Madhya Pradesh High Court
Mohammad Ibrahim Mohammad Yusuf vs Imdadulla Haji Abdul Sattar And Ors. on 21 July, 1994
Equivalent citations: 1995(0)MPLJ255, 1995 A I H C 3596
JUDGMENT D.P.S. Chauhan, J.
1. The present appeal by Mohammad Ibrahim is directed against the order dated 20th February, 1991 passed by Shri R. D. Kabra, Additional District Judge, Burhanpur, district Khandwa under Section 341 of Criminal Procedure Code. The appeal is filed against 6 persons, namely, Imdadulla, Akhtar Hussain Asif, Saiyad Jafar Ali, Abdul Majid, Nairn Akhtar and Mohd. Ismail.
2. The facts of the case as are relevant for the purpose of present appeal are as :-
(a) That warrant of possession over immovable property was issued against the aforesaid respondents Nos. 1 to 6 on 1-2-1991 by Additional District Judge, Burhanpur in T. C. Execution Case No. 116/2/88. In the said case the respondents made an application on 11-2-1991 through a lawyer Shri Bipat, which was accompanied with an affidavit filed by Shri Abdul Majid, the respondent No. 4 in the present appeal, and this affidavit is the foundation for action under Section 340, Criminal Procedure Code.
3. Heard Shri Fakhruddin, Senior Advocate assisted by Shri Rashid Siddiqui, Advocate for the appellants and Shri Z. M. Shah, learned counsel for the respondents Nos. 1, 4 and 6. Rest of the respondents are represented but their counsel are not present in Court though the case is taken up in the revised list after waiting for a long time.
4. Learned counsel for the appellant submitted that Shri Abdul Majid filed a false affidavit before the aforesaid court giving a declaration that against the order of the said Court dated 1-2-1991 issuing warrant of possession over immovable property a revision was filed before the High Court of Madhya Pradesh at Jabalpur on 6-2-1991. In this connection Para 1 of the affidavit, which deals with the matter and is relied on is as extracted below :-
^^1- ;g fd mä izdj.k esa vukosnd ds fo:/;
fnukad 1&2&1991 dks py vpy laifÙk ds dCts ds okjaV dk vkns'k gqvk gSA vukosnd us mä vkns'k ls larq"V ,oe~ ihfM+r gksdj ,d fuxjkuh Jheku mPp U;k;ky;] tcyiqj] e/;izns'k ds le{k fnukad 6&2&1991 dks izLrqr dhA** Further in paragraph 2 of the said affidavit it has been stated by the deponent of the affidavit that he on 11-2-1991, at 2.00 P.M. received a telephonic- message that in the aforesaid revision stay order has been obtained. Paragraph 2 of the said affidavit is as extracted below :-
^^2- ;g fd eq>s vkt fnukad 11&2&1991 dks nks cts VsyhQksu }kjk Kkr gqvk gS fd mä fuxjkuh esa LFkxu vkns'k izkIr gqvk gSA** On the basis of statements made in aforesaid two paragraphs it was prayed that the proceedings on the basis of warrant of possession be kept in abeyance till 14-2-1991 and the same deserves to be quashed. So far as the aforesaid paragraphs are concerned, they are based on personal knowledge. The declaration in the aforesaid affidavit was treated to be true by the Court and on the basis whereof the Court adjourned the proceedings till 13-2-1991.
5. Learned counsel for the appellant submitted that it is a case of false declaration made by the respondent No. 4 before the Court of justice. According to the learned counsel for the appellant, declaration made was false and the deponent of the affidavit was knowing the same to be false, filed a false affidavit and according to him case was covered under Section 193, Indian Penal Code.
6. Perused the order under appeal dated 20-2-1991.
7. It appears that the Court did not apply its mind to the prayer of the appellant for action under Section 340, Criminal Procedure Code and did not form any opinion as to whether any case for action under Section 340, Criminal Procedure Code has been made out by the appellant or not. The Court observed that the relief which the appellant has sought therein could be sought by him by means of separate proceedings by initiating action against the person concerned and on this basis application was rejected. Learned counsel for the appellant submitted that the Court has not applied its mind and without considering the legal aspects, rejected the application. Section 195(1)(b), Criminal Procedure Code provides that in respect of such offences as mentioned therein no Court shall take cognizance except on the complaint in writing of that Court or of some other Court to which that Court is subordinate.
8. Heard the learned counsel for the respondents Nos. 1, 4 and 6, Learned Counsel made two-fold submissions :
(i) That affidavit was not based on personal knowledge but was based on the telephonic message received by the respondent No. 4.
(ii) It is only the Court which can file complaint and the present application was incompetent at the behest of the party as under the law neither a party to the case, nor any person has locus standi to maintain such application.
9. So far as the first point is concerned, the matter is dealt with earlier that both the paragraphs 1 and 2 of the affidavit are based on the personal knowledge of the deponent, the respondent No. 4 in the present appeal, and he also made statement in the affidavit categorically regarding filing of the revision in this Court, which is not based on any telephonic message. This fact was found false as even no revision petition was filed in the High Court and on this aspect parties are not at variance. The second paragraph of the affidavit speaks regarding telephonic message but that has not been disclosed as to from whom that telephonic message was received and, therefore, the intention of the deponent of the affidavit cannot be said to be bona fide.
10. In support of his submissions, learned counsel for the respondents placed reliance on the case of State of U.P. v. Suresh Chandra, AIR 1984 SC 1108. The case relied on by the learned counsel for the respondents does not help him rather it helps the appellant. In that case the matter related to reuser of used stamps in the Allahabad High Court and the Registrar, with the permission of the Chief Justice of the High Court, reported the matter to the Inspector General of Police, U. P., who ordered the Criminal Investigation Department of U. P. to investigate into the matter and ultimately three charge-sheets were submitted for offences under Sections 262, 263, 467, 471, 420 and 120B of the Indian Penal Code. The proceeding under Section 482, Criminal Procedure Code for quashing the charge-sheet was initiated in the High Court and the High Court held that so far as the offences under Sections 467, 471 and 120B, Indian Penal Code were concerned as they fell within the ambit of Section 195(1)(b)(ii) of the Code, ho cognizance could be taken by the Magistrate without a complaint being filed. The judgment of the Allahabad High Court on this aspect was affirmed by the Supreme Court. This judgment, it is submitted, is relating to the Point No. 2 as advanced by the learned counsel for the respondents. The judgment deals with the different aspects i.e. the prosecution cannot file a complaint so far as the offences Under Section 195(1)(b)(ii) of the Criminal Procedure Code are concerned and for the offences, the complaint could be filed only by the Court. In the present case, the situation is different. The application for initiating proceedings under Section 340, Criminal Procedure Code was filed and in fact no complaint was filed regarding the offence before the Court for action. It was a prayer made to the Court under the provisions of Section 340, Criminal Procedure Code for action. Thus, the submission as advanced by the learned counsel for the respondents is sans merit and is rejected.
11. Learned counsel for the appellant has filed the appeal for action against the respondents. So far as other respondents, except respondent No. 4 is concerned, they are not covered and no action under Section 340, Criminal Procedure Code can be taken against them as they have not filed any false affidavit or declaration. The only thing pointed out by the learned counsel for the appellant is that they made joint application to the Court and, therefore, their liability cannot be separated. This part of the argument is sans merit. The application is under the signature of the counsel, as has been stated above, and apart from this the application by itself is not a declaration, therefore, no occasion for enquiry against the respondents other than respondent No. 4 is there.
12. Since the Court below against whose order the present appeal is filed has not applied its mind to the controversy in question and has not passed any order in consonance with Section 340, Criminal Procedure Code as the Court has not formed opinion regarding the matter on merit either way. No finding has been recorded whether it is expedient in the interest of justice that enquiry should be made as referred to in sub-section (2) of Section 195, Criminal Procedure Code. The order under appeal is laconic. It deserves to be set aside with the direction to the District Judge to consider the application on merit and pass the order according to law.
13. The appeal is accordingly partly allowed. The order dated 20th February, 1991 passed by the Additional District Judge, Burhanpur, district Khandwa is set aside and the matter is remanded to him for consideration afresh on merit having regard to the provisions of law. The appeal so far as the other respondents except for respondent No. 4 Abdul Majid is concerned, is dismissed.