And even after forming the opinion also, the court has to take a decision as to whether it is required, in the facts and circumstances of the case, to file the complaint. Only if the decision is in the affirmative, the court needs to ::: Downloaded on - 04/01/2020 20:27:49 :::HCHP ...8...
make a complaint in writing and the complaint thus made in writing is then to be sent to a Magistrate of competent .
jurisdiction."
13. In view of the above discussion, I find no merit in the petition and the same is dismissed. The Registry to return the record. All pending applications are also closed.
January 3, 2020 (Anoop Chitkara)
(TM) Judge
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