Allahabad High Court
Iqbal Ahmad vs State Of U.P. Rep. Thru. Prin. Secy. Lko. ... on 24 July, 2024
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:49980 Court No. - 11 Case :- CRIMINAL APPEAL DEFECTIVE No. - 188 of 2024 Appellant :- Iqbal Ahmad Respondent :- State Of U.P. Rep. Thru. Prin. Secy. Lko. And Another Counsel for Appellant :- Neeraj Kumar Saxena,Gaurav Saxena,Jayaditya Rai,Lalla Chauhan,Rishi Saxena Counsel for Respondent :- G.A. Hon'ble Abdul Moin,J.
(I. A. No. 2 of 2024) This is application for condonation of delay in filing of the criminal appeal.
Learned A.G.A. for the respondent no. 1 does not intend to file objections to the application for condonation of delay.
On due consideration, the application is allowed.
The delay in filing criminal appeal is condoned.
Let office allot regular number to this criminal appeal.
Order on the Criminal Appeal
1. Heard learned counsel for the appellant and learned A.G.A. for the State-respondents.
2. The instant criminal appeal under Section 341 Cr.P.C. (Section 380 BNSS) has been filed aggrieved against order dated 02.05.2024 passed by the learned Additional Principal Judge, Court No. 6 in Criminal Misc Case No. 1762 of 2023 in re: Iqbal Ahmad vs Anjum Bano. By the said order learned court below has rejected the application filed under Section 340 Cr.P.C. of the appellant.
3. The contention of learned counsel for the appellant is that the respondent no. 2 has filed an application under Section 125 Cr.P.C. praying for maintenance. The said application is registered as Case No. 807 of 2019. Admittedly till date no interim order of maintenance has been granted by learned court below in favour of the respondent no. 2 during pendency of the aforesaid case. Considering the law laid down by Hon'ble Supreme Court in the case of Rajnesh vs and Neha and others, Manu/SC/0833/2020 the respondent no. 2 filed an affidavit, a copy of which is part of annexure 3 to the appeal (page 56). The appellant filed an application under Section 340 Cr.P.C. contending that the statements made by the respondent no.2 in the said affidavit were false so far as it pertain to the monthly income of the appellant, property possessed by the appellant as well as the educational and taxation details.
4. Learned counsel for the appellant claims that the appellant had also filed an affidavit in terms of the direction of Hon'ble Supreme Court in the case ofRajnesh (supra).
5. As already indicated above contending that the aforesaid affidavit filed by the respondent no. 2 was false in as much as false statements had been made in the said affidavit, an application under Section 340 Cr.P.C. was filed by the applicant. Learned court below, vide order impugned dated 02.05.2024, has rejected the said application by indicating that under Section 340 the court has to merely examine as to whether the document alleged was custodia legis or as to whether the conduct of the opposite party hindered the administration of justice or as to whether the opposite party wrongfully gained. Learned court below was of the view that no documents had been filed by the appellant herein except a statement of account of Syndicate Bank which had been filed after a period of four years from filing of the case under section 125 Cr.P.C. and further the interim maintenance application was also not decided consequently the application under Section 340 Cr.P.C. has been rejected.
6. Being aggrieved the instant appeal has been filed.
7. The argument of learned counsel for the appellant is that the application under Section 340 Cr.P.C. has been dealt with by the court below by treating the same as if the said application indicated filing of false documents by the respondent no. 2 rather, it had been indicated in the said application that false statements have been given in the affidavit which had been filed by the respondent no. 2 in pursuance to judgement of Hon'ble Supreme Court in the case ofRajnesh (supra).
8. In this regard, the attention of this Court has been drawn towards the provisions of Section 195(1)(b)(i) Cr.P.C. vis a vis 195(1)(b)(ii) Cr.P.C. indicating that there is difference between two provisions of which 195(1)(b)(i)Cr.P.C. pertains to an offence punishable under Section 193 to 196 IPC vis a vis 195(1)(b)(ii) Cr.P.C. which pertains to offences described under Section 463 punishable under Section 417, 475, 476 IPC.
9. The argument is that while filing application under Section 340 Cr.P.C. the appellant had indicated that it is the statement given in the affidavit, which had been filed by the respondent no. 2, which was false and not that the documents annexed in the said affidavit were false and consequently the learned court below has patently erred in rejecting the application filed under Section 340 Cr.P.C.
10. In this regard reliance has been placed on judgement of Hon'ble Supreme Court in the case of Bandekar Brothers Private Limited and another vs Prasad Vassudev Keni and others, (2020) 20 SCC 1 wherein the difference between195(1)(b)(i) Cr.P.C. and 195(1)(b)(ii) Cr.P.C. has been indicated by Hon'ble Supreme Court.
11. It is thus contended that learned court below has wrongly proceeded to reject the application under Section 340 Cr.P.C. and hence the appeal.
12. Learned counsel for the appellant has also stated that order on application for grant of interim relief has been reserved.
13. Having heard learned counsel for the appellant and having perused the record it emerges that an application under Section 125 Cr.P.C. has been filed by the respondent on. 2 in the year 2019. Despite lapse of almost 5 years the said application is still pending for consideration. The respondent no. 2 has filed the application praying for interim maintenance or maintenance under provisions of Section 125 Cr.P.C. which is still to see its culmination despite lapse of 5 years. Despite the pendency of the aforesaid case and the respondent no. 2 having filed an affidavit in pursuance to the directions issued by Hon'ble Supreme Court in the case of Rajnesh (supra) the appellant filed an application alleging that the statement made in the application filed by the respondent no. 2 are fake, fabricated and false and hence action should be initiated against respondent no. 2.
14. Admittedly no document or other evidence has been filed by the appellant indicating as to how the statement made by the respondent no. 2 in the affidavit is false. This fact has been examined by the learned court below while passing the order impugned dated 02.05.2024 wherein the only document which has been filed by the appellant was the statement of account of Syndicate Bank which incidentally is of the year 2022 i.e. filed after 4 years of filing of the case which has been considered by the learned court to clearly hold that the same does not make the affidavit filed by the respondent no. 2 to be fake, fabricated or false. Merely because learned court below while rejecting the application under Section 340 Cr.P.C. has not distinguished the provisions of Section 195(1)(b)(i) Cr.P.C. and 195(1)(b)(ii) Cr.P.C. would not persuade this Court to take a different view as to what has been taken by learned court below while passing the order impugned.
15. Here it is pertinent to mention that the provisions of Section 125 Cr.P.C. have been held to be beneficial legislation and that a technical approach should not be taken while dealing with such cases. Hon'ble Supreme Court in the case of Noor Saba Khatoon vs Mohd. Quasim, (1997) 6 SCC 233 has already held the provisions of Section 125 Cr.P.C. to be a beneficial legislation.
16. Likewise Hon'ble Supreme Court in the cases of Iqbal Bano vs State of U.P., (2007) 6 SCC 785, Mohd. Abdul Samad vs State of Telangana passed in Criminal Appeal No. 2842 of 2024 dated 10.07.2024 has held the provisions of Section 125 Cr.P.C. to be beneficial provision.
17. Accordingly, considering the aforesaid judgements of Hon'ble Supreme Court and Section 125 Cr.P.C. being a beneficial provision, this Court is inclined to take a view that the impugned order dated 02.05.2024 passed by the learned court below whereby the application under Section 340 Cr.P.C. has been rejected calls for no interference as the same would amount to taking a hyper technical view of the matter.
18. Keeping in view the aforesaid discussion, no case for interference is made out.
19. Accordingly, the criminal appeal is dismissed.
Order Date :- 24.7.2024 J. K. Dinkar