Delhi District Court
Sh. Subash Chander Sharma vs The State on 8 May, 2014
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE : NORTH EAST:
KARKARDOOMA COURTS, DELHI
M. No.02/13
Unique ID No.02402C0113842013
Sh. Subash Chander Sharma ......Applicant
Versus
The State ........ Respondent.
08.05.2014 :O R D E R:
1. This is an application u/s 340 Cr. P.C moved on behalf of accused/applicant interalia making a prayer for taking cognizance of offence u/s 194/465/470/471 R/w section 34 IPC against the then SDM, Shahdara Sh. B. P Singh and the then SI Partap Singh, Incharge Police Post, Yamuna Vihar, NE, Delhi.
2. The facts necessary for the purpose of disposal of the instant application are that the present applicant was charge sheeted vide FIR No.227/1991 U/s 302 IPC PS Bhajan Pura and charged and tried by then then Ld. Addl. & Sessions Judge, Karkardooma Courts, vide Sessions Case No.184/96, wherein he was convicted u/s 302 IPC and was awarded sentence of imprisonment for life and a fine of Rs.5,000/, in default, RI for one month. Thereafter, applicant preferred an appeal in Hon'ble High Court vide App. No.361/97, wherein Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.1 of pages 11 vide order dated 12.08.2011, passed by Division Bench of Hon'ble High Court of Delhi, he was acquitted of all the charges and impugned judgment/order on sentence was set aside.
3. It has been stated in the application that it is a settled law that when a man makes an statement in the Court on oath, he is bound to state the truth and if he does not, he makes himself liable for prosecution for perjury. It is claimed that the contemnors i.e SDM B. P Singh and Sub Inspector Partap Singh entered into witness box in SC No. 184/1996 as PW7 and PW13 respectively, took oath to state the truth but gave false evidence, intending thereby to cause or knowing it to be likely that they would thereby cause the accused to be convicted of an offence attracting capital punishment u/s 302 IPC. Hence, they committed an offence u/s 194 IPC. The accused on their false evidence, was convicted and sentenced for life imprisonment and a fine of Rs.5000/ attracting thereby further sentence of RI for one month in case of default. The falsehood of their evidence stood proved from their acquittal order dated 12.08.2011 passed by Division Bench of Hon'ble High Court of Delhi in Appeal no.361/1997. PW7 SDM B.P Singh in his testimony before the court stated that in the forenoon on 19.05.91 SI Pratap Singh approached him for recording the statement of burnt lady patient Rita lying in the burn ward of LNJP hospital, Delhi and he accordingly reached in the said hospital at about 12.0012.30 noon and on the identification of IO (PW13) he recorded the statement of Smt. Rita within 1520 minutes after getting fitness from the doctor. The statement of Smt. Rita was dictated by the said SDM to SI Pratap Singh who recorded it and left hand thumb impression of the patient was taken on the statement. Whereas PW13 SI Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.2 of pages 11 Pratap Singh, IO in this case, in his testimony before the court stated that PW 2 Suraj Prakash, father of burnt patient Smt. Rita telephonically requested him on the evening of 19.05.91 for recording another statement of the victim before the SDM. It appears in his statement that the said telephone call was received by his munshi and handed over to him. In his statement he further stated that he contacted SDM at 8.30 p.m. On 19.05.91 after getting his address from the record available in the PS and thereafter both of them proceeded for LNJP hospital to record the statement of Smt. Rita. It appeared in his statement that they met Lady Dr. Chander Lekha in between 10.15 p.m to 10.20 p.m on 19.05.1991 and on identification by the Lady Dr. Chander Lekha, the statement of Smt. Rita was recorded. PW13 stated in his testimony that the stamp pad was already with him for taking the thumb impression of the burnt patient and he further stated in his testimony that he returned to PP Yamuna Vihar at about 12.00 mid night on 19.05.91. Hence, it is crystal clear that Smt. Rita neither deposed before the SDM nor the statement was ever dictated by the SDM B. P Singh, PW7 SI Pratap Singh, PW13. Hence, the entire episode proves that neither the PWs i.e PW7 and PW13 ever visited the hospital nor the statement of Smt. Rita was ever recorded and the alleged statement of Smt. Rita which is Ex.PW7/A is a forged document prepared without ever visiting the hospital or ever meeting with the patient with common intention by the said PW7 & PW13 and used as genuine in the judicial proceedings intending thereby to cause ulawful injury to the accused persons rendering them thereby liable for action u/s 194/465/470/471 IPC. Thus, it has been prayed that an Inquiry into the offence so committed may be made and after Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.3 of pages 11 recording its findings, a complaint against the contemnors namely Sh. B. P Singh, SDM and SI Pratap Singh for offence u/s 194/465/470/471 r/w 34 IPC may preferred in accordance with law.
4. The copy of application is supplied to Ld. Addl. PP for the State, who made his submissions in details. I have also heard Ld. Counsel for applicant and also perused the written submissions filed on behalf of applicant.
5. Section 340 of Code of Criminal Procedure (under which the instant application has been filed) reads as under:
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 interest of Justice that an inquiry should be made into any offence referred to in clause (b) of subsection (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 jurisdiction;
(d). take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is nonbailable and the Court thinks it necessary so to do, send Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.4 of pages 11 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 subsection (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 subsection (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.
Sections 195 and 340 are closely connected and they should be read together. S.195 forbids the cognizance by any Court of the offences against public justice mentioned in cl. (b) of S.195(1) except upon a regular complaint by the Court concerned and S. 340 lays down the procedure as to how the bar imposed by S. 195 is to be removed and such complaint is to be made.
The proceedings under Section 340 Cr.P.C is a preliminary enquiry to find out whether a prosecution proceedings in relation to the offences to which the bar under Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.5 of pages 11 Section 195(1)(b) of the Cr.P.C is attracted, has to be initiated by the filing of a complaint.
An application is merely the means of drawing the attention of the Court. It might be anonymous if sufficiently precise and definite. It is clearly the duty of the Court to take suitable action in proper cases whenever the matter comes to its notice.
In K. Karunakaran Vs. T.V. Eachara Warrier reported as AIR 1978 SC 290, it has been held that "at an inquiry under S. 340 (1), irrespective of the result of the main case, the only question is whether a prima facie case is made out and if the party does not choose to place all its materials before the Court at that stage, it will not be estopped from doing so later in case prosecution is sanctioned".
In AIR 1946 All 156 titled as Liaqat Hussain Vs. Vinay Prakash it was held that "whether it proceeds suo motu or on an application by any one, before a prosecution is launched the Court must be of the clear opinion that it is necessary in the interests of justice. That is the essential condition. The motive of the party is no consideration".
In M.S. Sheriff Vs. State of Madra reported as AIR 1954 SC 397, it has been held that "the only relevant consideration is whether it is expedient in the interests of justice that a complaint should be made. That involves a careful balancing of many factors".
In AIR 1945 A 397 it has been held that "the Court has to be satisfied that (i) it appears that an offence under S.195(1)
(b) has been committed and (ii) it is expedient in the interests of justice that an enquiry should be made".
In AIR 1968 Ori. 144 titled as Parmananda Mohapatra Vs. The State it was held that "interests of justice is one Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.6 of pages 11 matter and expediency in the interest of justice is another matter. Consequently, the Court must be satisfied that not merely bare interest of justice is served but also that it is expedient in the interests of justice to prosecute and clearly record that jurisdictional finding before taking steps for prosecution".
In AIR 1971 SC 1367 titled as Chajoo Ram Vs. Radhey Shyam it was held as under: "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 affidavit 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. ......... Lastly, Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.7 of pages 11 there is also the question of long lapse of time of more than ten years since the filing of the affidavit which is the subject matter of the charge. This factor is also not wholly irrelevant for considering the question of expediency of initiating prosecution for the alleged perjury. ....."
6. It has been claimed on behalf of the applicant that the judgment of Hon'ble High Court of Delhi dated 12.08.2011 acquitting the applicant of the charge U/s 302 IPC fully support the support taken by the applicant in the instant application that in their respective testimonies i.e. Pw7 & PW13 the contemnors had made the false statement before the Court and therefore, they were not found reliable by the Hon'ble High Court on account of severe contradictions appearing therein proving the falsehood of the testimony of both the witnesses. Further the authenticity of dying declaration of deceased Ex.PW7/A has been rejected by the Hon'ble High Court stating that the same was not in the natural language of the deceased but that of a police officer. Further it was also observed in the judgment dated 12.08.2011 that the thump impression of the deceased Rita was barely visible also of her left hand, whereas, legally it should have been that of her right hand. It is added that what is not found to be true in judicial scrutiny in false and making a false statement of oath renders the deponent liable for action as per law. Because of intentional and deliberate acts on the part of the contemnors, the applicant had to suffer for around twenty years i.e. he lost his job, suffered mental agony, social degradation, lost peaceful file and remained behind the bar for a very long time.
Per contra, according to Ld. Addl. PP for the State the Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.8 of pages 11 instant application as preferred is devoid of substance as it has not satisfied the ingredients of Sec.340 Cr.P.C. The ground mentioned in the application are not sufficient to initiate the proceeding U/s 340 Cr.P.C. The Hon'ble Appellate Court had acquitted the applicant of the charges only by giving benefit of doubt, on the basis of contradictions observed in the testimonies of the prosecution witnesses. Nowhere in the entire proceeding it has come on record that the alleged contemnors i.e. PW7 & PW13 were having any grudge of personal enmity with the applicant or they had deliberately and willfully made such statement as to get the applicant punished falsely. After completion of trial and evaluating the evidence brought on record by the prosecution, Ld. Trial Court by holding the evidence sufficient to held the applicant guilty and convicted him, whereas on the other hand Hon'ble Appellant Court in its evaluation of evidence did not find the evidence sufficient to upheld the order of conviction and accordingly acquitted the applicant by giving him benefit of doubt. It is a case of difference of opinion by two different court and it can not be said that the alleged contemnors had deliberately and willfully given their statements falsely against the applicant.
7. Having heard the rival submissions of both the sides and considering the above said settled propositions of law, I am of the considered opinion that there is a substance in the claim of Ld. Addl. PP for the State and the application as filed is liable to fail as the ingredients of Sec.340 Cr.P.C has not been fulfilled in the instant case. Certainly this is a case of difference of opinion by two different Courts i.e. Ld. Trial Court while finding the evidence brought on record sufficient to hold the applicant guilty and convicted him, on the other hand Hon'ble Appellant Court in its evaluation of evidence arrived at Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.9 of pages 11 the different conclusion and did not find the evidence sufficient to upheld the order of conviction on account of the contradictions recorded in the statements of witnesses and acquitted the applicant by giving him benefit of doubt. The ground mentioned in the application are not sufficient to initiate the proceeding U/s 340 Cr.P.C. Further nowhere in the entire proceeding it has come on record that the alleged contemnors i.e. PW7 & PW13 were having any grudge of personal enmity with the applicant or they had deliberately and willfully made false statement as to get the applicant punished.
8. In view of the aforesaid as well the aforementioned settled prepositions of law, I am of the considered view that this is not a fit case to launch prosecution under Section 340 Cr.P.C against the alleged contemnors. Resultantly, the instant application is liable to fail and accordingly, same is hereby dismissed
9. The instant application filed alongwith Trial Court Record be consigned to Record Room after completion of necessary formalities.
Announced in the open (RAKESH KUMAR)
th
Court on 08 May, 2014 Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.10 of pages 11
M. No.02/2013
Subhash Chand Sharma Vs. State
08.05.2014
Present: Applicant in person.
Sh. Dharam Chand, Ld. Addl. PP for the State. Clarifications sought.
Vide a separate order, application of the applicant is dismissed.
The instant application filed alongwith Trial Court Record be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ02(NE)/KKD/08.05.14 Subash Chander Sharma Vs. The State (M. No.02/2013) Page No.11 of pages 11