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Sanjeev Gupta vs State Of U.P. And 3 Others on 28 January, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on 18.12.2019

Delivered on 28.01.2020

Court No. – 42

Case :- APPLICATION U/S 482 No. – 13819 of 2019

Applicant :- Sanjeev Gupta

Opposite Party :- State Of U.P. And 3 Others

Counsel for Opposite Party :- G.A.,Nitin Gupta

Hon’ble Dinesh Pathak, J.

01. Heard Shri Sanjeev Gupta, applicant in person and Shri Nitin Gupta, learned counsel for respondents no. 2 to 4 and Shri Amit Sinha, learned A.G.A. appearing for the State.

02. By means of the present application filed under Section 482 Cr.P.C., the applicant has challenged the order dated 18.03.2019 passed by the 12th Additional District Sessions Judge, Ghaziabad in Criminal Appeal No. 114 of 2018 confirming the order dated 30.07.2018 passed by the Chief Judicial Magistrate VIIIth, Ghaziabad, rejecting the application dated 30.07.2018 filed under Section 340 Cr.P.C.

03. The factual matrix of the case is that the second marriage of the applicant was solemnized with Ritu on 01.07.2012 according to rituals of Arya Samaj but unfortunately the marriage did not prove successful due to several reasons. Ultimately, Ritu (wife of the applicant) lodged an F.I.R. dated 09.08.2013 (Ex. Ka-3) registered as Case Crime No. 331 of 2013 under Sections 498-A, 323, 377, 504 of I.P.C. and Section 3/4 Dowry Prohibition Act, P.S. Link Road, Ghaziabad.

04. Charge-sheet (Ex. Ka-6) was submitted against the applicant which led to registration of a Criminal Case No. 75 of 2016. Applicant was held guilty under Sections 498-A, 323 377 I.P.C. and Section 4 of the D.P. Act but was exonerated under Section 504 I.P.C. vide order dated 12.09.2018 passed by the Additional Chief Judicial Magistrate, Court No. 08, Ghaziabad.

05. Against the aforesaid order dated 12.09.2018, present applicant preferred an appeal, registered as Criminal Appeal No. 129 of 2018 and the same was partly allowed vide order dated 30.05.2019 passed by the Sessions Judge, Ghaziabad, exempting him under Section 4 of the Dowry Prohibition Act however, confirming the conviction under Sections 498-A, 323 and 377 I.P.C., and reducing the sentence of five years, as awarded under Section 377 I.P.C. by the trial court, to four years with rigorous imprisonment.

06. Meanwhile, the Applicant moved pendente lite application dated 30.07.2018 under Section 340 Cr.P.C. before the trial court after the evidence of parties was closed and the case was listed for final hearing, beseeching criminal action against PW-2 Shri Ashok Sabharwal (respondent no. 2 father of the victim), PW-3 Smt. Shashi Sabharwal (respondent no. 3 mother of the victim) and PW-4 Smt. Neha Sabharwal (respondent no. 4 Bhabhi of the victim), on the ground of perjury.

07. Aforesaid application was rejected on the same day vide order dated 30.07.2018 passed by A.C.J.M, Court No.8, Ghaziabad observing that the accused-applicant has deliberately filed this application, at the stage of argument, just to delay the court proceedings, therefore, no sufficient ground is made out.

08. Aforesaid order dated 30.07.2019 was affirmed in Criminal Appeal No.114 of 2018 vide order dated 18.03.2019 by the Additional Session Judge, Court No.12, Ghaziabad, on the ground that the accused has already been held guilty by the trial court, therefore, there is no question of false statements being made by the witnesses. It has also been observed that correctness of statements of witness on oath are subject matter of judicial examination and the accused has no right to allege it to be false. Being aggrieved and dissatisfy with the appellate order dated 18.03.2019, the present application under Section 482 Cr.P.C. is preferred with the prayer for quashing the orders, passed by the courts below.

09. Perusal of the order-sheet dated 27.11.2019 reveals that the applicant has refused to file rejoinder affidavit to the counter affidavit filed by the respondents.

10. I have carefully examined the submissions made by the learned counsel for the parties and perused the record.

11. From the submission of the parties, moot issue before me is whether PW-2, PW-3 and PW-4 have falsely deposed before the trial court thereby committing perjury and action for the same is liable to be initiated under Section 340 read with 195(1)(b) of the Cr.P.C.

12. In application dated 30.07.2019 filed under Section 340 of Cr.P.C. allegations leveled against Smt. Neha Sabharwal (respondent no. 4) are that on 30.10.2015 she had deposed that on 09.08.2013 when Ritu was alone, present applicant Sanjeev Gupta manhandled and abused her and, therefore, on her shouting Smt. Neha Sabharwal (Bhabhi of Ritu) along with her mother-in-law and father-in-law with the help of passers-by caught hold the applicant-Sanjeev Gupta and took him to the police station. On the other hand her mother-in-law and father-in-law have denied on oath taking Sanjeev Gupta to the police station. Smt. Neha Sabharwal, in her statement recorded on 14.10.2013 under Section 161 Cr.P.C., had corroborated the version of her father-in-law and mother-in-law. As such, according to the applicant-Sanjeev Gupta, he is aggrieved due to the deposition made by respondents no. 2 to 4 qua taking him to the police station and has tried to point out that there is a contradiction at two stages of statement made by them.

13. Counsel for the respondents has contended that application filed by the applicant under Section 340 of Cr.P.C. was based on the statement given by opposite party nos. 2 to 4 during trial proceeding of criminal case pending against the applicant, therefore, the said application is not maintainable in the eyes of law. It is also contended that correctness of evidence, given during the trial, is to be examined by the trial court and provisions enumerated under Section 195 Cr.P.C. cannot be relied upon. He also emphasized that trial was concluded by the judgment dated 12.09.2018 which is partly affirmed/modified in Criminal Appeal vide judgment dated 30.05.2019 and as such no ground is made out to entertain the contempt proceedings under Section 340 of Cr.P.C.

14. Since the issue is related to the maintainability of application under Section 340 of Cr.P.C., it would be necessary to examine the provisions as embodied under Section 340 read with Section 195 of Cr.P.C. and in particular the provision which is relevant for our purposes i.e. Section 195(b)(i)(ii), read as under:-

“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) …………………

(ii) …………………….

(iii) ……………………

(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.”

15. The provision to initiate proceeding for contempt of lawful authority of public servants etc., Section 195 of Cr.P.C., is envisaged under Section 340 Cr.P.C. which reads 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 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

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

(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.

(4) In this section,”Court” has the same meaning as in section 195.”

16. Section 195 creates a bar to private prosecution. Normally, Section 190 of Cr.P.C. invokes jurisdiction to Magistrate for taking cognizance of any offence under conditions i.e. (a) on receiving a complaint with respect to constitution of offence, (b) upon a police report with respect to incident and (c) upon information received from any person other than police officer or upon his own knowledge. Provisions as embodied under Section 195 of Cr.P.C. provides exception to this general provision and creates embargo upon power of the Court to take cognizance on certain type of offences enumerated therein. Section 195 of Cr.P.C. clearly denotes that it deals with three distinct category of offence which have been described in Clause (a), (b)(i) and (b)(ii), which relates to the contempt of lawful authority of public servant, offence against public justice and offences relating to document given in evidence.

17. In the present matter in hand, the applicant has made allegations with respect to the correctness of contents of affidavit which was filed as an statement on oath during the court proceeding and tried to make out an offence of perjury which is said to have been committed by respondents no. 2 to 4.

18. Commission of offence, while any document was submitted as an evidence during court proceeding, can be examined within the ambit of Section 195 (1) (b) (ii) of Cr.P.C. Before discussing the scope of Clause b (ii), I feel it apposite to discuss the scope of Clause b (i) of Section 195 of Cr.P.C. Clause (b) (i) refers to offence of Chapter XI of I.P.C. which is captioned as “Of false evidence and offence against public justice.” The offences mentioned in this clause relates to giving or fabricating false evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct co-relation with the proceeding in a court of justice. Likewise provision as embodied under Clause (b) (ii) also relates to the offence which directly co-relate with the proceeding in a court of justice. The expression i.e. “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” should normally means that commission of such offence after a document is actually been produced or given in the court. Meaning thereby offence should have been committed at subsequent stage while the document is produced and given in evidence in a proceeding in any court.

19. Section 340 of Cr.P.C. falls under chapter XXVI of Cr.P.C. which is captioned as “provisions as to offence effecting the administration of justice”. There is a clear cut legislative intent that offence committed should be of such nature which directly effects the administration of justice, viz., offence is committed after document is produced or given in evidence in court and enable the court to make a complaint in respect of such offence if that court is of the view that it is expedient in the interest of justice that an enquiry should be made into an offence. Clause (b) of Section 195 (1) Cr.P.C. authorizes such court to examine prima facie as it think necessary and then make a complaint thereof in writing after having recording a finding to that effect as contemplated under Section 340 (1) of Cr.P.C.

20. Bare perusal of Section 340 Cr.P.C. clearly shows that it is a subjective satisfaction of the court concerned as to whether any enquiry should be made or not into any offence referred to in clause (b) of sub section 1 of Section 195 of Cr.P.C. 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 case. Before initiating the proceeding court is also under obligation to conduct a preliminary enquiry. The phrase employed in Section 340 with respect to the cognizance to be taken by the court is “Any Court is of opinion that it is expedient in the interest of justice”. The term as mentioned in Section 340 clearly denotes that Court, in case, is of the opinion that enquiry should be conducted in the interest of justice then he will conduct a preliminary enquiry and record a finding to that effect and make in writing complaint to the Magistrate Ist Class having competent jurisdiction.

21. Scope of Section 340 has already been dealt with in detail by the Constitution Bench of the Hon’ble Supreme Court in the case of Iqbal Singh Marwah Another vs. Meenakshi Marwah Another reported in 2005 (4) SCC, 370. Relevant paragraph nos. 18, 25 26 of the aforesaid judgment is quoted herein below :-

“18. 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(i)(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.

25. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) Cr.P.C. would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any Court i.e. during the time when the document was in custodia legis.

26. In the present case, the will has been produced in the Court subsequently. It is nobody’s case that any offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the Court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.

22. In the case of Iqbal Singh Marwaha (supra) Hon’ble Supreme Court laid at rest the controversy with regard to the scope and applicability of the bar contained under Section 195 of Cr.P.C., it is clear that where the forgery is said to have been committed outside the court and before the document is produced in court then the bar under Section 195 of Cr.P.C. would not operate and Magistrate can take cognizance of a complaint filed by an aggrieved party and would not be necessary to adopt the procedure laid down under Section 340 of Cr.P.C. Meaning thereby, on the reverse, provisions under Section 340 of Cr.P.C. come into play while offence has been commissioned subsequent to the document produced in court and after conducting preliminary enquiry, court can make complaint for such offence to take penal action.

23. In support of his contention, learned counsel for the respondents has cited the decision of the Hon’ble Supreme Court in the case of Ashok Kumar Aggarwal vs. Union of India Others reported in 2013 (15) SCC, 539. In the aforesaid case offence of perjury has been leveled against Investigating Officer who has said to have been filed a false affidavit with respect to completion of enquiry but subsequently it has been found that some further enquiry was conducted with respect to the incident in question. Hon’ble Supreme Court has discussed the scope of Section 340 read with Section 195 of Cr.P.C. and came to the conclusion that there was no attempt at the part of the Investigating Officer to mislead the court.

24. Relevant paragraph nos. 7 8 are quoted herein below :-

“7. In this context, reference may be made of Section 340 under Chapter XXVI of the Cr.P.C., under the heading of “Provisions as to Offences Affecting the Administration of Justice”. This Chapter deals with offences committed in or in relation to a proceeding in the court, or in respect of a document produced or given in evidence in a proceeding in the court and enables the court to make a complaint in respect of such offences if that court is of the view that it is expedient in the interest of justice that an inquiry should be made into an offence. Clause (b) of Section 195 (1) Cr.P.C. authorises such court to examine prima facie as it thinks necessary and then make a complaint thereof in writing after having recorded a finding to that effect as contemplated under Section 340 (1) Cr.P.C. In such a case, the question remains as to whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offences and whether it is also expedient in the interest of justice to take any action. Thus, before lodging a complaint, the condition precedent for the court to be satisfied are that material so produced before the court makes out a prima facie case for a complaint and that it is expedient in the interest of justice to have prosecution under Section 193 IPC. (Vide: Karunakaran v. T.V. Eachara Warrier Anr., AIR 1979 SC 290; and K.T.M.S. Mohd. Anr. v. Union of India, AIR 1992 SC 1831). ”

“8. In the case of Chajoo Ram v. Radhey Shyam Anr., AIR 1971 SC 1367, this Court held: “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.” (Emphasis added)”

25. Counsel for the respondents has also placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Amarsang Nathaji As Himself vs. Hardik Harshadbhai Patel And Others reported in 2017 (1) SCC, 113 wherein case of Iqbal Singh Marwaha (supra) was referred.

26. In view of the discussion made herein above, it is lucid that alleged crime of perjury as stated by the applicant in his application dated 30.07.2019 filed under Section 340 of Cr.P.C. is not going to, in any manner, effect the administration of justice which warrants any interference of the Court for moving complaint qua offence, which is said to have been committed while document was in custodia legis.

27. Mere fact, as deposed by respondents no. 2 to 4, as to whether the applicant had been taken by respondents no. 2 to 4 or not to the police station, is not going to effect the administration of justice and conviction of the applicant is not reasonably probable or likely on this basis alone.

28. Learned trial court has not found the present case fit, in the interest of justice, to enquire into with respect to offence of perjury said to have been committed by respondents no. 2 to 4 and rightly rejected the application on the ground that application was deliberately filed by the applicant, at the final stage of hearing, to prolong the litigation. There was no occasion to invoke the jurisdiction of the court concerned to initiate proceeding of contempt against the contesting respondents no. 2 to 4 for alleged offence of perjury. No offence made out while document was in custodia legis. As per allegation made by the applicant that contesting respondents no. 2 to 4 have filed false statement before the court, meaning thereby, offence of perjury allegedly committed made by the contesting respondents no. 2 to 4 would be prior to submission of documents in judicial proceeding in court. Therefore, as per law laid down by the Hon’ble Supreme Court in the case of Iqbal Singh Marwaha (supra), no case is made out to invoke the jurisdiction of court concerned under Section 340 of Cr.P.C.

29. The applicant has further argued that the courts below have committed illegality in not relying upon the provisions as embodied under Section 343 Cr.P.C. 194 I.P.C. In my opinion, provisions as embodied under Section 343 Cr.P.C. is not applicable in the instant case inasmuch as it provides the procedure to be followed by the Magistrate before whom the complaint is made by the Court concerned after conducting preliminary enquiry under Section 340 Cr.P.C. Provisions as contained under Section 194 I.P.C. are also not attracted inasmuch as it relates to giving or fabricating false evidence with intent to procure conviction of capital offence whereas the present matter relates to offence under Sections 498-A, 323, 377, 504 of I.P.C. ¾ Dowry Prohibition Act.

30. The applicant has also submitted that no reason has been assigned by the court below in rejecting the application dated 30.07.2019. In support of his contention, he has cited judgment dated 29.09.2008 passed by the Hon’ble Apex Court in Criminal Appeal No. 1549 of 2008; State of Himachal Pradesh vs. Manoj Kumar @ Chotu. Aforesaid cited case is arising out of criminal trial under Section 376, 511 506 of I.P.C. Learned trial court has acquitted accused giving him the benefit of doubt. Against the order of acquittal, appeal was filed along with an application for grant of leave in terms of Section 378 of Cr.P.C. Aforesaid application under Section 378 of Cr.P.C. was dismissed summarily merely stating ‘Dismissed’.

31. Against the order of dismissal of above application, criminal appeal was preferred. In those circumstances the Hon’ble Apex Court had observed that reason has to be assigned for refusing grant of leave to file appeal against acquittal and accordingly allowed the appeal and remanded the matter to the High Court for disposal of appeal on merits. Aforesaid cited judgment is clearly distinguishable from the facts of the present case inasmuch as the order in question has to be examined under the scope of Section 340 of Cr.P.C., apart from that the courts below has discussed the case of the applicant and found no ground of interference. Even otherwise, as discussed above, no offence has been committed during the time when the documents was in custodia legis.

32. It is admitted to the parties that the applicant has preferred Criminal Revision No. 2618 of 2019 (Sanjeev Gupta vs. State of U.P. Others) assailing the order dated 30.05.2019 passed by the Sessions Judge, Ghaziabad in Criminal Appeal No. 129 of 2018. The aforesaid revision is still pending and by this Court vide order dated 09.07.2019, the applicant has been enlarged on bail. Therefore, the matter is still sub judice before this Court and the correctness of orders passed by the courts below in original proceeding are still to be examined. Both the courts below have passed conviction order against the applicant relying upon the statements made by witnesses, therefore, at this juncture statement made by respondents no. 2 to 4 cannot be held to be false or be held guilty of committing perjury.

33. The present application moved by the applicant lacks merit and deserves to be dismissed. No sufficient ground is shown to invoke the inherent power of this Court under Section 482 of Cr.P.C. Application dated 30.07.2018 under Section 340 Cr.P.C. filed by the applicant has rightly been rejected by the courts below.

34. The present application filed under Section 482 Cr.P.C. is dismissed. Parties shall bear their own cost.

Order Date :- 28.01.2020

VR/

 

 

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