Allahabad High Court
Imran Khan vs State Of U.P. And Another on 7 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Neutral Citation No. - 2023:AHC:158255 In Chamber Case :- APPLICATION U/S 482 No. - 15802 of 2023 Applicant :- Imran Khan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rahul Kumar Tiwari,Sandeep Kumar Counsel for Opposite Party :- G.A. Hon'ble Surendra Singh-I,J.
1. This application under Section 482 Cr.P.C. has been filed against the impugned order dated 08.04.2022 passed by the Additional Chief Judicial Magistrate, Court No. 2, Budaun passed in Misc. Case No. 1664 of 2020, Imran vs. Ahtesham Miyan, under Section 340 Cr.P.C., Police Station Kotwali, District Budaun.
2. By the impugned order, the Trial Court rejected the applicant's application under Section 340 Cr.P.C.
3. The applicant had filed an application under Section 340 Cr.P.C. read with Section 195 Cr.P.C. relating to Criminal Case No. 10063 of 2016, State vs. Imran and others, arising out of Case Crime No. 592 of 2016, under Sections 498-A, 323, 504 I.P.C. and Section ¾ D.P. Act, Police Station Kotwali, District Budaun.
4. The order taking cognizance was challenged in Application U/S 482 No. 23574 of 2018, Imran and 2 others vs. State of U.P. and 2 others, whereon another co-ordinate Bench of this Court vide order dated 19.07.2018, restrained the authorities to take coercive measures against applicant-accused Afzal Hussain and Smt. Shameem Begam till the next date of listing. The said order of this Court was vacated by the Trial Court relying on the judgment of the Apex Court in Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation1, and notice was issued to the aforesaid co-accused to file any speaking order of the High Court extending the stay granted to them against such proceedings of the Trial Court.
5. Co-accused Afzal Hussain and Smt. Shameem Begam filed Application U/S 482 No. 2655 of 2020, Afzal Hussain and another vs. State of U.P. and 2 others before this Court. Another Bench of this Court vide order dated 20.02.2020, consolidated this application u/s 482 with previous Application U/S 482 No. 23574 of 2018 and directed the Trial Court not to take coercive action against the applicants Afzal Hussain and Smt. Shameem Begam till disposal of Application U/S 482 No. 23574 of 2018.
6. After lapse of more than six months, the informant Ahtesham Miyan submitted an application dated 14.10.2020 before the Trial Court in the aforesaid Criminal Case No. 10063 of 2016, stating that more than six months have elapsed since the interim order was passed in favour of the applicants and it has not been further extended by any speaking order. On the application of the informant Ahtesham Miyan, the Trial Court issued notice against the accused on 14.10.2020 directing them to file any fresh order of the High Court extending the indulgence of no coercive action passed in their favour on 20.02.2020.
7. Against the aforesaid notice issued by the Trial Court, applicant Imran Khan filed Misc. Application No. 1664 of 2020, Imran Khan vs. Ahtesham Miyan in the Trial Court on 21.11.2020, under Section 340 Cr.P.C. read with Section 195 Cr.P.C.. In this application applicant had stated that the High Court had passed order of no coercive action against them on 20.02.2020 and had fixed 13.03.2020 as the next date for hearing. The informant had knowledge of this order and the date fixed in the Application U/S 482 Cr.P.C., nevertheless, he submitted application dated 14.10.2020 praying for vacation of stay granted by the High Court in favour of the accused in compliance with the judgment of the Apex Court in Asian Resurfacing of Road Agency Private Limited (supra) and issuance of N.B.W. against the accused. Therefore, proceedings against the accused under Section 340 Cr.P.C. read with Section 195 be started and accused be tried and punished under Sections 182, 186, 190, 199 and 200 I.P.C. The Trial Court rejected the application vide order dated 08.04.2022 on the ground that a perusal of the order sheet dated 06.11.2020 of Criminal Case No. 10063 of 2016, it transpires that the Trial Court had left the informant after admonishing him that he may not file any misconceived application in future and, therefore, there is no justification for further proceeding against the accused.
8. Against the impugned order dated 08.04.2022 passed by the Trial Court, applicant filed Criminal Appeal No. 38 of 2022, under Section 341 Cr.P.C. in the Court of Sessions which was transferred and rejected by the Court of Additional Sessions Judge, Court No. 5, Budaun on the ground that applicant had justification for filing application dated 14.10.2020 in the Trial Court with the prayer that more than six months have passed since the order of no coercive measures have been passed and no fresh orders have been filed in the Trial Court and the Trial Court was justified in compliance with judgement of the Apex Court in Asian Resurfacing of Road Agency Private Limited (Supra) deem the interim order passed in favour of the accused, vacated and ensure their presence by taking coercive measures.
9. The applicants have prayed in their application under Section 340 Cr.P.C. read with section 195 Cr.P.C. that penal proceedings may be taken against the accused under the provisions of Section 195(1)(a)(i) read with Section 340 Cr.P.C. for committing offnece under Sections 182, 186, 190, 199, 200 I.P.C. and Section 195(1)(b)(ii) I.P.C.
10. Section 195 Cr.P.C. deals with contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Section 195 Cr.P.C. is reproduced herein below:
"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.
(1) No Court shall take cognizance-
(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860 ), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
11. Offences under Section 195(1)(b)(i) deals with the category of offences of false evidence and offences against public justice whereas Section 195(1)(b)(ii) deals with the second category of offences relating to offences in respect of a document produced or given in evidence in a proceeding in any Court. Section 195 Cr.P.C. lays down a rule to be followed by the Court which is to take cognizance of an offence specified therein but contains no direction for the guidance of the court which desires to initiate prosecution in respect of an offnece alleged to have been committed, whereas section 340 Cr.P.C. requires the Court desiring to put the law in motion to prefer a complaint either suo motu or an application made to it in that behalf.
12. Section 340 Cr.P.C. reads as follows:
"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 of 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."
13. Section 340 CrPC makes it clear that a prosecution under this section can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195(1)(b) has allegedly been committed. The object of this section 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. The court shall not only consider prima facie case but also see whether it is in or against public interest to allow a criminal proceeding to be instituted.
14. The Apex Court in Narendra Kumar Srivastava vs. State of Bihar and others2 in paragraph nos. 18, 19 and 20 has held as under:
"18. This Court in Chajoo Ram v. Radhey Shyam [Chajoo Ram v. Radhey Shyam, (1971) 1 SCC 774 : 1971 SCC (Cri) 331] , held that the prosecution under Section 195 CrPC could be initiated only by the sanction of the court and only if the same appears to be deliberate and conscious. It emphatically held as under: (SCC p. 779, para 7) "7. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge."
19. In Santokh Singh v. Izhar Hussain [Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406 : 1973 SCC (Cri) 828] , this Court has held that every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that the court should direct prosecution."
15. The Constitution Bench of the Apex Court in its judgment in Iqbal singh Marwah vs. Meenakshi Marwah3 in paragraph nos. 23 and 24 has held 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 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 property or status or the like, but such document may be just a piece of 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...
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..."
15. In the light of above discussed law propounded by the Apex Court relating to taking proceedings under Section 340 Cr.P.C. read with Section 195 Cr.P.C., this Court finds that this Court passed its last order on 20.02.2020 in Application U/S 482 No. 2655 of 2020 precluding coercive measures against accused in related Criminal Case No. 10063 of 2016, State vs. Imran and others. As per the law propounded by the Apex Court in the Case of Asian Resurfacing of Road Agency Private Limited (Supra) the aforesaid interim order would automatically deem to have been vacated after lapse of six months from 20.02.2020 i.e. on 20.08.2020. Thus, the informant Ahtesham was justified in submitting application before the Trial Court on 14.10.2020 alleging that since the above-mentioned interim stay has not been extended after six months by passing a fresh order, the Court may take coercive measures against the accused for ensuring their presence in the trial of the Criminal Case No. 10063 of 2016. Thus, there was no legal ground or justification in the misc. application of Imran Khan, under Section 340 Cr.P.C. requesting the Court to take criminal proceedings against the informant or for filing application with false averments made therein for issuing coercive measures against him.
16. In view of the above discussions, this Court is of the opinion that there is no ground to interfere or to quash the impugned order dated 08.04.2022 passed by the Additional Chief Judicial Magistrate, Court No. 2, Budaun in Misc. Case No. 1664 of 2020, Imran vs. Ahtesham Miyan, under Section 340 Cr.P.C., Police Station Kotwali, District Budaun or the Appellate Court as mentioned above in exercise of this Court's power u/s 482 Cr.P.C.
17. This application is dismissed, accordingly.
Order Date :- 07.08.2023 Brijesh Maurya