Chattisgarh High Court
Tilendra Sahu vs Smt. Roshini Sahu on 18 October, 2022
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Criminal Appeal No. 1362 of 2022
Tilendra Sahu S/o Shri Manohar Sahu, Aged about 27 years,
R/o Village Mongra, Post Katalboard, P.S. Kurud, Distt.
Dhamtari, Chhattisgarh.
---Appellant
Versus
Smt. Roshini Sahu W/o Tilendra Sahu, Aged about 26 years,
R/o Village Bhilai, Tahsil Arang, Distt. Raipur, Chhattisgarh.
---Respondent
For Appellant :- Ms. Aditi Singhvi, Advocate
For Respondent :- None
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Shri Justice Deepak Kumar Tiwari
Judgment on Board
18/10/2022
Sanjay K. Agrawal, J.
1. This criminal appeal under Section 19(1) of the Family Courts Act, 1984 has been preferred by the appellant against impugned order dated 18/07/2022 (Annexure A/1) passed by learned 1st Additional Principle Judge, Family Court, Raipur in Case No. 676/21 whereby the application filed by the appellant under Section 340 of CrPC has been rejected finding no merit.
2. The respondent/wife herein filed an application under Section 125 of CrPC for grant of maintenance against the 2 appellant/husband which is pending consideration before the court of Principal Judge, Family Court, Raipur in which the parties are litigating and affidavits and documents have been filed on behalf of the parties. During the pendency of the said application under Section 125 of CrPC, the appellant herein filed an application under Section 340 of CrPC before the concerned Family Court stating inter alia that respondent has made false statements in affidavits, as such, she is liable to be proceeded under Section 340 of CrPC.
3. The aforesaid application filed by the appellant under Section 340 of CrPC came up for hearing before the Family Court on 18/07/2022 and learned Family Court, not being impressed with the said application, proceeded to reject it vide impugned order finding no merit and directed the respondent to remain present along with her witnesses on the next date of hearing.
4. Ms. Aditi Singhvi, learned counsel for the appellant, would submit that learned Family Court, without deciding the application under Section 340 of CrPC on merits, proceeded to reject it holding that the said application is not maintainable as the proceeding under Section 340 of CrPC is required to be dealt with separately, which is perverse and contrary to law, therefore, the instant appeal be allowed and after setting aside the impugned order, matter be remitted to the Family Court for hearing and disposal of the application filed by the appellant herein under Section 340 of CrPC in accordance with law.
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5. We have heard learned counsel for the appellant, considered her rival submissions made herein-above and went through the record with utmost circumspection.
6. For the sake of convenience, Section 340 of CrPC is reproduced below :-
"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 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 in 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 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 authorise in writing in this behalf.
(4) In this section, "Court" has the same meaning as in section 195."4
7. Section 340 of CrPC provides the procedure for offences enumerated in Section 195(1)(b) of CrPC. This provision is one of the exceptions to the general rule that any person can lodge complaint of an offence. When an offence is in relation to a Court under Section 195(1)(b) of CrPC, the sanction of the Court should be obtained first. The Court can initiate proceedings under Section 340 of CrPC only for the offences mentioned in Section 195 of CrPC. The object of Section 340 of CrPC 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 or evidence was in custodia legis and whether it is also expedient in the interest of justice to take such action as required under Section 340 of CrPC.
8. It is well settled law that formation of prima facie opinion that a person charged has intentionally given false evidence is a condition precedent for directing lodging of a complaint. 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 CrPC is recommended. 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 to be directed.
9. It is also well settled law that an application under Section 340 of the CrPC ought to be normally considered at the time of 5 final decision of the case only and not at the interim stage. It is the settled legal position that the said provision cannot be resorted to, to satisfy a private grudge of the litigant. In fact, the very genesis of this provision is to prevent complaints being filed of offences having been committed in relation to the Court proceedings and 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.
10. The Supreme Court (Constitution Bench) in the matter of Iqbal Singh Marwah and another v. Meenakshi Marwah and another1 has held that '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. It has also been held that as per the language of Section 340 of CrPC, the Court is not bound to make a complaint as the section is conditioned by the words "Court is of the opinion that it is expedient in the interests of justice". Paragraphs 23 and 24 of the report states as under :-
"23. In view of the language used in Section 340 CrPC 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 interests 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 it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This 1 (2005) 4 SCC 370 6 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. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.
24. There is another consideration which has to be kept in mind. Sub-section (1) of Section 340 CrPC contemplates holding of a preliminary enquiry. 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. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate fora which time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)(ii)."
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11. The decision rendered in Iqbal Singh Marwah (supra) has been followed with approval by their Lordships of the Supreme Court in the matter of Rugmini Ammal v. V. Narayana Reddiar2.
12. Reverting to the facts of the present case in light of the aforesaid principle of law laid down by the Supreme Court in Iqbal Singh Marwah (supra) which has been followed with approval in Rugmini Ammal (supra), it is quite vivid that in the instant case, the proceeding initiated by the respondent under Section 125 of CrPC has not been concluded finally and is still pending consideration before the Family Court, Raipur, as such, the initiation of proceeding under Section 340 of CrPC by the appellant herein was not warranted at all. In that view of the matter, learned Family Court is justified in rejecting the application filed by the respondent under Section 340 of CrPC finding no merit, as such, the impugned order passed by the Family Court is hereby upheld for the reasons mentioned herein-above.
13. Accordingly, this criminal appeal stands dismissed in limine.
However, the appellant is at liberty to proceed in accordance with law at the appropriate stage.
Sd/- Sd/-
(Sanjay K. Agrawal) (Deepak Kumar Tiwari)
Judge Judge
Harneet
2 (2007) 12 SCC 611