Allahabad High Court
Atul Sharma vs State Of U.P. Thru. Prin. ... on 20 January, 2017
Author: Ajai Lamba
Bench: Ajai Lamba
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?AFR Court No. - 9 Case :- MISC. BENCH No. - 19317 of 2016 Petitioner :- Atul Sharma Respondent :- State Of U.P. Thru. Prin. Secy.(Home)And Others Counsel for Petitioner :- Madhumita Bose,Sunil Kumar Singh Counsel for Respondent :- Govt. Advocate,Dr Lalta Prasad Misra,Jai Prakash Yadav,Mr. Sidharth Dhaon,Nalini Jain Hon'ble Ajai Lamba,J.
Hon'ble Dr. Vijay Laxmi,J.
(C.M. Application No. 6908 of 2017)
1. The application has been filed under Section 340 of the Criminal Procedure Code, 1973 (for short Cr.P.C.) read with Section 195(1)(b)(i) Cr.P.C. by applicant\respondent no.4.
2. The application has been filed on the ground that in para 21 of the writ petition, the petitioner has made a false statement to the effect that the petitioner or his company has never taken loan from a private individual. It has been pleaded by Dr. L.P. Mishra learned counsel for the applicant\respondent no.4 that the petitioner gave a wrong statement to the income tax authorities on 07.12.2016 contained in Annexure-11 filed with affidavit dated 17.12.2016 sworn by Principal Director (Investigation) income tax. The petitioner admitted to having taken two unsecured loans from private persons. Therefore, the petitioner has deliberately given a false statement in the writ petition and filed false affidavit. The petitioner has exposed himself to criminal prosecution.
3. We have considered the prayer made by applicant/respondent no.4, as noted above.
4. The spirit of Section 340 Cr.P.C. is - 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 proceedings 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)??..
(b)??..
(c)???
(d)???
(e)???.
5. The highlighted portion makes it evident that proceedings are required to be initiated under Section 340 Cr.P.C. if any Court is of the opinion that it is expedient in the interest of justice.
6. The penal provisions mentioned in Section 195(1)(b)(i) Cr.P.C. relate to giving or fabricating false evidence, however, for a purpose to be achieved by the accused viz to procure conviction etc.
7. It is in context of the facts of the case, the law and the spirit of the law that the issue is required to be considered.
8. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No.0679 of 2016, under Sections 420, 467, 471 Indian Penal Code and Section 138 Negotiable Instruments Act, 1881, Police Station Gomti Nagar, District Lucknow.
9. Gist of the allegation made by applicant respondent no.4 in the impugned First Information Report is that the petitioner took loan in the sum of Rs. 1,18,00,000, however, did not return the same, thereby committing offences as alleged.
10. Per contra the petitioner has set up a case that it is the petitioner who gave loan to respondent no.4 through bank transfers. Annexure-2 has been filed in evidence of the said fact. Certain documents have also been produced along with the supplementary affidavit to demonstrate that the petitioner gave loan to respondent no.4. It is the case of the petitioner that respondent no.4 never gave loan to the petitioner.
11. From the above it is evident that issue before this court is not whether the petitioner ever took loan from a private individual or not, rather issue is as to whether the petitioner committed the offence, as alleged in the impugned First Information Report. In such circumstances this court is of the considered opinion that it is not expedient or in the interest of justice that provisions of Section 340 Cr.P.C. read with Section 195(1)(b)(i) Cr.P.C. be invoked.
12. It is not in every case of perjury that the court would mechanically take cognizance, prosecute and punish the perjurer in summary proceedings. Prosecution should be ordered when it is considered expedient in the interest of justice to punish the delinquent, and not merely because there is some inaccuracy in the statement, which might be immaterial and not related to the core of the issue.
13. In the considered opinion of the court prosecution for perjury should be sanctioned by the courts only in those cases where perjury is deliberate and conscious to achieve some questionable purpose. Every incorrect or false statement does not make it incumbent on the court to order the prosecution. If the false evidence is clearly immaterial to the decision of the case, a complaint should not ordinarily be made. Consequently, prosecution should be discouraged where false evidence is not material, and does not affect the result of the case\proceeding.
14. This court is of the considered view that in each and every case where allegedly a false statement is given, the court is not required to invoke the provisions of Section 340 Cr.P.C. read with Section 195(1)(b)(i) Cr.P.C. The alleged false statement\false evidence is required to be seen in context of the issue to be considered by the court. Since it is the court that is required to initiate proceedings therefore, it is the satisfaction of the court that matters, and not the satisfaction of the applicant. It is in this context that the provisions of Section 340 Cr.P.C. are clear in its content, as noticed above vis when the court is of the opinion that it is expedient in the interest of the justice????..
15. In the opinion of the court in peculiar facts and circumstances of the case noted above, the offending statement given by the petitioner on the basis of which the application has been filed, does not touch the core of the issue and therefore, it is not required that proceedings be initiated under Section 340 Cr.P.C. read with Section 195(1)(b)(i) Cr.P.C.
16. The application is accordingly dismissed.
Order Date :- 20.1.2017\prateek