Rajasthan High Court - Jaipur
Shiv Prasad Paliwal vs State Of Rajasthan on 11 April, 1991
Equivalent citations: 1992CRILJ357
ORDER N.K. Jain, J.
1. This miscellaneous petition is directed against the order of Additional Sessions Judge, Raisinghnagar dated 25-4-86 whereby he upheld the order of Addl. Chief Judicial Magistrate, Sri Ganganagar dated 15-2-1983.
2. Brief facts giving rise to this petition are that the petitioner was posted as a Enforcement Officer and inspected the go-down of one Banwarilal. He found that there was contravention of the condition laid down under the licence issued under Clause 4(2) of the Rajasthan Foodgrains Dealer Licensing Order, 1964. On this he filed a complaint against Banwarilal for the offence Under Section 3/7 of the Essential Commodities Act. A document Ex. 5, described as copy of Godown Register was produced along with the complaint. During the trial it was revealed that Register No. 64 was interpolated as 69 by making '4' as '9'. Thus the accused was acquitted of the charge on 5-2-80 by the concerned Magistrate. Thereafter, Banwarilal filed an application Under Section 340, Cr. P.C. On this application, the learned Magistrate ordered that a complaint be filed against the present petitioner for the offences Under Sections 193, 446 and 470, IPC. Accordingly, the complaint was filed by the Munsif Magistrate, Raisinghnagar. The petitioner moved an application and submitted that the prosecution is clearly without jurisdiction for want of sanction as required by Section 15A of the E.C. Act. The application was rejected by the order dated 15-2-83. Being aggrieved, the petitioner preferred a revision in the court of Additional Sessions Judge, Raisinghnagar, which was also dismissed. Hence, the petitioner has preferred this petition.
3. Mr. N. N. Mathur, learned counsel for the petitioner has submitted that the Magistrate has not formed any opinion as required Under Section 340, Cr. P.C. for filing the complaint, therefore, the initiation of criminal proceedings against the petitioner is absolutely without jurisdiction. He has relied on Deen Bandhu v. State of Rajasthan 1983 Raj LR 1027, Brijmohanlal v. Sohanraj, 1962 Raj LW 442: 1963 (1) Cri LJ 713, Nimmakayala Audi Narayanamma v. State of A.P. AIR 1970 Andh Pra 119 : 1970 Cri LJ 443.
4. Mr. P.C. Sharma, learned Public Prosecutor has submitted that the learned Judge has dismissed the revision. Mr. Sharma has submitted that the petitioner cannot be allowed to take recourse of Section 482, Cr. P.C. and has relied on a decision of the Supreme Court in Ranjan Kumar v. State of Karnataka, 1990 SCC (Cri) 537. He has also submitted that after considering the evidence it is not necessary for the court to use actual words of Section 340 namely prosecution is expedient in the interest of justice. Mr. Sharma, has relied on M. Muthuswamy v. Special Police Establishment, 1985 Cri LJ 420 (Mad).
5. I have heard learned counsel for both the parties and have perused the record.
6. To resolve the controversy, it would be proper to read Section 340, Cr. P.C. which 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 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 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 -
...
7. A perusal of the above provision would show that the proceedings can be initiated upon an application or otherwise. The Court is required to record a finding that in his opinion, it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195. It is only when such a finding is recorded, a complaint can be made by the Court in writing. In order to record such a finding, the court is empowered to conduct a preliminary inquiry as it thinks necessary. In the present case, the learned Magistrate while passing the order dated 13-5-81 has discussed the evidence and observed that from the perusal of original record and evidence of Pratap Singh Naruka who in his evidence has stated that on 21 -7-75 in the Godown Register Article A-1 Entry Ex. P-5, before the entry relating to Banwarilal he saw Shop No. 64 and the Dy. Collector, Gajendra Singh Haldia said Mr. Shiv Prasad Paliwal to make 64 as 69. On 21-7-75, as per the statement of Omprakash, till 11, 11-1/2 the entry was '64' but thereafter in his presence Shivprasad Paliwal has converted Number '4' to '9'. Banwarilal has also stated that when he applied for shop No. 64 and when his signatures were taken, the entry of Godown Number was 64. Nanuram has stated that till 19-7-75 Shop No. 64 was entered in Ex. P-5. Krapalchand has also stated that Shivprasad has interpolated in Article A-l Entry Ex. P-5 and made '64' as '69'. After considering the aforesaid evidence, the learned Magistrate has observed that the offence is made out and complaint is to be filed.
8. In Deen Bandhu v. State of Rajasthan, 1983 Raj LR 1027 (supra), in this case, in the Institution Register of the Execution Application the entry showed Rs. 5011 / - is due and the same was changed to Rs. 5000/-. According to Reader the initial was of Deen Bandhu. The learned Magistrate by his order dated 23-10-80 referred the matter to the District Judge for having been tampered with the original record. But no findings were recorded by the Magistrate before making of such complaint that he is of opinion that it is expedient in the interest of justice that an enquiry should be made into such offence. It has been held that absence of such finding vitiated making of such complaint and proceedings relating to complaint were quashed by the High Court.
9. In Brijmohanlal v. Sohanraj, 1963 (1) Cri LJ 713 (supra) it is observed that before a complaint is made the court has to record a finding that an offence referred to in Section 195 Sub-section (1) Clauses (b) and (c) has been committed in proceedings in that court and that an enquiry should be made into such offence. Recording of the above finding is a pre-requisite for making a complaint.
10. In Nimmakayala Audi Narrayanamma v. State of A.P., 1970 Cri LJ 443 (supra) it has been observed that the opinion or the satisfaction contemplated under Section 476 is an objective and not a subjective or the order passed by the Court and such an order must be a speaking one and supported by valid and justifiable grounds to enable the appellate court Under Section 467B to know the material on which the court had come to such a conclusion or opinion that it was expedient in the interest of justice to launch a prosecution. It is also observed that omission to record finding is not mere irregularity curable Under Section 537 but goes to root of matter.
11. In M. Muthuswamy v. Special Police Establishment 1985 Cri LJ 420 (Mad) (supra) in that case the learned Magistrate had observed that the personation and perjury committed by the accused were the products of a conspiracy and that personation and perjury and forgery before the court need to be enquired into and justice vindicated.
The Court had not employed the same words prosecution is expedient in the interest of justice. But from the observation of the Court, it was clear that prosecution was necessary for redressal of the grievance in the interest of justice. In the circumstances it could not be said that no finding had been given by the court and therefore the entire proceeding is vitiated.
12. It is clear that court while recording finding contemplate Under Section 340 need not strictly adhere to very language that "it is expedient in the interest of justice that an enquiry should be held" used in the Section but it must use such language that it leaves no doubt that it was a fit and proper case and it was in the interest of justice to launch the prosecution against the person as clearly observed in M. Muthuswamy's case (1985 Cri LJ 420) (supra) In the instant case the learned Magistrate has observed that offence is made out and complaint is to be filed. The Magistrate has though considered the evidence but he has not given any opinion in clear terms that it is in the interest of justice that enquiry should be made into an alleged offence, therefore, the observation of the learned Magistrate cannot be construed the opinion of the Magistrate that it is in the interest of justice that enquiry should be made into the offence.
13. It is true that inherent powers are used very sparingly and they are used only if it is necessary to give effect to any order or to prevent abuse of process of the court or otherwise to secure ends of justice. They cannot be invoked in respect of any matter of the court nor they can be exercised to override express provisions of law prohibiting the interference if their exercise would be inconsistent with any of the specific provisions of the Code. In the instant case, the learned lower court while dismissing the revision observed that the act of fabrication cannot be said to be an act in discharge of official duty and therefore, sanction Under Section 15A of the E.C. Act was not necessary. It is true that this point cannot be a subject matter in view of the Supreme Court decision in Ranjan Kumar v. State of Karnataka, 1990 SCC (Cri) 537 (supra) which provides a statutory bar but in this case, since the learned Magistrate has not formed any opinion as required Under Section 340, Cr. P.C. and allowing the proceeding without forming opinion that it is expedient in the interest of justice that an enquiry should be made into the offence amounts to abuse of the process of the court and therefore, there is no bar to invoke inherent jurisdiction and to secure ends of justice, the proceedings deserves to be quashed. In this view of the matter, this application deserves to be allowed and proceedings relating to making complaint deserves to be set aside.
14. Accordingly, the application is allowed and the proceedings relating to complaint and registration of the case are set aside.