Perjury in 125 crPc

IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 1130/2008 & CRL.M.A.4231/2008

JAGDISH PRASAD ….. Petitioner Through: Mr.R.B. Pandey, Advocate.
versus
STATE & ORS. ….. Respondents Through: Mr.Jaideep Malik,APP.
Mr. R.P. Kaushik, Advocate for Respondent No.2.

CORAM:HON’BLE DR. JUSTICE S. MURALIDHAR

ORDER

1. This petition under Section 482 of the Code of the Criminal Procedure (CrPC)
is directed against an order dated 22nd February 2008 passed by the learned
Additional Sessions Judge (ASJ) Delhi allowing Crl.A.No.18 of 2005 filed by the
Respondent No.2 against an order dated 9 th September 2005 passed by the
learned Metropolitan Magistrate (MM) Delhi in an application filed by the
Petitioner herein under Section 340 CrPC. By the said order dated 9th September
2005, the learned MM came to the prima facie conclusion that Respondent No.2
had committed an offence under Section 193 of the Indian Penal Code (IPC) and
ought to be prosecuted for the same. The learned ASJ has, in the
impugned order, set aside the order dated 9 th September 2005 on the ground that the learned MM had not determined if it was
expedient in the interests of justice that an inquiry should be held for
ascertaining whether the Respondent No.2 should be prosecuted for the offence under Section 193 IPC.

2. The brief facts leading to the filing of the present petition are that
Respondent No.2 wife filed an application under Section 125 CrPC seeking
maintenance from the Petitioner husband for herself and the minor female child.
In her petition she stated in Para 15 that she was “not employed anywhere and
is unable to maintain herself and her said minor girl Shruti and they presently
are survived on the mercy of parents of the petitioner No.1 (wife) who
themselves have limited resources to maintain the large family.”

3. According to the Petitioner in the month of June 2001, the Respondent No.2
wife had joined Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi as a
‘Receptionist’ and was receiving salary from the said hospital. On this basis,
Petitioner had earlier filed an application under Section 340 CrPC which,
according to Respondent No.2, was dismissed on 16th September, 2003.

4. On 12th February 2004, Respondent No.2 was examined in chief in the
maintenance petition. She stated: “I was not working anywhere after my
marriage, I was not working till today anywhere from the date when I
was kicked out from my matrimonial home.” She was
cross examined on 7th April 2004 and was asked whether she was doing any job
during the pendency of the petition. She replied that “since after coming to my
parental home, I am not doing any job. I have one bank account in Co− operative
Bank. It is incorrect to suggest that after coming to my parental home, I have
worked with Tirath Ram Shah Charitable Hospital, Rajpur Road, Delhi.” In
response to another specific question whether she was holding a bank account at
Punjab National Bank, Civil Lines she stated as under:
“It is wrong to suggest that I am holding an account which is 427791 in the
above said bank i.e., PNB”

5. Consequent upon the above replies in cross examination, the Petitioner filed
an application under Section 340 CrPC seeking the prosecution of the Petitioner
for committing perjury punishable under Section 193 CrPC.

6. It appears that a reply was filed to the said petition by Respondent No.2.
Even evidence appears to have been led by examining the officials from both the
Punjab National Bank as well as the Tirath Ram Shah Charitable Hospital.

READ  How to declare an accused to proclaimed offender PO

7. RW−2 D.S. Bandari, Senior Manager, Punjab National Bank, Civil Lines, Delhi
was examined on 28th September 2004. He confirmed that an account had been open by Respondent No.2 with the bank with the
addresses “C/o Tirathram Shah Hospital, 2 Battery Lane, Rajpur Road, Delhi
−54.” He stated:
“On 20.07.01 Smt. Veena Bhatt opened her
account in Punjab National Bank, Civil Lines, Delhi. The
account was introduced by Sh.B.Arora, SF account No.11908 with the address C/o
Tirathram Shah Hospital, 2 Battery Lain(sic Lane), Rajpur
Road, Delhi−54 with a initial amount of Rs.500/−. She was allotted account
No.427791. Statement of the account since opening of the account till today is
exhibited as Ex.RW2/A, Ex.RW2/B, Ex.RW2/C, Ex.RW2/D. At the time of opening of
account Smt. Veena Bhatt stated her occupation “service” which has been written
in point A over Ex.RW2/D.

8. RW−3 Manoj Nair, AAO, Tirath Ram Shah Hospital in his examination in chief
stated as under:−
“The authority letter given by Dr.A.K.Dubey, Director is
Ex.RW3/A. That from 06.06.01 to 10.06.02 Mrs.Veena served in Tirath Ram
Shah Hospital. She was working as a
receptionist on fixed term contract basis. The gross salary of Mrs.Veena was Rs.3,572/−
only. Her employment no. was 1225. I identify Mrs. Veena who is present in the
court. There was break in service for one day. Smt. Veena Bhatt was working as a
receptionist and not as a trainee as per the record. In my
hospital no receptionist trainee are engaged. She
has not applied for the renewal of her further contract after 10.06.02. I can
submit a copy of the application form and record of salary if required. The
original is before this hon’ble court. Application for employment form is
Ex.RW3/B (four pages)
and the copy of salary register for the month of June, 2001 to
June, 2002 are collectively Ex.RW3/C (12 pages).”

9. The cross examination only elicited the following clarification by Respondent No.2:−
“It is correct that Smt. Veena had not worked in the hospital
as a permanent hospital (sic) or on ad hoc basis or on temporary basis she had
worked only on contract basis.

10. The learned MM in the order dated 9th September 2005 came to the following
conclusion:−
“I have gone through the record of the present application as
well as the petition under
Section 125 Cr.P.C., which is pending in the present court.
Smt. Veena may have had a
genuine cause for having worked as proved
against her in her case and also admitted by her in the
present proceedings. Nevertheless her pressing requirements for income does not
exonerate her from the offence of having
given false testimony in the court.
I am, therefore, of the opinion that Smt.Veena has committed an offence under
Section 193 IPC and she ought to be
prosecuted for the same.”

11. Aggrieved by the above order, Respondent No.2 filed an appeal in the Court
of learned ASJ. Among the grounds urged in the appeal were that an earlier
petition under Section 340 CrPC having been dismissed, a further application
ought not to have been entertained by the learned MM. It was further urged that
there was never any intention on the part of Respondent No.2 to commit any
offence and that her only intention was to claim maintenance as per law. It was
sought to be urged that in the recording of the answers to the questions put to
Respondent No.2 in her cross examination there were chances of inadvertent
mistakes “unless it is in the language of the appellant/witness i.e.
Hindi/vernacular language.”. It was also urged that the learned MM had, in
fact, pronounced a final judgment on the guilt of the Respondent No.2 for the
offence under Section 193 IPC and, therefore, the order dated 9th September
2005 stood vitiated.

READ  Whether a person can be contradicted by his statement in dairy kept by him?

12. In the impugned order dated 22nd February 2008, the learned ASJ has
referred to the judgments of the Supreme Court in Afzal v. State of Haryana and
others AIR 1996 SC 2326, Murrari & Company 2002 (2) SCC 367 and Pritish v.
State of Maharashtra and others AIR 2002 SC 236 to hold that it was incumbent
on the learned MM to come to a definite conclusion that it was expedient in the
interest of justice that an action should be
taken against respondent No.2 under Section 193 IPC. The learned ASJ proceeded
to observe as under:− “Mere recording of a finding to the effect that an
offence punishable under section 193 of
the Penal Code was committed would not
answer requirement of section 340 of the
Code. When primary question was answered
in affirmative then secondary and most
effective proposition was to be answered to the effect whether
it was expedient in the
interest of justice to initiate an action in the matter. No
such step was taken by the Trial Court to see that it was expedient in the
interest of justice to take such action. In such a situation,
order impugned is shrouded with illegality. In cannot be allowed to stand.
Consequently, order impugned is set−aside
and appeal is granted. Trial Court record be sent back. File
be consigned to Record Room.”

13. Learned counsel for the Petitioner makes a two−fold submission. According
to him, the learned ASJ, hearing the criminal appeal had to specifically direct
the complainant to withdraw the complaint and could not have passed any other
order. Secondly, he submits that a reading of the order dated 9th September
2005 passed by the learned MM shows that, in fact, the learned MM had come to a
conclusion about the expediency in the interest of justice for prosecuting
Respondent No.2 thus satisfying the requirement of the law under Section 340

14. Learned counsel for the Respondent No.2 urged that there was no illegality
in the order of learned ASJ mandating a full−fledged inquiry prior to the
formation of opinion that it was expedient in the interest of justice to
prosecute Respondent No.2. He submits that inasmuch as there was no specific
conclusion drawn by the learned MM to that effect, the order dated 9th
September 2005 stood vitiated. He also submits that with the learned MM already
having concluded on the guilt of Respondent No.2, nothing really remained as
far as the prosecution of Respondent No.2 was concerned. It would be an empty formality.

15. The submissions of both sides have been heard. As regards the first
contention, a reference may be made to Section 341 CrPC which reads as under:−
(1) Any person on whose application any
Court other than a High Court has refused to make a complaint
under sub−section (1) or
sub−section (2) of section 340, or against
whom such a complaint has been made by
such Court, may appeal to the Court to which such former Court
is subordinate within the meaning of sub−section (4) of section 95, and the
superior Court may thereupon, after notice to the parties concerned, direct the
withdrawal of the complaint or, as the case may be,
making of the complaint which such former
Court might have made under section 340,
and if it makes such complaint, the provisions of that section
shall apply accordingly.”

READ  Anticipatory bail can be granted to husband u/s Sections 498-A, 376 and 377, IPC ?

16. A plain reading of the above provisions would show that an appeal can be
filed by either a complainant seeking to invoke Section 340 CrPC or by a person
against whom the Court below has invoked the provision. In the instant case,
the provision was successfully invoked by the Petitioner before the learned MM
and it was Respondent No.2 who filed an appeal. While accepting her submission,
learned ASJ set aside an order dated 9th September 2005. The effect of this was
the withdrawal of a complaint itself. Therefore, there was no illegality
committed by learned ASJ as far as the order that should have been passed under
Section 341 CrPC. The first submission of learned counsel for the Petitioner is
accordingly rejected.

17. That brings us to the merits of the case. The only ground on which the
learned ASJ appears to have set aside the order dated 9th September 2005 passed
by the learned MM is that a definite opinion was not formed by the learned MM
that it was expedient in the interest of justice to prosecute Respondent No.2
for the offence under Section 193 IPC. The learned ASJ unfortunately does not
appear to have referred to the record of the detailed inquiry conducted by
learned MM. This involved not only considering the reply filed by Respondent
No.2 but also the evidence recorded of RW−2 i.e. the Senior Manager D.S.Bandari
of the PNB and RW−3, the official of the ‘Tirath Ram Shah Hospital Manoj Nair.
In the light of the evidence of these witnesses, the relevant portion of which
have been extracted hereinbefore, there was no question learned MM having to hold any further inquiry in order to determine
whether Respondent No.2 ought to be prosecuted or not.

18. In the considered view of this Court, when the learned MM in the order
dated 9th September 2005 observed “I am, therefore, of the opinion that Smt.
Veena has committed an offence under Section 193 IPC and she ought to be
prosecuted for the same”, the requirement of Section 340 CrPC as explained by
the Supreme Court stood satisfied. In other words, the opinion formed by
learned MM was obviously only a tentative or a prima facie one. This is plain
from the expression “ought to be prosecuted”. Further, the same expression
“ought to be prosecuted” also indicates the formation of an opinion that it was
expedient in the interest of justice that Respondent No.2 should be prosecuted.
Therefore, both the requirements of law as explained by the Supreme Court in
relation to Section 340 CrPC stood completely satisfied by the order dated 9th
September 2005 passed by the learned MM. This Court is, therefore, unable to
agree with the conclusion reached by learned ASJ to the contrary.

19. The order dated 22nd February 2008 passed by the learned ASJ is accordingly
set aside. The order dated 9th September 2005 passed by the learned MM and the
consequent application presented to the learned Additional Chief Metropolitan Magistrate for prosecuting Respondent No.2 are revived. The further steps will proceed in accordance with law.

20. The petition is accordingly allowed with no order as to costs. The pending application is also disposed of.
S. MURALIDHAR, J.
MARCH 23, 2009

3 thoughts on “Perjury in 125 crPc

  1. Kind Attention
    To,
    The Incharge of the Department.
    Respected Sir,
    100% now I believe that if you have money then you can get anything, every thing is possible by you. If you are a poor then you can’t get anything, every thing is far and beyond possible to you, also you get poor judgment and poor comportment in all aspects of life, in our country INDIA. For example 1. I. I went to Police Station more than 100 times, made 5times entries (complaints) into G.D. but Not even a microscopic actions took place against the alleged bodies. On the contrary Sandip Samanta, S/O. Shankar Kumar Samanta (S.B.I. OFFICER Ph. No. 9830366434, Branch: 24B, Nimtala Ghat Street, Jorabagan, Kolkata- 700006, West Bengal, India‎, Bank Ph. No. 033 25308337) he has much more and enough money so they purchase all police personnel’s and some political leaders, some Dada. Etc. Only I used to get many letters and many phone calls which all seem to me needs to be thrown in the trash, as it all are valueless, toothless and only simply a solace to the poor. What an undone boy I am! Woe is to me! My wife and her family, Shankar Kumar Samanta and his family harassed me and my family, they are torcher me physically and mentally, and all time told that they kill me and my family. Dt. 06.08.2010 Case no.336 U/S: 147,148,448,325,379/34 Sandip Samanta, doing the case me and my family, and his evidence only his father, mother and his uncle, not a single man in my village for their evidence, it’s a 100% fabricated case.

    We got married 05/03/2002, and have a daughter who took birth on 09/07/2005. My wife and her family lodged a case 498A/34 IPC, FIR NO.276, date 31/08/2009, P.S.: BAGUIATI, against me and some of my family members it’s a fabricated, baseless, legless, toothless and doesn’t have any commensurate to the fact. My wife is engaged and having an illicit affair with a boy (Sandip Samanta, S/O. Shankar Kumar Samanta S.B.I. Officer Ph. No. 9830366434, Branch: 24B, Nimtala Ghat Street, Jorabagan, Kolkata- 700006, West Bengal, India‎, Bank Ph. No. 033 25308337) just opposite to my house, all the matters are known to every person in my village, and also they have certified me written about my fresh character and nature. When my wife left form my house with Sandip Samanta taking many vory gold and cash 1.20 lack Indian rupees. What a demon she is! She didn’t take our only daughter (only four years old) who is now in my house having severe asthma supported by inhaler. My wife filed the 498A case dated 31/08/2009 and I was arrested on 06/09/2009, how much money Taken Baguiati police form my father and others for 498A/34 I.P.C., fabricated Charge Sheeted, I don’t know, because then I’m in Jail. The Learn” ed court granted me on bail on 19/09/2009. Barasat court. I have lots of irrefutable evidences, (20 pcs. Adult S.M.S., Adult picture with the boy and a c.d.) with me where it is cleanly reveals which translates my wife and the boy that they are in illicit relations. Believe me I and my family would love very much (which is very rare seen in our society) to my wife and never any kind of love lost didn’t happen. They (My wife family) are very very poor and live in a bosti Address: 70/H/8 Manicktolla Main Road, Kolkata – 700054, Beside 5 Star Club, my mother saw 1st time and she arranged my marriage. Before marriage my family did not see the pedigree of my wife’s family, now we understood also realized that they hailed from a worst status. My wife, her family and (Sandip Samanta, S/O. Shankar Kumar Samanta) all they are misusing this law. Now my wife’s family knows all the affair-related matter. My wife left our only solitary daughter to me who is 4 years old having severe “Asthma Disease, depends on INHALER, here political Hide and seek, ducks and drakes and lots of unfair means are going on and the father of the parents (THE FATHER OF THE BOY WHO HAS ILLICIT RELATIONS WITH MY WIFE) are rich, so they are spending money to everywhere with a view to be escaped. Now I decided that in no way I can’t accept that demon wife. I hired a lawyer his name Mr. Kamelash Nandi. I don’t know what will be happened next? It’s an utterly a huge and a palpable offence subsequent to which the boy deserves severe and examplanary punishment so that no one can dare to abuse this law. My mother is a sugar present shies sugar is now 400. If possible please help me. Please investigate the matter thread barely and save me and my family. I leave here one question to every one that in this die-straits situation whom do I take care to myself (TRAGEDY), my daughter, or my mother (severe Diabetic)?. My wife filed another case me U/s. 125 Cr. P. C. Case NO.167/2009, (Smt. Nita Sarkar J.M. 1st Court Sealdah South 24 Parganas. Date 16/12/2009.) They take 4(four) Advocate at Sealdah Court. I am millions miles away from the genuine and authentic investigation and inquiry. No inquiry, investigation were executed against the F.I.R lodged by my wife. It is very painful, lamentable as well as heart rendering, breath taking affair to me and my family. My heart bursts into guffaw when I see the nature of the inquiry and investigation. One thing is as clear as crystal to me that the law and the task of the law enforcing agencies vary from man to man. A new proverb is going to take birth very soon that “Justice for the rich and Injustice is for the poor” A rich reserves the right to indulge in any kind of heinous business but the poor is restricted to involve in any type of excellent deeds” To see all these my heart is about to come in the mouth and the ground under my feet gets shook. In a word all types of Law are for the poorest and the richest will enjoy the richest judgments from all quarters.

    After coming form the DumDum Central Jail, I mat with the BAGUIATI POLICE O.C. Mr. Goutam Mitra, and asked him politely: “ SIR I FAILED TO UNDERSTAND THAT I MADE SO MANY ENTIRIES INTO YOUR G.D.E. BUT YET NO ACTION SO FAR HAS NOT BEEN TAKEN FORM YOURSELF” then BAGUIATI POLICE O.C. Mr. Goutam Mitra, went through all my papers (20 pcs. Adult S.M.S., Adult picture with the boy, G.D.E, MANY MANY OTHER PAPERS RELATED TO MY CASE and TWO c.d.). After seeing all my papers he told me that I cannot take any action until and unless you lodge a case against all of them.

    Then I Prayed to the Ld. C.J.M at Barasat court to lodge the case, against the alleged person. (The payer to the Ld. C.J.M. is enclosed which is self-explanatory) after filing the case (The case is starting At Baguiati Police Station Case No-168 Date: 24.04.2010. CHARGE 323, 379, 406, 497, 498, 500, 504, 506 READ WITH 34/120B OF INDIAN PENAL CODE) the BAGUIATI POLICE O.C. Mr. Goutam Mitra, and I.O. Mr. Prasenta Kumar Das, Mr. Ajay Kumar Ghosh, in stead of taking not any take proper investigation/ not take any action/ not take any type of query to recover my Cash and Gold form the house of Shankar Kumar Samanta, The BAGUIATI POLICE O.C. Mr. Goutam Mitra, and I.O. Mr. Prasenta Kumar Das, Mr. Ajay Kumar Ghosh, took my case as a Golden Goose, and how much money BAGUIATI POLICE O.C. Mr. Goutam Mitra, and I.O. Mr. Prasenta Kumar Das, Mr. Ajay Kumar Ghosh, has taken is well known to them. Neither he took any take proper investigation/ not take any action/not take any type of query nor he did roundup them against my case.

    When I saw that already near by 90-100 days went by “ I went to the BAGUIATI P.S. to know the status of the case then BAGUIATI POLICE I.O. Mr. Prasenta Kumar Das, Mr. Ajay Kumar Ghosh, became outraged me and my mother that if you ask about Shankar Kumar Samanta and his family I will sentence you and your family in the Jail, all their languages is so much filthy dirty which I cannot express front of you.
    As I’m 100 percent innocent so I screw up my courage to place my grievances to every body in order to get redress. So I want to let my matter informed all the Indian and others. I wrote my matter to our local P.S., Local Councilor, all M.P., M.L.A., Minister in W.B. and Other States, C.M. in W.B., CBI Department, CID Department, S.P. and Dy.S.P.(N.) 24 Parganas, DGP Bhupindar Singh, All the I.P.S. AND I.A.S. OFFICERS. Governor in W.B, and President in India. P.M. in India, P. ChidambaramUnion Minister of Home Affairs, National/International Human rights department, AAP KI KACHEHRI – KIRAN KE SAATH, Kolkata Police, and all police officers in W.B. informed Kolkata Commissioner of Police, Manager S.B.I.-Branch: 24B, Nimtala Ghat Street, Jorabagan, Kolkata- 700006, West Bengal, India‎, Bank Ph. No. 033 25308337. My nation, all of the news channels, and all press, Talking with some NGO’s: 1. Universal Right and Duty for Human to Abide URDHA, 2. Human Right Commission’s Mr. Ujjal Paul and Mr. Shibaji Dasgupta. 3. Bharat Bachao Sangathan BBS. 4. Forum for Social Justice and Development FSJD. 5. Ajjtak News Channel’s Miss Menogya. and many more, (anybody can’t help me/ fight for truth /don’t take proper investigation/do not take any action/don’t take any type of query/ Still Now, many department told does not comes under the purview of our department. Then my question is where I go now? I can’t get Judgment still now. I see they all are in sound asleep. The reason is best known to them.
    I hope you would care to me, your prompt action shall be highly appreciated and deserves to be lauded.

    With kindest regards,
    Dipak Kumar Adhikari
    Tegharia(Dhali Para),NandanKanan. P.S.: Baguiati.
    P.O.: Hatiara. Dist.: North24Parganas.
    Kolkata-700059 Email: dipakadhikari_59@yahoo.com
    W.B. India. PH. 9874389190

  2. Dear sir
    This is very good judgment.It can help to who are the victim of fals and fabricated case……..can u give me where this has reported i mean which journal with page no.
    thanks u.
    my no is 09453944579

  3. Harish,

    Yes, very good judgment.
    Also refer the same in the following link

    Sanju

Leave a Comment

Your email address will not be published. Required fields are marked *