IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM:THE HONOURABLE MR.JUSTICE S.PALANIVELU
Criminal Revision Case No.1262 of 2012
P. Murugesan .. Petitioner
B. Gokila .. Respondents
PRAYER: Criminal Revision case filed under Section 397 & 401 of the Code of Criminal Procedure, to call for the records in M.C.No.22 of 2007 on the file of the learned Judicial Magistrate, Mettupalayam, Coimbatore and set aside the order passed in Crl.M.P.No.4334 of 2012 on 24.08.2012.
For Petitioner : Mr.R. Murugesan
Party in person
For Respondent : Ms. Kavitha
M/s PVS Giridhar Associates
The following are the allegations contained in the Protest Petition filed by the petitioner:
The Court below has directed the Inspector of Police, Sirumugai Police Station, to investigate the private complaint filed by the petitioner. But the police did not file any report even though the petitioner sent two letters dated 19.6.2012 and 26.07.2012 which were received on 26.6.2012 and 28.7.2012 alongwith the above said private complaint copy and marriage registration certificate of respondent. The respondent has re-married on 25.02.2010 but on 11.11.2011 during the cross examination she told that she has not remarried. Hence, the Court may be pleased to direct the police to re-open and re-investigagte the matter or direct the CBCID to investigate the complaint and file report.
2. Judicial Magistrate, recorded sworn statement of the petitioner and dismissed the petition stating that on going through the records and sworn statement, the only offence made out is under Section 193 IPC., that according to Section 195 Cr.P.C. this petitioner has no locus standi to file this complaint under Section 193 I.P.C. and hence the petition is not maintainable.
3. The petitioner/party-in-person would contend that inasmuch as the Court below has found that the respondent has committed offence u/s 193 I.P.C., even though it is of the view that the petitioner has no locus standi to lodge the complaint, there is no legal impediment for the Court below to prefer complaint against the respondent when adequate materials were available before the Court and without lodging complaint before the concerned Court, dismissing the petition is not sustainable.
4. Contending contra, the learned counsel appearing for the respondent Ms.Kavitha would submit that as per the finding rendered by the Court below, the petitioner has no locus standi to point out anything on the part of the respondent so as to make her accused, that by means of which he could not make any complaint and in this regard there is no legal infirmity found in the order passed by the Court below.
5. The petitioner says that the respondent wife was divorced and she re-married on 25.2.2010 in Arulmigu Subramaniaswamy Thirukkoil, Pachaimalai-Modachur, Erode District for which he has produced copy of the Marriage Certificate issued by the Executive Officer of the said Temple. He also adds that she is having a male child aged 1= years. Suppressing the fact, she is continuing the maintenance case. While she was examined in cross on 11.11.2011 in MC Case No.22/07 before the learned Judicial Magistrate, Mettupalayam, she has stated that she has not contacted second marriage. But when she was examined in the same court on 31.08.2012, she admitted that after divorce she contacted second marriage and her husband’s name is Arjunan, that after the said marriage she is having a male child aged 1 year 3 months. If it is so, while she deposed earlier on 11.11.2011 her child should have been aged 5 months. It is consciously admitted by her that the child was born out of the second marriage. Hence, it is manifest that she has given a false statement on 11.11.2011 as to her marriage that she has not married for the second time.
6. Significantly it is to note that she has made false statements while she was examined before the same Court in M.C.No.22 of 2007, i.e., Judicial Magistrate, Mettupalayam. Taking advantage of this situation, the petitioner has come forward with this claim.
7. The petitioner relies upon an unreported order of mine in M.P.SR.No.39639 of 2011 in Crl.O.P.No.18268 of 2011 dated 3.4.2012 wherein I have followed the decision of the Supreme Court reported in 2003 (1) Crimes 235(SC)=AIR 2003 SUPREME COURT 541= (2003) SCC 76 [N.Natarajan v. B.K.Subba Rao] wherein Their Lordships have observed as follows –
9……. In ordinary crimes not adverted to under
Section 195 CrPC, if in respect of any offence, law
can be set into motion by any citizen of this country,
we fail to see how any citizen of this country cannot
approach even under Section 340 CrPC. For that matter,
the wordings of Section 340 CrPC are significant. The
Court will have to act in the interest of justice on a
complaint or otherwise. Assuming that the complaint
may have to be made at the instance of a party having
an interest in the matter, still the court can take
action in the matter otherwise than on a complaint,
that is, when it has received information as to a
crime having been committed covered by the said
provision. Therefore, it is wholly unnecessary to
examine this aspect of the matter. We proceed on the
basis that the respondent has locus standi to present
the complaint before the Designated Judge.”
8. In the said case, I have followed the principles laid down by the Honourable Supreme Court and observed that in view of the above ratio, it is the contention of the learned counsel for the petitioner that the petitioner has got locus standi to file the application.
9. In the above stated case, I have also followed a decision of this Court in 1908 MLJ VOL XIX [Aiyakannu Pillai v. Emperor] wherein it is held that a complaint can be presented at any time subject to the law of limitation, an order under Section 476 (I) can be made at any time (the old provision for Section 340 Cr.P.C. is Section 476). In the said case I reached a conclusion that the petitioner in that case has locus standi to file the application.
10. The petitioner also placed reliance upon N.Natarajan’s case (supra) wherein Their Lordships have held as follows:
“It is well settled that in criminal law a complaint
can be lodged by anyone who has become aware of a
crime having been committed and thereby set the law
into motion. In respect of offences adverted to in
Section 195 CrPC there is a restriction that the same
cannot be entertained unless a complaint is made by a
court because the offence is stated to have been
committed in relation to the proceedings in that
court. Section 340 CrPC is invoked to get over the bar
imposed under Section 195 CrPC. In ordinary crimes not
adverted to under Section 195 CrPC, if in respect of
any offence, law can be set into motion by any citizen
of this country, we fail to see how any citizen of
this country cannot approach even under Section 340
CrPC. For that matter, the wording of Section 340 CrPC
is significant. The court will have to act in the
interest of justice on a complaint or otherwise.
Assuming that the complaint may have to be made at the
instance of a party having an interest in the matter,
still the court can take action in the matter
otherwise than on a complaint, that is, when it has
received information as to a crime having been
committed, covered by the said provision.”
11. He also cited another latest Supreme Court judgment on this point reported in 2012 (1) CTC 184 [Abdul Rehman & Others v. K.M.Anees-ul-Haq] wherein Their Lordships have thoroughly analysed all the relevant judgments and directed to transfer the criminal case filed by the husband to the Court of competent jurisdiction.
12. The learned counsel for the respondent cited a decision of Supreme Court reported in AIR 1978 SC 1753 [Dr. S.P.Kohli v. The High Court Punjab and Haryana] wherein Their Lordships have held as under:
“Further, it is well settled that prosecution for
perjury should be sanctioned by Courts only in those
cases where it appears to be deliberate and conscious
and the conviction is reasonably probable or likely.
It is also well recognized that there must be a prima
facie of deliberate falsehood on a matter of substance
and the Court should be satisfied that there is
reasonable foundation for the charge.”
13. In AIR 1971 SC 1367 [Chajoo Ram v. Radhey Shyam and another] it is held thus:
“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. ”
14. The learned counsel for the respondent cited a portion of the decision in N.Natarajan’s case (supra) which is as follows:
“Private complaint indulging in vexatious litigation
based on hald-baked knowledge of law wasting time of
court should be restrained in the interest of
administration of justice from filing similar
applications. If still he persists, such
application/complaint should be dismissed at limine
and appropriate proceedings be initiated against him.”
15. In MANU/PH/0330/1985 [Jaswinder Singh v. Smt. Paramjit Kaur] it is held thus:
“4. As is plain from the aforesaid stances adopted by
the parties, they are out for personal vendetta. It is
a settled principle of law that courts never become
tools at the hands of the parties to satisfy private
vendetta or to take up cudgels on behalf of one party
and punish the other. The primary object to take
proceedings under Section 340 of the Code of Criminal
Procedure, in instituting a complaint for giving false
evidence, is to curb the evil of perjury and to keep
the flow of proceedings in courts unsullied and pure.
It is only in a rare case, when the Court comes to the
conclusion that if the complaint is filed conviction
is more or less a certainty, that it chooses to become
a complainant. In such like contentious issues, when
the wife can again indulge in proving that the husband
was wrong and she was right, it is not expedient for
this Court to enter into the fact and become a
complainant at the behest of the husband-petitioner.
Thus, I am of the considered view that it is not
expedient to pursue the matter any further at the
instance of the parties.”
16. Armed with the above said decisions, the learned counsel for the respondent would submit that it is not for the petitioner to set the law in motion as far as the untenable claim is concerned and as per the decision of the Punjab and Haryana High Court [Jaswinder Singh’s case] the Courts never become tools at the hands of the parties to satisfy private vendetta to take up cudgels on behalf of one party and punish the other. She also states that as far as the contention of the petitioner is concerned, it is only to harass the respondent.
17. From the evidence of the respondent is has come to light that before the same Court she has taken different stands as to her marriage and the finding of the Court below that only offence made out against the first respondent is under section 193 I.P.C.is appropriate. Hence, as per the dictum laid down by the Honourable Supreme Court in N.Natarajan’s case it is incumbent upon the Magistrate to proceed with Section 340 Cr.P.C.as per the procedure laid down in the provision. In such a view of the matter, this Court is of the view that the learned Judicial Magistrate has to be directed to act in accordance with law as per Sections 195 and 340 Cr.P.C.
18. In fine, the revision is allowed directing the learned Judicial Magistrate, Mettupalayam to prefer complaint against the respondent and to act in accordance with Sections 195 and 340 Cr.P.C. The learned Judicial Magistrate is also directed to dispose of the Maintenance Case within one month from the date of receipt of copy of this Order.
The Judicial Magistrate