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Radhika Garg vs Ritwik Garg on 6 December, 2017

1 W.P. No.1848/17 2587/17

HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)

W.P. No.1848/2017

Ritwik Garg S/o Shri Ramesh Garg …. Petitioner

Vs.

Smt. Radhika Garg W/o Ritwik Garg …. Respondent
———————————————————————————-
W.P. No.2587/2017

Smt. Radhika Garg W/o Ritwik Garg …. Petitioner

Vs.

Ritwik Garg S/o Shri Ramesh Garg …. Respondent

————————————————————————————
Shri Prateek Maheshwari, learned counsel for the
petitioner in W.P. No.1848/2017 and for the respondent in W.P.
No.2587/2017.
Shri A.M. Mathur, learned senior counsel with Shri A.S.
Rathore, learned counsel for the petitioner in W.P. No.2587/17
and for the respondent in W.P. No.1848/2017.
————————————————————————————
Whether approved for reporting :

ORDER

(Passed on 6/12/2017)

1/ Both these writ petitions are heard and decided by
this common order since these writ petitions are directed
against the common order passed by the trial Court.

2/ The W.P. No.1848/2017 is at the instance of
husband, whereas W.P. No.2587/17 is at the instance of the
wife. For convenience parties are referred to as husband and
2 W.P. No.1848/17 2587/17

wife in this order.

3/ Both these writ petitions have been filed by the
parties challenging the order of the trial Court dated
1.12.2016, whereby the respective applications of the parties
for making a complaint against each other under Section 340
of the Cr.P.C. have been rejected.

4/ The record reflects that at the instance of the
husband the case for divorce under Section 13(1)(1-a)(1-b)

(iii) read with Section 13-A of the Hindu Marriage Act read
with Section 7 of the Family Court Act, 1984 is pending
before the Family Court, Indore wherein an application for
interim maintenance under Section 24 of the Hindu Marriage
Act, 1955 was filed by the wife and in the course of the
proceedings both the parties had filed the affidavits disclosing
their financial status. Thereafter both the parties had filed the
applications under Section 340 of the Cr.P.C. making
allegations against each other. The allegation of the husband
in the application under Section 340 Cr.P.C. is that the wife
during the relevant time was employed in Sahara India and
Sahara World Wide Hospitality Ltd., but she had suppressed
this fact and filed the affidavit dated 18.10.2013, 19.4.2014,
5.5.2015 and 15.7.2015 disclosing that she is unemployed
and had no source of income, whereas she was having
sufficient income. The allegation of the wife in the application
under Section 340 of the Cr.P.C. is that the husband had filed
the affidavit disclosing incorrect income.

5/ The trial Court by the impugned order has rejected
both the applications.

3 W.P. No.1848/17 2587/17

6/ Learned counsel appearing for the husband
(petitioner in W.P. No.1848/2017) submits that since the wife
has given incorrect affidavit falsely stating that she was
unemployed and having no source of income wheres there
are number of documents on record to show that she was
employed during the relevant time and was having income
and was also filing income tax return, therefore, the complaint
under Section 340 Cr.P.C. should be filed. He has submitted
that the trial Court had not examined the matter in the proper
perspective.

7/ As against this, learned counsel for the wife
submits that the scope of Section 340 of the Cr.P.C. is
different and unless the court forms an opinion that it is
expedient in the interest of justice to take action, there is no
requirement to take action under Section 340 Cr.P.C. He has
submitted that the power is discretionary and it has not been
abused by the trial Court while dismissing the application of
the husband but order in respect of rejection of wife’s
application is bad in law.

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

9/ Section 340 of the Cr.P.C. provides as under:-

“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
4 W.P. No.1848/17 2587/17

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 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 given evidence
before such Magistrate.

(2) ********************************
(3) ********************************

10/ The core of the aforesaid provision is forming of
opinion by the court “that it is expedient in the interest of
justice” to make an enquiry for the referred offence and such
an offence must appear to have been committed in or in
relation to the proceedings of that court or as the case may
be, that too in respect of a document produced or given in
evidence in the proceedings of that court. The preliminary
enquriy is optional. Hence the making of complaint under this
provision is not a matter of routine but the aforesaid
conditions are required to be satisfied beforehand. In the
process of examining an application under Section 340 the
court is also required to see the effect or impact of such
commission of offence upon administration of justice,
therefore, such a discretion is to be exercised only in the
interest of the administration of justice and therefore, this
power is to be exercised with utmost care and caution.

5 W.P. No.1848/17 2587/17

11/ The Supreme Court in the matter of Pritish Vs.
State of Maharashtra and others reported in (2002) 1 SCC
253 while considering the scope of Section 340 of the Cr.P.C.
has held as under:-

“Reading of the sub-section makes it clear
that the hub of this provision is formation of an
opinion by the court (before which proceedings
were to be held) that it is expedient in the interest
of justice that an inquiry should be made into an
offence which appears to have been committed. In
order to form such opinion the court is empowered
to hold a preliminary inquiry. It is not peremptory
that such preliminary inquiry should be held. Even
without such preliminary inquiry the court can form
such an opinion when it appears to the court that
an offence has been committed in relation to a
proceeding in that court. It is important to notice
that even when the court forms such an opinion it
is not mandatory that the court should make a
complaint. This sub-section has conferred a power
on the court to do so. It does not mean that the
court should, as a matter of course, make a
complaint. But once the court decides to do so,
then the court should make a finding to the effect
that on the fact situation it is expedient in the
interest of justice that the offence should further be
probed into. If the court finds it necessary to
conduct a preliminary inquiry to reach such a
finding it is always open to the court to do so,
though absence of any such preliminary inquiry
would not vitiate a finding reached by the court
regarding its opinion. It should again be
remembered that the preliminary inquiry
contemplated in the sub-section is not for finding
whether any particular person is guilty or not. Far
from that, the purpose of preliminary inquiry, even
if the court opts to conduct it, is only to decide
whether it is expedient in the interest of justice to
inquire into the offence which appears to have
been committed.”

6 W.P. No.1848/17 2587/17

12/ In the subsequent judgment in the matter of Iqbal
Singh Marwah and another Vs. Meenakshi Marwah and
another reported in 2005(2) G.L.H. 413 the Supreme Court
has held as under:-

“In view of the language used in Section 340
Cr.P.C. 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 interest 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. 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 remedyless. Any interpretation which
leads to a situation where a victim of a crime is
rendered remedyless, has to be discarded.”

7 W.P. No.1848/17 2587/17

13/ The Division Bench of this Court in the matter of
Jagdish Vs. Ashok Kumar Gureja reported in 2007(4)
MPLJ 229 has taken note of the earlier judgment on the point
and has held as under:-

“5. In the case of Chajoo Ram v. Radhey Shyam and
Anr., reported in AIR 1971 SC 1367, the Supreme
Court has held that indiscriminate prosecutions
under Section 193, Indian Penal Code resulting in
failure are likely to defeat the very object of such
prosecution. It has been laid down that 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
reasonable 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 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.

“6. In the case of K. Karunakaran v. T.V.

Eachara Warrier and Anr., reported in (1978) 1 SCC
18, the Supreme Court has considered two
questions for taking action under section 340. The
two preconditions 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, Indian Penal Code. It was further held
that when the complaint is filed it will be for the
prosecution to establish all the ingredients of the
offence under Section 193, Indian Penal Code
against the appellant and the decision will be based
only on the evidence and the materials produced
before the criminal court during the trial and the
8 W.P. No.1848/17 2587/17

conclusion of the Court will be independent of
opinions formed by the High Court in the habeas
corpus proceeding and also in the enquiry under
section 340(1), Criminal Procedure Code. It was
further held that the fact that a prima facie case has
been made out for laying a complaint does not mean
that the charge has been established against a
person beyond reasonable doubt. That Section
contemplates that making out of a false statement is
not enough and that it is to be made intentionally.

7. In the case of Chandrapal Singh and Ors. v.
Maharaj Singh and Anr, reported in AIR 1982 SC
1238 the Court has considered this aspect of the
matter that when it is alleged in the affidavit that a
false statement has been made in a declaration
which is receivable as evidence in any Court of
Justice or before any public servant or other person,
the statement alleged to be false has to be set out
and its alleged falsity with reference to the truth
found in some document has to be referred to
pointing out that the two situations cannot co-exist,
both being attributable to the same person, and,
therefore, one to his knowledge must be false. Rival
contentions set out in affidavits accepted or rejected
by courts with reference to onus probandi do not
furnish foundation for a charge under section 199,
Indian Penal Code. It was further considered that
acceptance or rejection of evidence by itself is not a
sufficient yardstick to dub the one rejected as false.
Falsity can be alleged when truth stands out
glaringly and to the knowledge of the person who is
making the false statement. Day in and day out in
courts averments made by one set of witnesses are
accepted and the counter averments are rejected. If
in all such cases complaints under section 199,
I.P.C. are to be filed not only there will open up
floodgates of litigation but it would unquestionably be
an abuse of the process of the Court. Though in this
case Division Bench held that affidavit sworn was
false to his knowledge.

8. In the case of K.T.M.S. Mohd. and Anr. v.
Union of India, reported in AIR 1992 SC 1831 the
Apex Court has also held that it is incumbent that the
power given by section 340 of the Code should be
9 W.P. No.1848/17 2587/17

used with utmost care and after due consideration.
Such a prosecution for perjury should be taken only
if it is expedient in the interest of justice.

9. In the case of M. S. Ahlawat v. State of
Haryana and Anr., reported in (2000) 1 SCC 278, the
Apex Court has held that it is settled law that every
incorrect or false statement does not make it
incumbent upon the Court to order prosecution, but
requires the Court to exercise judicial discretion to
order prosecution only in the larger interest of the
administration of the justice.

10. In case of Suo Motu Proceedings against
R. Karuppan, reported in (2001) 5 SCC 289,
Supreme Court has observed that unscrupulous
litigants are found daily resorting to utter blatant
falsehood in the Courts which has, to some extent,
resulted in polluting the judicial system. It is a fact,
though unfortunate, that a general impression is
created that most of the witnesses coming in the
courts despite taking oath make false statements to
suit the interests of the parties calling them. Effective
and stern action is required to be taken for
preventing the evil of perjury, concededly let loose
by vested interest and professional litigants. The
mere existence of the penal provisions to deal with
perjury would be a cruel joke with the society unless
the courts stop to take an evasive recourse despite
proof of the commission of the offence under
Chapter XI of the Indian Penal code. If the system is
to survive, effective action is the need of the time.

12. In the light of the aforesaid observations of
the Supreme Court in the various decisions, we have
considered the facts of the case in hand. In fact, it
would have been expedient in the interest of justice
to the learned Division Bench when the Division
Bench was passing the order in L.P.A.No.1/93 on
28.2.2002. On that day the Court was not of the
opinion that any order should be passed for perjury
but Court has dismissed not only all pending I.A.s
but the M.C.P. as well as the appeal. We have also
found that the applicant, who has filed this
application after belated delay of four and a half
years, has also not taken care to protect his rights.
He has not assigned any reason in the application as
10 W.P. No.1848/17 2587/17

to why he has not filed such an application during
last four and a half years. Though there is no
limitation for prosecuting a person for perjury, but
certainly, while forming an opinion by the Court, the
Court has to consider the dictum of the law and the
wisdom of the legislature that it is expedient in the
interest of justice that an inquiry should be made into
any offence.”

14/ Having regard to the aforesaid provision of law, it
is clear that when an application under Section 340 Cr.P.C. is
filed, the trial Court is required to examine if on the basis of
the available material a prima facie case for making a
complaint is made out and is also required to see if in its
opinion it is expedient in the interest of justice that inquiry
should be made into an offence referred to in Section 195(1)

(b). The necessity of action will arise if the offence appears
to have been committed in or in relation to the proceedings of
that court and that too in respect of a document produced or
given in evidence in a proceedings in that court.

15/ The impugned order reveals that the trial Court
has rejected the application solely on the ground that in the
case no opinion has been given by the court about producing
false evidence or facts, nor any inquiry has been made and
finding has been recorded. The trial Court has rejected the
application mentioning that without the opinion of the court on
the basis of the documents, the action under Section 340
Cr.P.C. cannot be taken, but while doing so trial Court has
failed to appreciate that it is the Court concerned where
application is filed, which has to form the opinion one way or
the other in the light of relevant parameters given in the
11 W.P. No.1848/17 2587/17

Section itself.

16/ The impugned order passed by the trial Court
reveals that the trial Court has failed to consider the scope
and requirement of Section 340 and has rejected the
application without forming any opinion in either way.

17/ Hence, the impugned order passed by the trial
Court cannot be sustained and is hereby set aside with a
direction to the trial Court to decide the applications afresh, in
accordance with law.

18/ Signed order be kept in the file of W.P.
No.1848/2017 and a copy whereof be placed in the file of
connected W.P. No.2587/2017.

(PRAKASH SHRIVASTAVA)
Judge
Trilok.

Trilok
Digitally signed by Trilok
Singh Savner
DN: cIN, oHigh Court of
Madhya Pradesh,
ouAdministration,

Singh
postalCode452001,
stMadhya Pradesh,
2.5.4.205e17c79b9e2cc6e5
f119cb23d5c02e921be96a00

Savner
9cd5a4db8c43907729e8e93
c, cnTrilok Singh Savner
Date: 2017.12.13 16:45:02
+05’30’

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