Calcutta High Court (Appellete Side)
Subham Roy Choudhury vs Sreejoyee Chakraborty on 12 April, 2021
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
Form J(2) IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present :
The Hon'ble Justice Bibek Chaudhuri
CRR 2303 of 2019
Subham Roy Choudhury
Vs
Sreejoyee Chakraborty
For the Petitioner : Ajoy Roy Chowdhury
Heard on : 12.04.2021
Judgment On : 12.04.2021
Bibek Chaudhuri, J.
This is an application under Section 482 of the Code of Criminal Procedure filed by one Subham Roy Choudhury against his wife Sreejoyee Chakraborty praying for quashing of the proceedings being Misc. Case No.515 of 2016 pending before the learned Judicial Magistrate, 2nd Court at Barrackpore and the order dated 1 st August, 2 2018 passed by the learned Court below rejecting the application under Section 340 of the Code of Criminal Procedure, 1973.
It is not disputed by the petitioner that the opposite party is his legally married wife and the said marriage was solemnized on 22 nd February, 2016. Within five days of marriage the opposite party went back to her paternal house for some medical test. It subsequently transpired that the respondent was suffering from relapsed ITP Post Spleknectomy (advance stage of cancer) for nine years prior to marriage.
Upon discovery of the said fact, the petitioner filed a suit for nullity of marriage being MAT Suit No.42 of 2016 presently pending before the learned Additional District Judge, 5 th Court at Alipore, South 24 Parganas.
The respondent in turn filed an application for maintenance before the learned Additional District Judge at South 24 Parganas in Matrimonial Suit No.42 of 2016 in which she made false and fabricated statement and allegations of criminal nature by swearing affidavit against the petitioner and his old parents which compelled the petitioner to file an application under Section 340 of the Code of Criminal Procedure for prosecuting the respondent under Section 193 of the Indian Penal Code for knowingly making false statement in 3 Court proceeding. The said application under Section 340 of the Code of Criminal Procedure was rejected.
Being aggrieved by and dissatisfied with the said judgment and order of rejection of the aforesaid application under Section 340 of the Code of Criminal Procedure, the petitioner has filed an appeal being CRA 687 of 2017 before this Court.
The opposite party also filed an application under Section 498A /406/34 of the Indian Penal Code against the petitioner and his parents after about four months of her departure from her matrimonial home. The petitioner filed an application for self and on behalf of his parents praying for their discharge under Section 239 of the Code of Criminal Procedure the said application was also rejected by the trial Court which prompted the petitioner to file criminal revisions being CRR 321 of 2019 and CRR 341 of 2016.
The respondent also filed an application under Section 125 of the Code of Criminal Procedure before the learned Judicial Magistrate, 2nd Court at Barrackpore with false, fabricated and contradictory statement and allegations against the petitioner and her parents which itself is chargeable for making false statement on affidavit before the Court and for false evidence under Section 191 of the Indian Penal Code and punishable under Section 193 of Indian Penal Code. The petitioner filed an application under Section 340 of the 4 Code of Criminal Procedure praying for drawing up prosecution under Section 193 of the Indian Penal Code against the respondent. The said application was however, rejected by the learned trial Court vide an order dated 1st August, 2018. Against the said order the petitioner filed an appeal being CRA No. 452 of 2016 under Section 341 of the Code of Criminal Procedure before this Court and the said appeal is still pending.
It is submitted by the petitioner that unless the proceeding being Misc. Case No. 515 of 2016 under Section 125 of the Code of Criminal Procedure is not rejected for committing perjury under Section 340 of the Code of Criminal Procedure and another proceeding in Misc. Case No. 515 of 2016 be quashed, the petitioner will suffer irreparable loss and injury. It is also submitted by the petitioner that the entire proceeding in Misc. Case No. 515 of 2016 being filed on assertion of false and fabricated statement is abusive of the process of Court and the said proceeding should be quashed to secure the ends of justice.
Learned advocate for the petitioner first draws my attention to Section 195 of the Code of Criminal Procedure. Section 195 deals with the prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. The object of Section 195(1) 5
(b) is that it is the Court before which an offence is alleged to have been committed in respect of a document produced in a proceeding before it which should file or caused to be filed a complaint and not a private party. Commission of perjury in respect of a document produced or given in evidence in a proceeding in any Court committed prior to filing of that application before Court creates a bar under Section 195 (1)(b)(ii) of the Code of Criminal Procedure that no Court shall take cognizance of any such offence on the complaint in writing of the Court concerned was not attracted to this case. Criminal complaint under Section 193 for false statement made by the respondent is cognizable by the Court under Section 195 only when the allegation of false and fabricated statement and perjury created by the respondent is proved on the basis of evidence on record during trial of the case.
Section 340 of the Code of Criminal Procedure lays down the provisions as to offences affecting the administration of justice. Section 340 runs thus:
"Section 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 enquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to 6 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 having jurisdiction;
(d) 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
(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 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,- 7
(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 (or by such officer of the Court as the Court may authorize in writing in this behalf).
(4) In this section, "Court" has the same meaning as in Section 195."
Section 341 is the provision of appeal which reads as hereunder:
"341. Appeal.- (1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as, the case may be, making of the complaint which such former Court might have made under Section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.8
(2) An order under this section, and subject to any such order, an order under Section 340, shall be final and shall not be subject to revision.
Plain reading of Section 341(1) suggests that if a Court has refused to make a complaint on the basis of an allegation filed by any person in a proceeding under sub-section (1) or sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section 4 of Section 195.
Careful reading of Section 193, 195 and Section 340 and 341 suggest that in relation to offences affecting the administration of justice, it is the Court which happens to be the complainant and since an offence under Section 193 is triable by the Court of the learned Magistrate, the trial Court shall send the complaint to the learned Magistrate having jurisdiction to try the case. The learned Magistrate shall try the case by serving notice to the parties. The order passed by the Court of trial is appealable to the next higher Court.
Therefore, an order passed under Section 340 of the Code of Criminal Procedure is appealable before the learned Sessions Judge under Section 341 of the Code of Criminal Procedure. The learned advocate for the petitioner refers to a decision of the Hon'ble 9 Supreme Court in the case of Perumal -vs- Janaki, reported in (2014) 1 S.C.R 591.
Learned advocate for the petitioner has referred to paragraphs 24, 25 and 26 of the above mentioned report which is quoted below :
"24. It can be seen from the language of Section 195 (4), Cr. P.C. that it creates a legal fiction whereby it is declared that the original Court is subordinate to that court to which appeals ordinarily lie from the judgements or orders of the original court (hereinafter referred to as 'the appellate court'). In our view, such a fiction must be understood in the context of Article 227 of the Constitution of India and Section 10 (1) and 15 (1) of Cr. P.C. Article 227 confers the power of superintendence on a High Court over all courts and tribunals functioning within the territories in relation to which a High Court exercises jurisdiction. Section 10 (1) and 15(1) of Cr. P.C. declare that the Assistant Sessions Judge and Chief Judicial Magistrate are subordinate to the Sessions Judge and other Judicial Magistrates to be subordinate to the Chief Judicial Magistrate subject to the control of the Session Judge. It may be remembered that Section 195(4) deals with the 10 authority of the superior courts in the context of taking cognizance of various offences mentioned in Section 195 (1). Such offences are relatable to civil, criminal and revenue courts etc. Each one of the streams of these courts may have their administrative hierarchy depending upon under the law by which such courts are brought into existence. It is also well known that certain courts have appellate jurisdiction while certain courts only have original jurisdiction. Appellate jurisdiction is the creature of statute and depending upon the scheme of a particular statute, the forum of appeal varies. Generally, the appellate for a are created on the basis of either subject matter of dispute or economic implications or nature of crime etc. "25. Therefore, all that sub-section (4) of Section 195 says is that irrespective of the fact whether a particular court is subordinate to another court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195(1), every appellate Court competent to entertain the appeals either from decrees or sentence passed by the original Court is treated to be a Court concurrently competent to exercise the jurisdiction under Section 195 (1). High Courts 11 being constitutional courts invested with the powers of superintendence over all courts within the territory over which the High Court exercises its jurisdiction, in our view, is certainly a Court which can exercise the jurisdiction under Section 195(1). In the absence of any specific constitutional limitation of prescription on the exercise of such powers, the High Courts may exercise such powers either on an application made to it or suo moto whenever the interests of justice demand."
"26. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors- (1) the embargo created by Section 195 restricting the liberty of aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195; (2) such offences pertain to either the contempt of lawful authorities of public servants or offences against public justice."
The observation made by the Hon'ble Supreme Court in paragraph 25 is stressed upon by the learned advocate for the petitioner. Careful reading of paragraph 24 suggests that sub-section 12 4 of Section 195 states that irrespective of the fact whether a particular Court is subordinate to another Court in the hierarchy of judicial administration, for the purpose of exercise of powers under Section 195 (1), every appellate Court competent to entertain the appeals either from decrees or sentence passed by the original Court is treated to be a Court concurrently competent to exercise the jurisdiction under Section 195 (1)(empahsis supplied).
On factual score it is ascertained that the trial of the Misc. case No. 515 of 2016 has not been started yet. Whether the petitioner in a case under Section 125 of the Cr. P. C. has made false and fabricated allegation or not can only be decided upon enquiry at the stage of trial. In the instant case hearing of the case has not been started. On the other hand the trial Court passes an impugned order on 1st August, 2018 without making any enquiry.
In view of such circumstances, while this Court finds that Section 482 has no manner of application in the instant case, the order passed on 1st August, 2018 in Misc. case No. 515 of 2016 under Section 125 of the Code of Criminal Procedure is set aside.
The learned Judicial Magistrate, 2 nd Court, Barrackpore is directed to pass an order on the application filed by the petitioner upon due enquiry along with trial of the case to see as to whether 13 the allegation made by the petitioner is truthful or not. If the allegation is found to be truthful, the petitioner is at liberty to take step in accordance with Section 195 of the Code of Criminal Procedure.
Accordingly, the instant criminal revision is disposed of. Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
( Bibek Chaudhuri, J. )