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Jayendra Sahu vs State Of Chhattisgarh 2 … on 21 October, 2019

Page No.1

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved for Order on : 23.09.2019

Order Passed on : 21/10/2019

W.P.(Cr.) No. 375 of 2019

Jayendra Sahu, S/o. Shri Dhaniram Sahu, Aged About 38 Years,
Occupation Private Job, Address C1- 807, Royal Castle Society, In
Front of Anand Memorial Hospital, Near Dange Chowk, Thergaon,
Pune- 411033, Phone 7507999250, Email [email protected],
District : Pune, Maharashtra

—- Petitioner

Versus

1. State of Chhattisgarh, Through : District Magistrate Bilaspur
Chhattisgarh.

2. Family Court, Bilaspur, District Bilaspur Chhattisgarh.

3. Mamta Sahu, W/o. Jayendra Sahu, aged About 34 years, Q.No.
B/153, Ujjawal Nagar, NTPC Township Sipat, Bilaspur
Chhattisgarh, 495555, Phone 9425281148, 9406297260.

4. Saumya Sahu, D/o. Jayendra Sahu, Aged About 6 Years, Q.No.
B/153, Ujjawal Nagar, NTPC Township Sipat, Bilaspur ,
Chhattisgarh, 495555, Phone 9425281148, 9406297260.

—–Respondents

For Petitioner : Mr. Jayendra Sahu, Petitioner in person.
For Respondent/State : Mr. Ghanshyam Patel, G.A.
For Respondents No. 3 4 : Mr. Achyut Tiwari, Advocate
Page No.2

Hon’ble Shri Justice Rajendra Chandra Singh Samant

C A V ORDER

21/10/2019.

1. This petition has been brought under SectionArticle 226 of the

Constitution of India praying for issuance of writ of certiorari for

quashing the order dated 08.04.2019 of Family Court, passed in

M.J.C. No.274 of 2016, issuance of writ of mandamus, for

direction to the Family Court, Bilaspur to initiate proceeding under

Section 340 and Section195 of Cr.P.C and also for issuance of

mandamus directing the Family Court, Bilaspur to allow the

documents and electronic evidence, which may be produced by

the petitioner.

2. Respondent No.3 and 4 Mamta Sahu and Saumya Sahu Sahu

have filed a petition under Section 125 of Cr.P.C. before the

Family Court, Bilaspur, which has been registered as M.J.C.

No.329 of 2015. At the stage of evidence of the parties, these

respondents have filed affidavits before the Court below under

Order 18 Rule 4 of C.P.C. to be read as their examination-in-

chief. The petitioner has assailed the contents of the affidavit on

the ground that the witnesses have made false statement before

the Court and the petitioner has evidence in his possession to

disprove the statement given by the witnesses. On that basis an

application was filed referring to Section 340 and Section195 of Cr.P.C.

praying that order be passed for registration of offence against

the private respondents. The Court below has considered on the
Page No.3

application and passed the impugned order dated 08.04.2019 by

dismissing the application filed by the petitioner.

3. It is submitted by the petitioner, who is appearing in person

before this Court, that affidavit filed by the respondent No.3-

Mamta Sahu, Ramavtar Sahu and their statement in cross-

examination recorded before the Family Court very clearly

establishes the offence of perjury has been committed in this

case. The petitioner in person has demonstrated by referring to

the evidence, which has been recorded before the Court below

and also referring to the other evidence, which he intends to

produce before the Court below that the offence of perjury has

been committed. It is also submitted that the petitioner has in his

possession recording of telephone calls made which may be

produced before the Court below if required. The details of these

reference need not to be mentioned in this order as that is still

subject for consideration by the trial Court itself. On this basis,

prayer has been made that relief be granted as prayed for.

4. The petitioner has also placed reliance on the judgment of

Supreme Court in case of Perumal Vs. Janki, reported in (2014)

5 SCC 377, Sunny Bhumbla Vs. Shashi, in Cr.A. No.197/SB

2010, decided on 25.01.2010, judgment of Allahabad High Court

(Lucknow Bench), in case of Syed Nazim Hussain Vs. The

Additional Principal Judge, Family Court and another, passed

in Writ Petition (M/S) 56/2002 decided on 09.01.2003 and
Page No.4

judgment of Kerala High Court in case of Santhosh Madhavan

@ Swami Amritha Chaithanya Vs. State, represented by

Public Prosecutor, High Court of Kerala, Ernakulam, passed

in CRL.A. No.1599/2009 (D), decided on 19.12.2013, in these

cases, the Courts have held that grounds were present for

proceeding under Section 340 of Cr.P.C. With respect to the

admissibility of electronic evidence, the petitioner has placed

reliance on the judgment of Supreme Court in case of Shafhi

Mohammad Vs. The State of Himachal Pradesh, passed in

SLP (Crl) 2302/2011, decided on 30.01.2018, in which it has

been held that the electronic evidence can be produced subject

to procedural requirement under Section 65 -B of the Evidence

Act by a person, who is in position to produce such certificate

being in control of the said device, therefore, the petitioner, who

has made the recording from his own mobile phones, he is in

position to produce such evidence.

5. The submission made by the petitioner in person have been

opposed by the State counsel appearing for respondent No.1 and

it is submitted that the documents that have been filed along with

the petition shows that the petitioner has least regard for the

judicial system and Judges, because of which he has made

derogatory and defamatory remarks against them, therefore, he

should be proceeded for Contempt of Court. Replying to the

arguments regarding audio video recordings made by the

petitioner, it is submitted that the petitioner has made video or
Page No.5

audio recording of the Court proceedings without the permission

of the Court, therefore, he is liable to be penalized for the same.

6. Counsel appearing for the private respondents submits that the

petition has been wrongly brought under SectionArticle 226 of the

Constitution of India, whereas, the petitioner has remedy of filing

revision petition under Section 397 of Cr.P.C., therefore, the order

made has become final without being challenged by the petitioner

under the provision in Statute. It is submitted that the petitioner

has shown great disregard to the judicial system and procedural

law, therefore, there is need for taking strict action against him.

Recording that he has made are not permissible in evidence. It is

submitted that since the case is pending, therefore, any

application brought under Section 340 of Cr.P.C. praying for

prosecution of perjury is premature. Therefore, it is prayed that

the petition be dismissed.

7. In reply, it is submitted by the petitioner in person that recording

on mobile phone has been made for the reasons that it is

permissible according to the directions of Supreme Court in

Shafhi Mohammad case (supra). Therefore, it is prayed that

petition be allowed.

8. I have heard the learned counsel for the parties and perused the

documents placed on record.

9. Section 340 of Cr.P.C. is reproduced as under :-

Page No.6

“340. Procedure in cases mentioned in Sectionsection 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
Sectionsection 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 Sectionsection 195.

(3) A complaint made under this section shall be
signed,-

Page No.7

(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.

10. Key word in this Section are this that, “when the Court is of the

opinion that it is expedient in the interests of justice that any

inquiry should be made into any offence referred to in Clause (b)

of sub- section (1) of Sectionsection 195, which appears to have been

committed.”

11. Firstly, the Court has to form an opinion and make up its mind

that it is expedient in the interest of justice that any inquiry should

be made. For making up of mind by the Court, the first thing that

is essential and necessary is this that the substance and material

should be present and available before the Court in the record of

the proceeding. In the present case, the stage of recording of

applicant evidence is in progress for which the affidavits for

examination-in-chief have been filed by the private respondents

and the petitioner has been given the opportunity to cross-

examination the same. So far the petitioner, who is non-applicant

in that proceeding has not produced any evidence and he has

before proceeding to adduce evidence, filed an application
Page No.8

praying for action under Section 340 of Cr.P.C. against the private

respondents.

12. The Family Court has observed in its order dated 08.04.2019 that

on perusal of the record, it appears that the petitioner has

claimed that affidavits filed by the respondents are false for which

before coming to any conclusion it is necessary that the evidence

should be produced by both the parties and it is premature stage

to conclude that the statements in affidavits filed by the private

respondents are false.

13. It is evident from the submission made from both the sides that

the affidavits of some of the witnesses of respondent side have

been filed and they have been cross-examined. After completion

of respondent/applicant’s evidence, the petitioner as non-

applicant will himself have opportunity to present his evidence

before the Court to rebut and disprove the statement made by the

applicants side and it is at that stage, he has liberty to apply to

the Court for presenting recorded statement etc., which are in his

possession subject to certification as it required under Section

65-B of the Evidence Act and as per the direction given in case of

Shafhi Mohammad (supra). Therefore, it is found that the

petitioner has brought this application under Section 340 of

Cr.P.C. at a very initial and premature stage. The evidence that

has been produced by the applicant side so far is record of the

Court proceeding, whereas, the material and substance on which
Page No.9

the petitioner is relying are not part of the record of the Court

below. The substance and the material on which the petitioner

relies if produced before the Court shall become the record of

Court proceeding and on that basis the Court holding inquiry shall

be in a position to make up mind and draw conclusion or form an

opinion to find whether it is expedient in the interest of justice that

an enquiry may be made as it is mentioned in Section 340 Sub-

section (1) of SectionCr.P.C.. Therefore, I do not find any reason to

disagree with the opinion formed by the Court below.

14. In K.T. M.S. Mohd. Vs. Union of India, reported in (1992) 3 SCC

178, the Supreme Court has made observations in paragraph 34,

35 and 36, which reads as under :-

“34. We think it is not necessary to recapitulate
and recite all the decisions on this legal aspect. But
suffice to say that the core of all the decisions of
this Court is to the effect that the voluntary nature of
any statement made either before the Custom
Authorities or the officers of Enforcement under the
relevant provisions of the respective Acts is a sine
quo non to act on it for any purpose and if the
statement appears to have been obtained by any
inducement, threat, coercion or by any improper
means that statement must be rejected brevi manu.

At the same time, it is to be noted that merely
because a statement is retracted, it cannot be
recorded as involuntary or unlawfully obtained. It is
only for the maker of the statement who alleges
inducement, threat, promise etc. to establish that
Page No.10

such improper means has been adopted. However,
even if the maker of the statement fails to establish
his allegations of inducement, threat etc. against the
officer who recorded the statement, the authority
while acting on the inculpatory statement of the
maker is not completely relieved of his obligations in
at least subjectively applying its mind to the
subsequent retraction to hold that the inculpatory
statement was not extorted. It thus boils down that
the authority or any Court intending to act upon the
inculpatory statement as a voluntary one should
apply its mind to the retraction and reject the same
in writing. It is only on this principle of law, this Court
in several decisions has ruled that even in passing
a detention order on the basis of an inculpatory
statement of a detenu who has violated the
provisions of the FERA or the SectionCustoms Act etc. the
detaining authority should consider the subsequent
retraction and record its opinion before accepting
the inculpatory statement lest the order will be
vitiated. Reference may be made to a decision of
the full Bench of the Madras High Court in SectionRoshan
Beevi V. Joint Secretary to the Govt. of Tamil Nadu,
Public Deptt. [1983] Law weekly (Crl.) 289 [1984]
15 ELT 289 to which one of us (S. Ratnavel
Pandian, J.) was a party.

35. In this context, reference may be made to
Section 340 of the Code of Criminal Procedure
under Chapter XXVI under the heading “Provisions
as to offences affecting the administration of
justice”. This section confers an inherent power on
a Court to make a complaint in respect of an
offence committed in or in relation to a proceeding
Page No.11

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, if that Court is of opinion
that it is expedient in the interest of justice that an
enquiry should be made into an offence referred to
in clause (b) of sub-section (1) of Section 195 and
authorises such Court to hold preliminary enquiry as
it thinks necessary and then make a complaint
thereof in writing after recording a finding to that
effect as contemplated under sub-section (1) of
Secton 340. The words “in or in relation to a
proceeding in that Court” show that the Court which
can take action under this section is only the Court
operating within the definition of Section 195 (3)
before which or in relation to whose proceeding the
offence has been committed. There is a word of
caution inbuilt in that provision itself that the action
to be taken should be expedient in the interest of
justice. Therefore, it is incumbent that the power
given by this Section 340 of the Code should be
used with utmost care and after due consideration.
The scope of Section 340 (1) which corresponds to
Section 476 (1) of the old Code was examined by
this Court in K. Kanunakaran Vs. T.V. Eachara
Warrier and Another, [1978] 1 SCC 18 and in that
decision, it has observed:

“At an enquiry held by the Court under
Section 340 (1) of SectionCr.P.C., irrespective of the
result of the main case, the only question is
whether a prima facie case is made out
which, if unrebutted, may have a reasonable
likelihood to establish the specified offence
and whether it is also expedient in the
Page No.12

interest of justice to take such action.

…………….The two pre-conditions are
that the materials produced before the High
Court make out a prima facie case for a
complaint and secondly that it is expedient
in the interest of justice to permit the
prosecution under Section 193 IPC.”

36. The above provisions of Section 340 of the
Code of Criminal procedure are alluded only for the
purpose of showing that necessary care and
caution are to be taken before initiating a criminal
proceeding for perjury against the deponent of
contradictory statement in a judicial proceeding.”

15. In case of Amarsang Nathaji Vs. Hardik Harshadbhai Patel

Others, reported in (2017) 1 SCC 113, the Supreme Court has

observed in Para – 6 7, which is as under :-

“6. The mere fact that a person has made a
contradictory statement in a judicial proceeding is
not by itself always sufficient to justify a prosecution
under Sections 199 and Section200 of the Penal Code,
1860 (45 of 1860) (hereinafter referred to as “the
SectionI.P.C.”); but it must be shown that the defendant
has intentionally given a false statement at any
stage of the judicial proceedings or fabricated false
evidence for the purpose of using the same at any
stage of the judicial proceedings. Even after the
above position has emerged also, still the court has
to form an opinion that it is expedient in the
interests of justice to initiate an inquiry into the
offences of false evidence and offences against
Page No.13

public justice and more specifically referred to in
Section 340 (1) of the SectionCr.P.C., having regard to the
overall factual matrix as well as the probable
consequences of such a prosecution. (See
K.T.M.S. Mohd. and Another Vs. Union of India).
The court must be satisfied that such an inquiry is
required in the interests of justice and appropriate
in the facts of the case.

7. In the process of formation of opinion by the
court that it is expedient in the interests of justice
that an inquiry should be made into, the
requirement should only be to have a prima facie
satisfaction of the offence which appears to have
been committed. It is open to the court to hold a
preliminary inquiry though it is not mandatory. In
case, the court is otherwise in a position to form
such an opinion, that it appears to the court that an
offence as referred to under Section 340 of the
Cr.P.C. has been committed, the court may
dispense with the preliminary inquiry. Even after
forming an opinion as to the offence which appears
to have been committed also, it is not mandatory
that a complaint should be filed as a matter of
course. (SectionSee Pritish v. State of Maharashtra and
Others)”

16. Therefore, much emphasis and importance has been given to the

initial part of Section 340 Sub-Section (1) of SectionCr.P.C., when a

Court can form an opinion, as it has been discussed herein

above, that it was too early stage for filing application under

Section 340 of Cr.P.C. and the reasons for the same also have
Page No.14

been discussed herein above. The statement of any witnesses

which is part of Court record can be contradicted or disproved

only on the basis of the recorded evidence of other party, which is

the part of the Court proceeding. This goes to show that

opportunity of filing repeat application under Section 340 of

Cr.P.C. is not taken away from the petitioner and he is at liberty to

file such repeat application when circumstances are present and

the Court can form an opinion as it is required under Section 340

(1) of SectionCr.P.C. to consider on the prayer made.

17. Hence after over all consideration, I am of this opinion that the

petition brought by the petitioner is without any substance at

present as well as premature and also that the petitioner has

other remedy available to file a revision petition against the order

passed by the Court below, hence for these reasons, the petition

is dismissed.

1.

2. Sd/-

(Rajendra Chandra Singh Samant)
Judge
Balram

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