Punjab-Haryana High Court
Gurpreet Singh Kang vs Gurpartap Singh on 1 April, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Misc.-M No. 2535 of 2011 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc.-M No. 2535 of 2011 (O&M)
Date of decision : 01.04.2013
Gurpreet Singh Kang .....Petitioner
VERSUS
Gurpartap Singh ....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. H.S. Dhindsa, Advocate
for the petitioner.
Mr. Arun Bansal, Advocate
for the respondent.
****
RANJIT SINGH, J.
The petitioner has approached this Court under Section 482 Cr.P.C. for quashing of the complaint, Annexure P-3, filed by the respondent, Gurpartap Singh under Section 340 Cr.P.C. against the petitioner for which the petitioner has statedly been summoned. The whole grievance of the petitioner is that he has been summoned by passing a rather cryptic and one line order which reads as under:
" In the above noted case you are hereby directed to appear in this case on 10.6.10 at 10.00 a.m."
Summoning has followed for filing false affidavit. It is averred that the petitioner is a senior citizen and is related to Baby girl Jasleen daughter of Rupinder Mann wife of respondent. The petitioner had filed this petition acting as GPA on behalf of Rupinder Criminal Misc.-M No. 2535 of 2011 (O&M) 2 Mann, who is natural guardian of minor Jasleen. The civil suit was filed through this GPA under Order 33 Rule 1 CPC for grant of decree for recovery of ` 1,60,000/- as maintenance allowance in the Court of Additional Civil Judge (SD), Malout. The suit filed by the petitioner as GPA is annexed with the petition. This civil suit is still pending. The application moved by the petitioner under Order 39 Rule 1 and 2 filed by the present petitioner was dismissed. Against this order, the petitioner is pursuing his remedy.
The respondent was earlier restrained from alienating 1/3rd share of the suit land vide order dated 21.04.2007. The petitioner is alleged to have submitted the false affidavit before the trial Court and so the petition under Section 340 Cr.P.C. was filed on 18.10.2009.The petitioner alongwith mother of minor were summoned at the first instance. The grievance of the petitioner is that no satisfaction was recorded before summoning the petitioner that the offence under Section 195 (1)(b) IPC was made out.
Counsel for the petitioner would allege that this summoning is in violation of the procedure prescribed under Section 340 Cr.P.C., where the Court after holding preliminary inquiry has to record the finding to that effect and thereafter may make a complaint thereof in writing. On the other hand, counsel for the respondent would allege that the petitioner has just been summoned to appear and explain his conduct before any further proceedings are initiated. The order does not convey any such sense as urged by the counsel for the respondent. Summoning of the accused to explain before filing of any complaint by Court otherwise would also appear in Criminal Misc.-M No. 2535 of 2011 (O&M) 3 violation of provisions of Section 340 Cr.P.C. Section 340 Cr.P.C. 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 interest 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,--
(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 for 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,--
(a) where the Court making the complaint is a High Criminal Misc.-M No. 2535 of 2011 (O&M) 4 Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195.
Bare reading of this provision would show that when any application is made to the Court and the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Section 195 (1)(b) and when it appears to have been committed in or in relation to a proceedings in that Court. The Court may hold preliminary inquiry and then record the finding to that effect. Having done, the Court has to make a complaint thereof in writing.
I am unable to trace any provision which would authorize the Court to summon accused for the purpose of holding preliminary inquiry. That will be in violation of the concept of criminal jurisprudence. Ultimately, the petitioner being accused of committing an offence is prospective accused. Calling him to hold enquiry from him may be seen making him to be a witness against himself. This would be against the constitutional mandate.
Before filing complaint, the petitioner certainly cannot be called to plead his defence so far as the allegations of offence under Section 195 (1)(b) are concerned. The procedure, as adopted, by the Court, apparently, is in violation of provisions of Sections 340 Cr.P.C.
It may also need a notice that Section 340 Cr.P.C. is not exhaustive. It embraces only those offences referred to in Section Criminal Misc.-M No. 2535 of 2011 (O&M) 5 195 (1) (b) in respect of which a complaint of the Court is necessary. The provisions of Sections 195 and 340 Cr.P.C. do not circumscribed the power of police to investigate. The provisions of Section 195 is applicable once investigation is completed. The Court then file complaint under Section 340 Cr.P.C. on the basis of FIR and the material collected during investigation. Otherwise also, the object of the inquiry under these Sections is to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or given in evidence in Court during the time when the document was in custodia legis. (See Sachida Nand Singh and another versus State of Bihar and others AIR 1998 SC 1121). When the document is forged outside the precincts of the Court and produced in evidence in Court, the holding of an enquiry may not be necessary nor it is the requirement of law. Mere production of document, which has not been proved as forged one cannot be basis for ordering prosecution under Section 340 Cr.P.C. It is necessary to record finding that it would be expedient in the interest of justice that inquiry should be made into the offence alleged. This is held to be a mandatory requirement. The Court should not launch prosecution unless it considers that it is expedient in the interest of justice. The Court should also not launch the prosecution unless it considers that it is not undertaken to satisfy the private grudge of the litigant. In short, wide discretion is given to the Court under this Section and this discretion should be exercised by the Court with care and caution inasmuch as the object of this Criminal Misc.-M No. 2535 of 2011 (O&M) 6 section as well as of Section 195 Cr.P.C. is to provide a safeguard against frivolous and vexatious prosecution.
The reading of Section 340 Cr.P.C. would clearly show that this Section required the Magistrate to make a preliminary inquiry and to come to the finding on the prima facie of the truth of the allegation and then only he could lodge the complaint. Opportunity of hearing to the accused before filing the complaint is not necessary. The Court has to form opinion that the person charged has intentionally given false evidence, which is a condition precedent for directing lodging of complaint. That being the parameters, the Court will have to examine the issue in the light of the same.
The reading of the provisions of Section 340 Cr.P.C. would clearly show that the Court after holding the preliminary inquiry has to record the finding to that effect and then make a complaint in this regard. The Court, apparently, has violated the procedure prescribed under Section 340 Cr.P.C. The impugned order, therefore, cannot be sustained. The same is set aside.
The petition is allowed. However, this would not be a bar for the Court to follow the proper procedure and then see in case the petitioner is to be summoned for any offence committed under Section 195 (1)(b) IPC or not.
April 01, 2013 ( RANJIT SINGH ) rts JUDGE