Karnataka High Court
Gururaj S/O Mallikarjun Vijapur vs Rashmi D/O Rautappa Salotgi on 17 July, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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NC: 2023:KHC-K:5449
CRL.A No. 200058 of 2023
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL APPEAL NO.200058 OF 2023
BETWEEN:
GURURAJ S/O MALLIKARJUN VIJAPUR
AGE. 39 YEARS, OCC. GOVT. SERVANT,
R/O. KATTAGI ADDA MANE, ALNAVAR,
TQ. ALNAVAR,
DIST. DHARWAD-581103.
...APPELLANT
(BY SRI. ADITYA SONDHI, ADVOCATE FOR
SRI. BASAVARAJ M. POLICE PATIL, ADVOCATE)
AND:
Digitally signed
by LUCYGRACE RASHMI D/O RAUTAPPA SALOTGI
Location: HIGH
COURT OF AGE. 32 YEARS, OCC. HOUSEHOLD,
KARNATAKA
R/O. PLOT NO.40, JEWARGI ROAD,
CHAMUNDESHWAR COLONY,
KALABURAGI-585102.
...RESPONDENT
(BY SRI. S. N. PADSHETTY, ADVOCATE)
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NC: 2023:KHC-K:5449
CRL.A No. 200058 of 2023
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 341
OF CR.P.C. PRAYING TO, I) SET ASIDE THE IMPUGNED ORDER
DATED 02.11.2022 (ANNEXURE H) WHEREIN APPLICATION
DATED 10.08.2022 (ANNEXURE E) UNDER SECTION 340
CR.P.C. READ WITH SECTIONS 383, 385, 417, 503, 211, 191,
192, 196, 199, 203, 499 AND 500 IPC HAS BEEN DISMISSED
BY THE LD. COURT OF PRINCIPAL JUDGE, FAMILY COURT,
KALABURAGI IN CRL.MISC.NO.6/2020 TITLED AS 'RASHMI VS
GURURAJ' WITHOUT APPRECIATING THE TRUE FACTS AND
CORRECT LAW. II) IT IS FURTHER PAYED THAT THE
APPLICATION DATED 10.08.2022 (ANNEXURE B) UNDER
SECTION 340 CR.P.C. FILED BY THE APPELLANT MAY KINDLY
BE ALLOWED AND ETC.,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal under Section 341 of Cr.P.C. is filed by the appellant praying to set-aside the impugned order dated 02.11.2022 passed by the Prl. JudGe, Family Court, Kalaburagi in Crl.Misc.No.6/2020.
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02. The respondent has initiated the proceedings under Section 125 of Cr.P.C. claiming maintenance from the petitioner. In the said proceedings, after the respondent was subjected to cross-examination, the petitioner filed an application under Section 340 of Cr.P.C. for taking action against the respondent for tendering false evidence. The respondent filed objections to the said application.
03. The learned Family Court, after perusing the material, dismissed the application stating that, the petitioner has to approach the proper Forum and also if the respondent has diverted from what she has stated in her cross- examination, can be considered, only at the time of disposal of the case. Taking exception of the same, this petition is filed.
04. Sri Aditya Sondhi, learned Senior Counsel for the petitioner's counsel submits that, there is no requirement for appreciation of the evidence, as to whether the respondent has given false evidence and the Court can initiate the proceeding under Section 340 of Cr.P.C. Hence, he submits that, the Family Court, before which the false evidence was tendered, had the jurisdiction to conduct a preliminary enquiry and record a finding to that effect and thereafter make complaint in writing to the learned Magistrate having jurisdiction. In support, he placed reliance on the decision of the Hon'ble Supreme Court, in the case of Rajnesh vs. Neha and another, reported in (2021) 2 SCC 324.
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05. The learned counsel for the respondent submits that, conducting of an preliminary enquiry under Section 340 of Cr.P.C. is not mandatory. If the Court on the available material on record comes to a conclusion that, there is no prima-facie case made out, can dismiss the application. Hence, the impugned order passed by the Family Court, is in accordance with law and the same, does not warrant any interference. In support, he places reliance on the judgment of the Hon'ble Supreme Court in the case of Pritish v. State of Maharashtra, reported in (2002) 1 SCC 253.
06. Considered the submission made by the learned counsel for the parties.
07. The petitioner filed an application under Section 340 of Cr.P.C. stating that, the respondent has tendered false evidence in the proceeding under Section 125 of Cr.P.C. and the same constitutes an offence punishable under Section 195 of IPC and other penal provisions.
08. Section 340 of Cr.P.C. deals with the procedure in cases mentioned in Section 195 of Cr.PC. Section 195 of Cr.PC deals with the prosecution for contempt of lawful authority of public servant, for offences against public justice, and for offences relating to the documents given in evidence.
09. Section 195(1) of Cr.P.C. specifies that, no Court shall take cognizance except on the complaint in writing of that Court or by such officer of the Court as the Court may authorize in writing in this behalf or of some other Court to which the Court is subordinate.
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10. Section 340 of Cr.P.C. specifies that, if any enquiry should be made into any offence, referred to in clause-b of sub- section (1) of Section 195 of Cr.P.C., which appears to have been committed in relation to proceeding in that Court or the case may be in respect of a document produced or given in evidence, in a proceeding in that Court, such Court may after preliminary enquiry if any it seems necessary record - a) finding to that effect, b) make a complaint in writing, c) send it to the learned First Class Magistrate, having jurisdiction.
11. Conjoint reading of Section 195 of Cr.P.C. and 340 Cr.P.C. indicate that, if any offence is committed under Sections 193 to 196 of Cr.P.C. both inclusive, the Court may on a complaint by writing, by the Court in which an offence under Clause-b of Sub-Section 1 of Section 195 of Cr.P.C. is committed, may after conducing preliminary enquiry record a finding to that effect and thereafter, make a compliant thereof in writing.
12. The Hon'ble Supreme Court in the case of State of Punjab v. Jasbir Singh, reported in 2022 SCC OnLine SC 1240, at para 7 held as follows:
"7. The reference order also simultaneously noted the observations in the Constitution Bench of this Court in Iqbal Singh Marwah v. Meenakshi Marwah3 which was post the judgment in Pritish's case (supra) but prior to the judgment in Sharad Pawar's case (supra). In this behalf the extracted portion in 23 of the judgment reads as under:-6-
NC: 2023:KHC-K:5449 CRL.A No. 200058 of 2023 "In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a complaint regarding 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 of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint.
Emphasis supplied""
13. The Hon'ble apex court in the case of State of Punjab v. Jasbir Singh, 2022 SCC OnLine SC 1240 after considering the observations made in the cases of [Pritish v. State of Maharashtra, (2002) 1 SCC 253 wherein it is observed that the Court is not obliged to make a preliminary inquiry on a complaint] and in [Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, it is observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 CrPC] and by referring to the constitution bench in the case of Iqbal Singh Marwah v. Meenakshi -7- NC: 2023:KHC-K:5449 CRL.A No. 200058 of 2023 Marwah, (2005) 4 SCC 370, has held that the Constitution Bench's view would naturally prevail which makes the legal position quite abundantly clear that the Court may hold a preliminary enquiry and record a finding to the effect that if it is expedient in the interests of justice and that enquiry should be made into any of the offences referred to in Section 195(i)(b).
14. In the instant case, conducting a preliminary enquiry before proceeding an application under section 340 is not the issue, however, the only issue that arises is dismissal of the said application for want of jurisdiction. The Hon'ble Supreme Court in the case of Rajnesh (supra) at para-72.8 has held that if pleadings made in the application for maintenance and replies filed should be responsible pleadings; if false statements and misrepresentations are made, the Court may consider initiation of proceeding under Section 340 of Cr.PC, and for Contempt of Court.
15. The language contained in Section 340 of Cr.PC does not specify that, the proceeding is to be initiated only after the trial is concluded and in the absence of the same, the proceeding can be initiated at any stage of the proceeding.
16. Hence, the Court, before which the false evidence is alleged to have been tendered, may conduct a preliminary enquiry, and record a finding to that effect, and make a complaint thereof in writing. However, in the instant case, the Family Court contrary to the aforesaid provision has rejected the application stating that, it has no jurisdiction, and also the application can be considered only after disposal of the case.
-8-NC: 2023:KHC-K:5449 CRL.A No. 200058 of 2023 Hence, the impugned order passed by the Family Court is contrary to the aforesaid provision, and the same is not sustainable in law. Hence, I pass the following;
ORDER I. The Criminal Appeal is allowed.
II. The impugned order dated 02.11.2022, in Crl.Misc.6/2020, passed by the learned Prl. Judge, Family Court at Kalabuaragi, on application under Section 340 of Cr.P.C. filed by the petitioner, is hereby set-aside.
III. The matter is remitted to the learned Prl. Judge, Family Court, at Kalaburagi to proceed in the light of Section 340 of Cr.P.C. and the observations made herein above and pass appropriate order.
Sd/-
JUDGE KJJ List No.: 1 Sl No.: 50