Allahabad High Court
Satya Narayan Mishra vs State Of U.P. And 3 Others on 7 November, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:213731 Reserved Court No. - 78 Case :- CRIMINAL APPEAL No. - 9971 of 2023 Appellant :- Satya Narayan Mishra Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Narendra Kumar Pandey,Sanjay Pratap Singh Counsel for Respondent :- G.A.,Rajesh Kumar Asthana Hon'ble Raj Beer Singh,J.
1. Heard learned counsel for the appellant, learned counsel for the respondent No. 2/informant and learned A.G.A. for the State. Learned counsel for the respondent No. 2 states that he does not intend to file any counter affidavit.
2. This appeal has been preferred under section 341 CrPC against the judgment and order dated 28.02.2023, passed by the learned Additional Sessions Judge/ Special Judge (POCSO), Court No. 1, Bhadohi in Crl. Misc. case No. 310/2019, arising out of crime No. 45/2019, under section 363/366/376/342/506 IPC and section ¾ POCSO Act, PS Koirauna, District Bhadohi, whereby in proceeding under section 340 CrPC, the Court has directed to the Chief Judicial Magistrate, Bhadohi to register a complaint under section 193/197/465/468/471 IPC against the appellant and one Matacharan and Phoolpatti.
3. Perusal of record shows that the respondent No. 2 is informant of case crime No. 45/2019, which was lodged against accused Omprakash. During pendency of the case, Matacharan, who is father of accused Omprakash, has filed an application alleging that the date of birth of accused Omprakash is 09.10.2003 and on the date of incident he was below 18 years of age and thus, he may be declared juvenile. In inquiry the appellant, who is Principal of Narayan Inter college, has appeared as CW -3 and deposed that in July 2013 the accused took admission in class VIth in the said college on the basis of transfer certificate of Saraswati Shiksha Mandir, wherein, his date of birth was shown as 09.10.2003 and later on the accused has appeared in high-school examination with same date of birth. However, the court came to conclude that the first attended school of accused Ompraksh was Primary school, Bhabhori Deedh, wherein, his date of birth was 14.07.1999 and thus, the application filed on behalf of accused Omprakash for declaration of juvenility, was rejected.
4. Thereafter, the respondent No. 2 / informant of the case has moved an application under section 340 CrPC alleging that in the aforesaid inquiry, said Matacharan, Phoolpatti and the appellant have concealed real date of birth of accused Omprakash and produced false documents to show that accused Omprakash is minor and thus proceedings under section 340 CrPC be initiated against them. During inquiry under section 340 CrPC, informant Sheela Devi, Umashankar Yadav, headmaster of Primary school Bhabhori and Rameshwar Shukla were examined as CW 1 to CW-4. It appears that without issuing any notice to the appellant or to said Matacharan and Phoolpatti and without providing any opportunity of hearing to them, the Court concluded that the appellant and said Matacharan and Pholpatti have fabricated false evidence and produced the same in said inquiry and directed the Chief Judicial Magistrate to register a complaint against the appellant and said said Matacharan and Phoolpatti for offence under section 193/197/465/468/471 IPC.
5. Learned counsel for the appellant argued that the appellant was working as Principal of Sri Narayan Inter College, where accused Om Prakash has taken admission in class 6th and he has produced his transfer certificate from his previous school, wherein, his date of birth was shown 09.10.2003 and thus, the said date of birth was entered into the school record and that date of birth continued in the school record till 10th class examination. Learned counsel submitted that appellant, being principal of the school, was not required to inquire about the genuineness of the date of birth mentioned in the certificate of previous school. There is absolutely no evidence that the appellant has forged or fabricated any evidence. Referring to facts of the matter, it was submitted that no prima facie case is made out against the appellant and thus, impugned order is illegal and against facts and liable to be set aside.
6. Learned AGA and learned counsel for respondent No. 2/first informant have vehemently opposed the appeal and submitted that the appellant being principal, did not enquire whether the date of birth of accused Om Prakash shown in alleged transfer certificate of Saraswati Shiksha Mandir was correct or not and whether the accused has studied there or not. The appellant has made a false statement in the inquiry that date of birth of accused Omprakash was 09.10.2003. It was submitted that the appellant was involved in fabricating and producing false evidence. It was further submitted that there is no illegality or perversity in the impugned order.
7. I have considered rival submissions and perused the record.
8. Before proceeding further, it would be apt to refer the provisions of the section 340 CrPC, which reads reads as under:-
"340. (1) When, upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest 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 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.
(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.
(4) In this section," Court" has the same meaning as in section 195."
9. A perusal of section 340 Cr.P.C. shows that these provisions are applicable in respect of such cases which are covered by section 195(1)(b) Cr.P.C.. Section 195(1)(b) reads as under:-
"195(1) No Court shall take cognizance -
(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, or
(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, or
(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"
10. The object of section 340 Cr.P.C. is to provide a safeguard against frivolous and vexatious prosecution. For taking action under section 340 Cr.P.C., the Court has to form an opinion that it is expedient in the interest of justice that an inquiry should be made for an offence referred to in section 195(1)(b) Cr.P.C., which appears to have been committed or in relation to a proceeding in that Court. In case of Dr S. P. Kohli V The High Court Punjab and Haryana, reported in AIR 1978 SC 1753, the Hon'ble Apex Court held that prosecution for perjury should be sanctioned by Courts only in those cases where it appears to be deliberate and conscious and the conviction is reasonably probable or likely. It is also well recognized that there must be a prima facie of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge.
11. In Chajoo Ram v. Radhey Shyam and another AIR 1971 SC 1367, the court held:
"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."
12. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur], the Court held:
"4. As is plain from the aforesaid stances adopted by the parties, they are out for personal vendetta. It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other. The primary object to take proceedings under Section 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, when the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this Court to enter into the fact and become a complainant at the behest of the husband-petitioner. Thus, I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties."
13. It is thus clear that in every inquiry under section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section 340 CrPC is conditioned by the words "court is of opinion that it is expedient in the interests of justice". In fact such a course has to be adopted only if the interest of justice requires and not in every case. 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 would be pertinent to mention that the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other.
14. Coming to facts of the present case, it may be seen that in case crime No. 45/2019, under section 363/366/376/342/506 IPC and section ¾ POCSO Act, PS Koirauna, District Bhadohi, an application was filed on behalf of accused Omprakash claiming juvenility. In that application, it was alleged that the date of birth of accused Omprakash is 09.10.2003 and on the date of incident he was below 18 years of age and thus, he be may declared juvenile. In inquiry the appellant, who is Principal of Narayan Inter college, appeared as CW -3 and deposed that in July 2013 the accused took admission in class VIth on the basis of transfer certificate of Saraswati Shiksha Mandir, wherein his date of birth was shown as 09.10.2003 and later on the accused has appeared in high-school examination with same date of birth. However, the trial court came to conclude that the first attended school of accused was not Saraswati Shiksha Mandir but Primary school, Bhabhori Deedh, wherein his date of birth was shown as 14.07.1999 and thus, the application filed on behalf of accused Omprakash for declaration of juvenility, was rejected. Thereafter, the informant of the case / respondent No. 2 has filed an application under section 340 CrPC alleging that in the aforesaid inquiry, the father and mother of accused Omprakash, namely Matacharan and Phoolpatti and the appellant have concealed real date of birth of accused Omprakash and produced forged documents in order to show the accused as minor and thus proceedings under section 340 CrPC be initiated against them. Without issuing any notice to the appellant and without providing any opportunity of hearing to them, the Court concluded that the appellant and said Matacharan and Phoolpatti have fabricated false evidence and produced the same in said inquiry and directed the Chief Judicial Magistrate to register a complaint against the appellant and said Matacharan and Fulmati for offences under section 193/197/465/468/471 IPC. It may be seen that the appellant was working as Principal of Sri Narayan Inter College, where accused Om Prakash has taken admission in class 6th and he has deposed that at the time of admission, accused has produced his transfer certificate of Saraswati Shiksha Mandir, wherein, his date of birth was shown 09.10.2003 and thus, the said date of birth was entered into the school record. It was shown that accused Omprakash has appeared in the school 10th class examination with same date of birth. The appellant has merely made statement stating these facts. In view of these facts, the appellant was not required to verify from Saraswati Shiksha Mandir whether the accused Omprakash has studied in said Saraswati Shiksha Mandir or not and whether his date of birth was shown in said said transfer certificate of Saraswati Shiksha Mandir was correct or not. Further, the High school certificate is a relevant document in inquiry of juvenility and the appellant has proved the same. There is absolutely no material to show that the appellant has fabricated any false evidence. There is no material to make out a case under section 193/197/465/468/471 IPC against the appellant. In view of these facts and circumstances the conclusion of the trial Court that the appellant has fabricated false evidence and produced the same in court is wholly against the facts and law and suffers from patent perversity. It appears that the trial court has not even provided an opportunity of hearing to the appellant before passing the impugned order. As observed earlier, in such cases the prosecution for perjury should be ordered only 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 instant case, no prima facie case of fabricating any false evidence or any deliberate falsehood is made out and that in view of attending facts and circumstances of the case it was not wholly expedient to order prosecution for perjury. In fact the direction of the Trial court for prosecution of the appellant for perjury and fabrication of false evidence is misuse of the process of law. The impugned order is against facts and law and the same suffers from patent perversity and thus, liable to be set aside.
15. In view of aforesaid, the impugned order dated 28.02.2023 passed by the learned Additional Sessions Judge/ Special Judge (POCSO), Court No. 1, Bhadohi is set aside. The appeal is allowed.
Order Date :- 07.11.2023 Suraj/Anand