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Delhi District Court

Deep Chand vs The State on 28 November, 2022

    IN THE COURT OF MS. SHEFALI SHARMA,
ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT,
            ROHINI COURTS, DELHI

In the matter of:

CA No. 147/2018

Deep Chand
S/o Sh. Khushi Ram
R/o VPO Khera Kalan,
Delhi - 110082.
                                              ....Appellant
                       Versus

1.      The State.
2.      Nihal Singh
        S/o Sh. Ganga Bishan
        R/o VPO Khera Kalan,
        Delhi - 110082.

                                                 ...Respondent

Date of Institution               : 27.07.2018
Date of Arguments                 : 11.11.2022
Date of Order                     : 28.11.2022

                            JUDGMENT

1. Present appeal is under Section 341 Cr.P.C. against the order dated 25.06.2018 (hereinafter referred to as impugned order) passed by Ld. MM, North whereby the application of the appellant under Section 182 Cr.P.C. has been dismissed.

2. Brief facts of the case are that respondent Nihal Singh instituted a complaint the appellant and other persons for the offence under Section 323/342/354/392/427/452/504/509/ 166/201 IPC for the incident dated 28.07.1981. It was alleged CA No. 147/2018 Deep Chand Vs. State Page 1 of 7 that the appellant caused unlawful demolition or uprooting of a fodder cutting machine, hand pump and chabutra situated in front of respondent Nihal Singh through his unlawful complicity with staff of MCD. It was also alleged that the appellant outraged the modesty of Smt.Ratani.

3. An application had been filed by the appellant under Section 182 Cr.P.C. read with Section 194 Cr.P.C. against the respondent to have filed a false complaint bearing no. CC No. 157A/1/07. respondent Nihal Singh instituted a complaint dated 27.08.1981 against the appellant and other persons for the offence under Section 323/342/354/392/427/452/504/509/166/ 201 IPC for the incident dated 28.07.1981. It was alleged that the appellant caused unlawful demolition or uprooting of a fodder cutting machine, hand pump and chabutra situated in front of respondent Nihal Singh through his unlawful complicity with staff of MCD. It was also alleged that the appellant outraged the modesty of Smt.Ratani. Appellant was summoned as the accused with other persons. Stand of the appellant remained that he was posted as driver/constable with 4th Battalion DAP on 28.07.1981 and was not present at the spot at the time of demolition by the MCD officials. He was falsely implicated by the respondent as he made the complaint of encroachment. He was eventually discharged by ld. MM, however, order was challenged and was set aside. He faced trial for 33 years. He was acquitted on 22.12.2014. He faced financial and social hardship and became source of ridicule. He had to take voluntary retirement due to pending court case.

4. Heard and perused the record.

5. A perusal of the record shows that respondent Nihal Singh stated on oath in his pre summoning evidence on 21.11.1981 that appellant along with SHO Kingswary Camp, Prahalad Engineer and B.S. Solanki took Ratani inside the home and applicant snatched her gold chain and locked her inside the room. Smt. Ratani in pre summoning evidence stated on oath that appellant along with P.K. Srivastava, B.S. Solanki and Prahlad Singh pushed her inside the room of her house. Appellant Deep Chand snatched her gold chain from her neck, pushed her and ran away after bolting the door from outside. Both the witnesses maintained the same stand in the trial stage in pre charge evidence.

6. It is the statement of Nihal Singh and Ratani Devi that was alleged to be a false statement before the public officer. At this stage, reliance is placed on the landmark judgment of Iqbal Singh Marwah & Anr vs Meenakshi Marwah & Anr., Appeal (crl.) 402 of 2005 decided on 11.03.2005 by Hon'ble Supreme Court, wherein it is held that:

"18. 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 CA No. 147/2018 Deep Chand Vs. State Page 3 of 7 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."

In the case of R.S. Sujatha Vs. State of Karnataka & Ors. (2011) 5 SCC 689, wherein it is held that:

"In view of the above, law on the issue can be summarised that in order to initiate prosecution for perjury, the court must prima facie reach a conclusion after holding preliminary inquiry that there has been a deliberate and conscious effort to misguide the court and interfere in the administration of justice. More so, it has to be seen whether such a prosecution is necessary in the interest of justice."

In the case of Mr. Vishal Kapoor Vs. Mrs. Sonal Kapoor decided on 2nd September, 2014 in LPA No. 322/2014, the Hon'ble High Court has held that:

(i) that an application under Section 340 of the Cr.PC ought to be normally considered at the time of final decision of the case only and not at the interim stage;

(ii) the very genesis of this provision is to prevent complaints being filed of offences having being committed in relation to the court proceedings; it was felt that if such complaints are permitted to be filed, the same may be used to force the other party into giving up its claim/defence or to dissuade witnesses from appearing before the courts under threat of criminal prosecution;

(iii) proceedings under Section 340 Cr.PC should not be resorted to when the criminal case is calculated to hamper fair trial of issue in the civil court before which the matter CA No. 147/2018 Deep Chand Vs. State Page 4 of 7 would probably go on for longer;

(iv) a prosecution for perjury should not be ordered by the court before the close of the proceedings in the case in which false evidence is given. It is highly wrong for a court to take action under the said provision against a witness or a party for giving false evidence when trial is underway;

(v) the existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action under Section 340 of the Cr.PC is recommended;

(vi) before setting the criminal law into motion, the court should exercise great care and caution and it must be satisfied that there is reasonable foundation for the charge in respect of which prosecution is directed;

(vii) in criminal prosecution normally, a direction for filing of a complaint is not made during the pendency of the proceeding before the Court and this is done at the stage when the proceeding is concluded and the final judgment is rendered;

(viii) that re-course under Section 340 of the CrPC is to be on only if the interest of justice requires and not in every case;

(ix) expediency would 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; and

(x) where the forged document or forgery may cause a very serious or substantial injury to a person but where such document is just a piece of evidence, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice is minimal, the Court may not consider it expedient in the interest of justice to make a complaint."

7. The existence of mens rea or criminal intention behind act complained of will have to be looked into and considered before any action under Section 340 of the Cr.PC is CA No. 147/2018 Deep Chand Vs. State Page 5 of 7 recommended. Re-course under Section 340 of the CrPC is to be on only if the interest of justice requires and not in every case

8. In the present case, the appellant had been acquitted vide order dated 22.12.2014. The findings given was that PW Ratani Devi could not produce any independent witness to prove her case against the appellant and could not produce bills and other documents regarding the alleged gold chain. It was opined that her testimony was doubtful having certain improvisation and in the absence of any other independent witness, the benefit of doubt had been granted to the appellant as the prosecution had failed to prove its case beyond reasonable doubt. There is no categorical finding of the ld. Trial court that the prosecution was maliciously done and that is why the appellant had been acquitted. Admittedly, the respondent Nihal Singh was a hear say witness and was not even present at the time of alleged incident and it is hard to believe that such a person who was as such a hear say witness could be set to have the intention of maliciously prosecuting or given a false statement before the court. The case seems to have been decided due to lack of corroboration and cogent evidence but that by itself does not implies that whatever evidence was furnished was a false and malafide one. Moreover, the main witness was Ratani Devi and if it is alleged that her statement was false or such an incident never happened then even she should have been made a party in the present application under Section 182/195 Cr.P.C. or the in the present appeal technically which the appellant had failed to do so.

9. Considering the aforesaid discussion, I see no CA No. 147/2018 Deep Chand Vs. State Page 6 of 7 illegality in the impugned order passed by Ld. Magistrate dated 25.06.2010 and the same is upheld, accordingly. The appeal being devoid of any merits is dismissed.

10. Appeal file be consigned to record room.

11. TCR, if any be sent back to the concerned court with copy of this judgment.

Pronounced in open (SHEFALI SHARMA) Court on 28.11.2022 ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT ROHINI COURT: DELHI.