Karnataka High Court
Sri Jagadish S/O Irappa Hanamar vs Smt.Shankarewwa W/O Jagadish Hanamar ... on 10 October, 2017
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF OCTOBER 2017
BEFORE
THE HON'BLE MR. JUSTICE K.N.PHANEENDRA
RPFC.NO.200060 OF 2016
BETWEEN:
SRI JAGADISH
S/O IRAPPA HANAMAR
AGED ABOUT 36 YEARS,
OCC. AGRICULTURE,
R/O BISANAL, TQ. BILAGI,
DIST. VIJAYPUR - 586 101. ....PETITIONER
(BY SRI S.S.MAMADAPUR, ADVOCATE)
AND:
1. SMT SHANKAREWWA W/O JAGADISH HANAMAR,
AGED ABOUT 31 YEARS, OCC. NIL
2. KUMARI SAVITA
D/O JAGADISH HANAMAR,
AGED ABOUT 12 YEARS,
OCC. STUDENT,
SINCE MINOR REPRESENTED BY HER
NATURAL MOTHER AND M/G
THE RESPONDENT NO.1
BOTH ARE R/O SHEGUNASHI
TQ. & DIST. VIJAYPUR - 586 101.
... RESPONDENTS
(BY SRI.UMESH.V.MAMADAPUR & SRI.S.B.PATIL,
ADVCOATES FOR R1,
R2 IS MINOR REPRESENTED BY R1)
2
THIS R.P.F.C. IS FILED UNDER SECTION 19(4) OF
THE FAMILY COURTS ACT, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT DATED 09.09.2016
PASSED BY THE LEARNED JUDGE, FAMILY COURT,
VIJAYPUR IN CRL.MISC.NO.121/2015.
THIS R.P.F.C. COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the respondents. Perused the judgment of the trial Court i.e., Family Court Vijayapur in Cr.Misc.No.121/2005.
2. For the purpose of convenience and easy understanding, the ranks of the parties before the trial Court in the petition, is retained.
3. The petitioner Smt.Shankarewwa and Kumari.Savita have filed a petition under Section 125 of Cr.P.C. claiming maintenance against the respondent- 3 Jagadish. It is the specific contention of the petitioners that the petitioner No.1 is the legally wedded wife and petitioner No.2 is the daughter of respondent. The marriage of petitioner No.1 and the respondent had taken place about 12 years prior to the filing of the petition. It is contended that the respondent is negligent and refusing to maintain the petitioners and ill-treated them etc. Therefore, they were forced to file a petition for maintenance. The respondent appeared before the trial Court and contested the proceedings. There is no any dispute about the relationship between the parties. However, the respondent has taken up contention that he is not able to pay the amount as claimed. The trial Court has framed various points for consideration and ultimately has come to the conclusion that the wife has proved the negligence and refusal by the respondent to maintain the petitioners. Considering the avocation and also the income of the respondent, the trial Court has awarded an amount of Rs.3,000/- per month each to 4 the petitioners from the date of petition till further orders against the petitioner No.1 and till the petitioner No.2 gets married. The Court below has also awarded Rs.1,000/- towards litigation expenses. Apart from awarding maintenance, the trial Court has also ordered to lodge a complaint for the offence punishable under Section 191 of IPC against the respondent before the Jurisdictional Magistrate, Vijayapur, by directing the Administrative Sheristedar to present a copy of the order before Jurisdictional Magistrate Vijayapur, to take necessary legal action against the respondent for giving false evidence before the Court of law.
4. On careful perusal of the observation made by the trial Court, the trial Court has considered in detail the avocation of the respondent about his income. Apart from that, the trial Court has taken serious view that, by way of pleadings the respondent has admitted the relationship between him and the petitioners. 5 However, during the course of evidence he tried to project that the petitioner No.2 is not his daughter and thereby he denied the relationship between them as husband and father of petitioner No.1 & 2 respectively. The trial Court after analyzing the oral and documentary evidence on record has come to a definite conclusion that the petitioner No.1 has proved that the petitioner No.2 is the daughter of respondent. When once the respondent makes an attempt before the Court about the relationship which is admitted fact, at the earliest, nothing is requires to be proved by the petitioners to claim maintenance. The conduct of the respondent itself is sufficient ground to grant maintenance, because denial of relationship, itself amounts to negligence and refusal to maintain the petitioner.
5. The amount awarded by the trial Court of Rs.3,000/- per month, cannot be at any stretch of 6 imagination called as an exorbitant in nature. Even without considering any income of the respondent, the Court has to consider what is the minimum requirement for two persons to live in the society and considering the cost of living. Therefore, I am of the opinion that amount of Rs.3,000/- is ordered considering the income of the respondent and also minimum requirement of the petitioners. Therefore, absolutely no interference is called so far as quantum of maintenance awarded by the trial Court.
6. Be that as it may. The learned counsel for the petitioner strenuously contended before this Court that though the trial Court has come to a conclusion by analyzing the evidence on record and given findings that the respondent has committed an offence punishable under Section 191 of IPC. But trial Court has not followed the procedure strictly under Section 340 of Cr.P.C. Though the trial Court has extracted the 7 provisions under Section 191 of I.P.C. and 340 of Cr.P.C. the Court below has not properly understood the procedure contemplated under Section 340 of Cr.P.C. in referring a private complaint to the Jurisdictional Magistrate, Vijayapur to take necessary legal action against the respondent for giving false evidence before the Court of law for the offence punishable under Section 191 of IPC. In this background on careful perusal of Section 340 of Cr.P.C. it mandates that :-
"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 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, record 8 a finding to that effect, make a complaint thereof in writing, send it to a Magistrate of the first class having jurisdiction."
7. Elaborating the above said section interpretation has been made by the Hon'ble Apex Court is also relevant to the born in mind.
8. Hon'ble Apex Court in a decision reported in (2017) 1 S.C.C. 113 in the case of Amarsang Nathaji and others /vs/ Hardik Harshadbhai Patel and others, the Hon'ble Apex Court dealt with Section 340 and 195 of Cr.P.C. The guidelines on the basis of Section 340 of the Cr.P.C. The Hon'ble Apex Court has laid down the following principle:-
"Criminal Procedure Code, 1973 Section 340 and 195, initiation of prosecution for perjury, preconditions therefore, mere fact that a contradictory statement was made in judicial proceeding is not by itself sufficient to justify prosecution for perjury, it must be established that such act was committed intentionally, 9 procedure to be followed by courts in forming opinion and lodging complaint, explained,
- Respondent filed civil suit against appellant- accused-Trial Court declined to grant temporary injunction-In appeal, High Court upheld order of trial Court-Even SLP was also dismissed-Meantime, High Court noticed certain contradictory statements of appellant accused-It ordered for initiation of prosecution under Section 340 Cr.P.C-sustainability of,
-Held, preconditions for initiating proceedings under Section 340 are (i) materials produced before Court must make out prima facie case for inquiry about alleged offence; and (ii) it should be expedient in interest of justice to hold such inquiry about alleged offence-Mere making of contradictory statement by itself is not sufficient to proceed under Section 340 Cr.P.C.-It must be shown that such statement was intentionally made-Thereafter, Court has to form an opinion that it is expedient in the interest of justice to initiate an inquiry-In order to form an opinion, Court must prima facie be satisfied that offence appears to have been committed-Further, Court may hold 10 preliminary inquiry though it is not mandatory-If Court formed an opinion that offence under Section 340 stood committed then it may dispense with preliminary inquiry-If formation of opinion is possible without conducting preliminary inquiry, then such opinion can be formed-Even after forming opinion, Court has to take decision whether it is required to file complaint considering facts and circumstances of case- Where Court feels that it was required to lodge complaint then it can make complaint in writing to jurisdictional Magistrate-Upon receipt of complaint, jurisdictional Magistrate has to proceed under Section 343 Cr.P.C. treating offence as warrant case".
9. The Hon'ble Apex Court has categorically observed that, even if the Court has concluded that, any of the party have committed any offence under the provisions of IPC particularly, Section 195 of Cr.P.C, though after reaching such opinion, also the Court has to take a decision whether it is required to file a 11 complaint considering the facts and circumstances of the case. It has to give findings specifically that, after coming to a such conclusion that, a person has committed an offence, it is expedient and absolutely necessary to initiate enquiry and to refer a complaint against such person to the Jurisdictional Magistrate. Applying the above said principle as stated by the Hon'ble Apex Court the conditions of Section 340 particularly in this case on various paras the Court has considered that the respondent has committed an offence punishable under Section 191 of IPC. At Para No.43 the Court has come to the conclusion that the respondent has given false evidence before the Court. But without expressing anything with regard to the intention of the respondent and without forming any opinion with regard to refer the complaint and without holding any preliminary enquiry the trial Court has directed the Administrative Sheristedar to refer the complaint to the Jurisdictional Magistrate, Vijayapur. In 12 view of the said facts and circumstances, though the order of the trial Court in referring the complaint may be within his powers but he did not follow the procedure, as required under Section 340 of Cr.P.C. Therefore, to that extent it is just and necessary to remit the matter to the Jurisdictional Magistrate, Vijayapur to reconsider the above aspect and to hold preliminary enquiry if necessary, thereafter give appropriate finding with regard to the intention of the respondent, that whether he has intentionally committed such an offence and also whether under the facts and circumstances of the case, it is absolutely expedient to refer the complaint to the Jurisdictional Magistrate. Accordingly, I proceed to pass the following....
ORDER The petition is partly allowed.
The judgment and award passed by the Family Court in awarding maintenance and cost to the petitioners No.1 and 2 is confirmed. 13
However, order directing the Administrative Sheristedar to lodge a complaint before the Jurisdictional Magistrate, Vijayapur against the respondent for the offence punishable under Section 191 of IPC is hereby set-aside. To that extent matter stands remitted to the family Court to pass appropriate orders in the light of the observation made in the body of this order, if necessary after holding preliminary enquiry as contemplated under Section 340 of Cr.P.C.
With these observations petition is disposed off.
Sd/-
JUDGE KJJ