Andhra HC (Pre-Telangana)
K. Rajagopala Rao vs P. Radhakrishna Murthy on 28 January, 2002
Equivalent citations: 2002(2)ALD(CRI)213, 2002(3)ALT513, 2002CRILJ3405
Author: Bilal Nazki
Bench: Bilal Nazki
ORDER
1. Heard the learned counsel for the parties. Since the controversy involved is very short, the revision petition is being disposed of at this stage with the concession of the learned counsel for the parties.
2. It appears that the petitioner moved an application under section 340 of the Code of Criminal Procedure (for short 'the Code') seeking prosecution of the respondent on the ground that he had fabricated a document in a proceeding which was pending before the I-Addl. Junior Civil Judge, Vijayawada. Surprisingly the trial court in its order stated, "At the outset this petition is not maintainable u/s 340 Cr.P.C., because criminal procedure code is not applicable in the civil proceedings. Any how, I am considering this petition u/s 151 CPC but the point arose for my consideration is whether the petitioner is entitled for the relief?" It is settled law that section 340 of the Code is applicable to all proceedings in all Courts irrespective of the fact whether the matter in a Court in which allegedly an offence mentioned in section 195 of the Code was committed, was a criminal case or civil case. Even section 340 of the Code is applicable to the Revenue Courts. Section 340 is reproduced;
"340. Procedure in cases mentioned in section 195 - (1) When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests 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 -
record a finding to that effect;
make a complaint thereof in writing;
send it to a Magistrate of the first class having jurisdiction;
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 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 -
where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
in any other case, by the presiding officer of the Court.
(4) In this section, "Court' has the same meaning as in section 195."
3. From bare perusal of this provision in the Code it is abundantly clear that if an offence mentioned in section 195 appears to have been committed in relation to proceedings in a Court that Court has the power under section 340 to hold an enquiry and after enquiry (a) record a finding to that effect (b) make a complaint thereof in writing and (c) send it to Magistrate of First Class having jurisdiction. The word "Court" used in the provision is important and it is not important whether the matter, with regard to which there is a complaint of commission of an offence mentioned under section 195, was of civil nature or criminal nature. The word "Court", as is well settled, indicates that there must be power to record evidence and to come to a judicial determination on the evidence so recorded. When an offence in the nature of offence found in section 195 is committed in proceedings in a Court, the Court, irrespective of the nature of the proceedings, is entitled to hold an enquiry under section 340. Therefore, the learned Judge was clearly in error in believing that section 340 of the Code was not applicable to the application before him.
4. The learned counsel for the respondent, however, submits that although the trial court has committed a mistake by holding that section 340 of the Code was not applicable, but it has even otherwise considered the application on merits and dismissed. He refers to para-6 of the trial Court's order. I have gone through the order of the trial court, but this is not a compliance of section 340 of the Code which contemplates an enquiry before coming to a conclusion. Admittedly the learned Judge was labouring under a wrong impression that section 340 of the Code was not applicable, therefore that was the primary reason for dismissing the application.
5. With these observations, this revision petition is allowed, the order of the trial court is set aside and the case is remanded back to the learned Judge for fresh disposal in accordance with law. The parties through their counsels are informed that they shall appear before the trial court on 11-2-2002.