Punjab-Haryana High Court
Jaspal Singh vs State Of Punjab on 18 September, 2012
Author: Ritu Bahri
Bench: Ritu Bahri
CRM No.M-37471 of 2010 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
CRM No.M-37471 of 2010
Date of decision:18.09.2012
Jaspal Singh
...Petitioner
Versus
State of Punjab
...Respondent
CORAM: HON'BLE Ms. JUSTICE RITU BAHRI
Present: Mr.N.S.Shekhawat, Advocate,
for the petitioner.
Mr.Abhishek Chautala, AAG, Punjab.
RITU BAHRI, J.
Quashing of FIR No.12 dated 14.2.2009 registered under Sections 193, 196, 199, 419, 120-B of IPC at Police Station, Anandpur Sahib, District Rupnagar and the proceedings consequential thereto are being sought.
On 3.7.2002 Rajender Kumar, Accountant of Royal Darshan was sent to B.C.L. for collecting empty cylinders. He did not come out of the BCL for 4-5 hours. Then truck driver Rakesh Kumar went inside to enquire about him and he was told that Rajender Kumar never came there. The driver informed D.N.Dwivedi, Works Executive of Royal Darshan telephonically. On 4.7.2002, D.N.Dwivedi reached the premises of M/S B.C.L. where he met with hostility by the staff. He approached the SHO, Police Station Sadar, CRM No.M-37471 of 2010 2 Bathinda, who did not take any action in the matter. On 5.7.2002, D.N.Dwivedi filed CRWP No.789 of 2002 in this Court for issuance of a writ in the nature of habeas corpus directing the release of the detenue Rajender Kumar from the illegal detention of the respondents. The said habeas corpus was duly supported by the affidavit of D.N.Dwivedi and he accompanied the Warrant Officer to Bathinda for search. Rajender Kumar was not traceable during search, but 102 cylinders were found and these were either marked as "DV" written with the white paint or with mark "Seema" and "AGL" engraved on the cylinders. The mark "DV" was appeared to have been removed with read paint and re-written as "BCL".
On 20.9.2002, a complaint was made by D.N. Dwivedi, Works Executive of Royal Darshan to SSP, Rupnagar regarding illegal confining Rajender Kumar and not returning the empty cylinders, but no action was taken. He filed another Crl. Misc. No.7692-M of 2003 in this Court on 27.1.2003 with a prayer to direct the State of Punjab and SSP Rupnagar and the SHO Police Station, Naya Nangal to register a FIR for the offences under Sections 342, 346, 347, 406, 420, 489, 120-B of IPC. Again the petition was duly supported by the affidavit of D.N.Dwivedi, Works Executive, Royal Darshan.
On 5.4.2003 M/s Royal Darshan Gasses Pvt. Ltd. Through Jaspal Singh, Director and D.N.Dwivedi, Works Executive filed a complaint bearing No.85/2003 under Section 344, 345, 346, 347, 406, 419, 420, 467, 471, 489 read with Section 120-B of IPC in the court of ld. Sub Judicial Divisional CRM No.M-37471 of 2010 3 Magistrate, Rupnagar. M/s Bathinda Chemicals Ltd. and 7 other officials of M/s Bathinda Chemicals Ltd. Including its Chairman and Managing Director and Directors were impleaded as the accused.
After filing of the complaint on 5.11.2003 Jaspal Singh, Director, Royal Darshan petitioner appeared as CW1; D.N.Dwivedi as CW2 before the court of learned SDJM Anandpur Sahib and Rajender Kumar appeared as CW3. On 6.7.2004, the learned Sub Divisional Judicial Magistrate, Anandpur Sahib summoned the accused under Sections 406, 420, 482, 467, 468, 344, 345, 346, 347, 120-B of IPC.
In December 2004, a CRM No.M-58192 of 2004 was filed by Sunil Kumar for quashing of the complainant Annexure P-3 and the summoning order dated 6.7.2004. At this stage, it requires mention that the accused had already won over one witness D.N.Dwivedi, Works Executive, Royal Darshan and had procured the affidavit of some person Rajender Kumar son of Madan Lal. It is wrongly stated that CW2 D.N.Dwivedi and Rajender Kumar CW3 were impersonated by the court of learned SDJM Anandpur Sahib and they had not given any statement before the Court in the complaint case and consequently it was prayed that the summoning order has been wrongly passed. In view of this, this Court was pleased to direct the learned SDJM to conduct an enquiry and to verify as to whether CW2 D.N.Dwivedi and CW3 Rajender Kumar son of M.L.Bajaj had appeared or not. It was also observed that in case it is found that the said 2 persons had appeared and deposed, the Magistrate would proceed with the CRM No.M-37471 of 2010 4 complaint. In case, it is found that someone else has impersonated in place of the said person, appropriate action would be taken under the Indian Penal code.
During enquiry, the statement of D.N.Dwivedi, Works Executive was recorded. It was apparent that D.N.Dwivedi had colluded with the accused. He clearly resiled from his earlier statement and stated that he never made any such statement in the court and had never appeared. However, he stated that he identified his signatures on each and every page of the complaint filed by M/s Royal Darshan Gases Private Ltd. He also stated that he never filed any complaint in any Court, however, the complaint bears his signatures. He still further admitted that he has seen his signatures on the statement as CW2 (Annexure P-4) and identified his signatures, but he had not made the statement. The second dispute in the said enquiry was with regard to the statement of CW3 Rajender Kumar son of Sh. M.L.Bajaj. Suprisingly during enquiry, a person Rajender Kumar son of Madan Lal was produced. D.N.Dwivedi also belongs to the same village. This person clearly stated that he had no knowledge regarding the case of M/s Royal Darshan Gases Private Ltd. Versus Bathinda Chemicals Ltd. and has not appeared as a witness in the case. Even he further stated that he does not know as to who is Rajender Kumar son of M.L.Bajaj, whose statement was recorded as CW3.
The learned SDJM Anandpur Sahib observed that Rajender Kumar son of Madan Lal, who had appeared in the Court now during CRM No.M-37471 of 2010 5 enquiry was different and his parentage is different from Rajender son of M.L.Bajaj, who had appeared as CW3 earlier. As such, he ordered issue of fresh notice to Rajender Kumar son of M.L.Bajaj.
On 3.1.2009, the summons issued to Rajender Kumar resident of Delhi were received back with the report that no such person was residing at the given address.
On 14.2.2009, the learned SDJM, Anandpur Sahib directed the SHO, Police Station, Anandpur Sahib to register the present FIR bearing No.12 dated 14.2.2009 under Sections 193, 196, 199, 419 and 120-B of IPC Police Station Anandpur Sahib, District Rupnagar.
Counsel for the petitioner has argued that direction given by the SDJM , Anandpur Sahib, on 14.2.2009 to register an FIR is against the provisions of Section 340 of Cr. P.C. The only course open to the learned SDJM was that after making enquiry he could record the finding to that effect; he could make a complaint in writing and send it to the Magistrate of First Class having jurisdiction; after taking sufficient security, he could seek appearance of the accused before the Magistrate.
On the other hand, counsel for the State has submitted that this Court in CRM No.M-58192 of 2004 issued direction to SDJM to conduct an inquiry and to verify whether CW2 D.N.Dwivedi and CW3 Rajender Kumar son of M.L.Bajaj had appeared in the court or not. During enquiry, the learned SDJM came to conclusion that Rajender Kumar son of Madan Lal appeared in the Court and now during enquiry was different and his CRM No.M-37471 of 2010 6 parentage is different from Rajender son of M.L.Bajaj, who had appeared as CW3 earlier. After coming to this conclusion, a direction was given to register the FIR.
The essential ingredients to proceed with complaint under Section 195 as laid down by Section 340 is that the Court has to form an opinion that it is expedient in the interest of justice that such an enquiry should be made into any offence. It is not sufficient that false affidavit has been given in the Court which necessitate initiation of inquiry. No doubt that the petitioner has given two affidavits in criminal proceedings in the Court of law. However, at the time of entertaining the complaint made by the complainant, the Court has to record a finding that affidavit was false and also that it was in the interest of justice, further enquiry should be made. It is not necessary that in every case where false affidavit or statement has been given in the Court proceedings, the Court has to refer the matter for for further enquiry against the person who has given a false affidavit. Hon'ble the Supreme Court in N. Natrajan v. P.K. Subba Rao, AIR 2003 SC 541 has held that if the complaint is made, the Scheme of Section 340 Cr.P.C. is that the Court will have to act in the interest of justice on the complaint or otherwise. It cannot straightway proceed to issue notice against the person, who has appeared to commit an offence. In the absence of opinion of the Court on a complaint that it is in the interest of justice to refer the complaint for further proceedings are initiated and the conviction is liable to be set aside. Hon'ble the Supreme Court in B.K. CRM No.M-37471 of 2010 7 Gupta's case (supra) has held in para 2, which reads as under:
"2. Learned counsel appearing for the appellant urged that there is nothing on record to show that the High Court while making an inquiry under Section 340 Cr.P.C. applied its mind whether it was expedient in the interest of justice that a complaint be filed against the appellant. Under Section 340 Cr.P.C., if the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into an offence referred to in Clause (b) of Sub-Section (i) of Section 195 Cr.P.C. in relation to any proceedings in that Court, the Court after such preliminary inquiry may direct for filing a complaint before the appropriate Court against such person."
The mandatory provision of Section 340 Cr.P.C. requires that the Court has to form an opinion that it is in the interest of justice that inquiry should be made to an offence under Clause (b) of sub-Section (i) of Section 195 Cr.P.C.
Reference was made in para 18 of the judgment of Hon'ble the Supreme Court in Iqbal Singh Marwah and another v. Meenakshi Marwah and another, 2005 (2) RCR Criminal 178, which reads as under:
"18. In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding CRM No.M-37471 of 2010 8 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 interest 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(i)(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 CRM No.M-37471 of 2010 9 of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)
(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded."
Following the law laid by Hon'ble the Supreme Court, a Coordinate Bench of this Court in Onkar Chand v. State of UT Chandigarh 2008(4) RCR (Criminal) 265 had quashed the proceedings initiated on a complaint filed under Section 195(1) (b) on the ground that order did not show that the Court had formed an opinion that it was in the int4erest of justice that the complaint should be entertained and enquiry should be conducted.
In Ballab Lal v. State of Haryana 2009(5) RCR (Criminal) 511, a Coordinate Bench of this Court had an occasion to examine the case where a false certificate from the Doctor that the accused had suffered a fracture had been obtained. Thereafter, accused filed a private complaint in the Court against the complainant and tendered false certificate in evidence. Aggrieved party lodged an FIR and the accused was convicted under Section 195 IPC and sentenced to three years RI by the Court. The conviction and sentence was set aside. Applying the law laid down by Hon'ble the Supreme CRM No.M-37471 of 2010 10 Court to the facts of the present case, the investigating agency proceeded against the petitioner on the letter sent to the Superintendent of Police, the proper course should have been that the Court of District and Sessions Judge should have passed an order expressing its opinion that it was in the interest of justice to make preliminary enquiry on the issue of filing false affidavit in the Court straightway directing the the Superintendent of Police to initiate the criminal proceedings and register FIR is not in accordance with law.
In the facts of the present case, the learned SDJM Anandpur Sahib directed the SHO Police Station Anandpur Sahib on 14.02.2009 to register the present F.I.R bearing No.12 dated 14.2.2009 under Sections 193, 196, 199, 419 and 120-B of IPC Police Station Anandpur Sahib, District Rupnagar. As per the mandatory provisions of Section 340 Cr.P.C, the SDJM was required to record the finding after making the enquiry that it is in the interest of justice that the complaint should be registered for making a false statement in the Court. After recording so, he could make a complaint in writing and send it to the the Magistrate of First Class having jurisdiction; after taking sufficient security, he could seek appearance of the accused before the Magistrate. Giving a direction to the SHO Police Station Anandpur Sahib to register the F.I.R is against the provisions of Section 340 Cr.P.C as held by Hon'ble the Supreme Court in the above cited judgments.
Accordingly, FIR No.12 dated 14.2.2009 registered under Sections 193, 196, 199, 419, 120-B of IPC at Police Station, Anandpur Sahib, CRM No.M-37471 of 2010 11 District Rupnagar is quashed.
However, a liberty is given to SDJM, Anandpur Sahib to proceed afresh in accordance with law.
Accordingly, the present petition is allowed.
(RITU BAHRI) JUDGE 18.09.2012 Mks/G.Arora