Chief Judicial Magistrate has held that there is no mention in the
judgement that respondent had deposed falsely. The learned Chief
Judicial Magistrate dismissed the complaint on 5.2.2011. In appeal,
the learned Additional Sessions Judge, has held that suit of Sanatan
Dharam Sabha has been dismissed by the court and now the lis is
pending in regular second appeal in the High Court as per statement
made by the learned counsel for the petitioner at bar. The trial court
did not find any fault in the statement made by the Secretary Sanatan
Dharam Sabha. It has been held that it is difficult for the appellate
court or the trial court to arrive at the conclusion that it is expedient in
the interest of justice to inquire into the offence.
The learned
Additional Sessions Judge dismissed the appeal on 30.11.2011
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 54 of 2012.
Judgement reserved on: 24.4.2012.
Date of decision: 30.4.2012
Jagannath s/o Jai Ram, r/o Bara Chouk Bhunter, Tehsil and Distt. Kullu,
H.P.
..... Petitioner
Vs.
Ram Lal Sharma, Secretary, Sanatan Dharam Sabha, Kullu, H.P.
........ Respondent.
Coram
The Hon’ble Mr. Justice Kuldip Singh, Judge.
citation;2013 CR L J (NOC)1HP
This revision has been filed against judgement dated
30.11.2011 in Criminal Appeal No. 21 of 2011 passed by learned
Additional Sessions Judge, Fast Track, Kullu affirming order dated
5.2.2011 passed by learned Chief Judicial Magistrate, Kullu in
2.
The facts in brief are that petitioner had filed an
application under section 340 Cr.P.C. for prosecution of respondent
for offence, punishable under sections 191, 193 IPC. It has been
alleged that respondent was the Secretary of Sanatan Dharam Sabha
Kullu. The Sanatan Dharam Sabha had filed a suit for declaration,
which was dismissed by the learned Civil Judge (Senior Division),
Kullu on 30.6.2008.
Judge, Kullu.
The appeal was pending in the court of District
The respondent appeared as witness of Sanatan
Dharam Sabha on 12.10.2007 and denied the suggestion that
resolution No. 2 was tampered with and interpolated that Jai Ram has
been appointed as Sub Manager.
Thereafter the respondent has
asserted in his deposition that accused had communicated the
dismissal of Jai Ram from the post of Sub Manager through a
registered letter dated 25.3.1961.
He denied the suggestion that
resolution Ex. PW 3/A was tampered and inserted the words that “Jai
Ram was appointed as Dy. Manager”.
3.
The respondent knew that Jai Ram had never been
appointed as Dy. Manager of Sabha, the respondent further falsely
deposed that one 21⁄2 storeyed slate roofed building on the disputed
land was constructed after the filing of civil suit by Sabha. He denied
the existence of second house on the suit land knowing fully well that
there were two houses on the suit land at the time when respondent
made statement under oath before the Civil Judge (Senior Division),
Kullu. The respondent denied the possession of `Dak register’, cash
book with intention to defeat the claim of petitioner. The respondent
has no record of letter dated 30.7.1964 bearing letter No. 659/64/PTK
mark-C in the civil suit, which was sent by the petitioner to Sabha.
The respondent knowingly gave false statement.
4.
The inquiry was held, the petitioner gave his statement,
several documents were taken on record during inquiry. The learned
Chief Judicial Magistrate has held that there is no mention in the
judgement that respondent had deposed falsely. The learned Chief
Judicial Magistrate dismissed the complaint on 5.2.2011. In appeal,
the learned Additional Sessions Judge, has held that suit of Sanatan
Dharam Sabha has been dismissed by the court and now the lis is
pending in regular second appeal in the High Court as per statement
made by the learned counsel for the petitioner at bar. The trial court
did not find any fault in the statement made by the Secretary Sanatan
Dharam Sabha. It has been held that it is difficult for the appellate
court or the trial court to arrive at the conclusion that it is expedient in
the interest of justice to inquire into the offence.
The learned
Additional Sessions Judge dismissed the appeal on 30.11.2011. In
this way, the matter has come in revision.
5.
Heard.
The learned counsel for the petitioner has
submitted that two courts below have erred in dismissing the
application of the petitioner under section 340 Cr.P.C. for proceeding
against the respondent. It has been submitted that in case the court
is not inclined to interfere then the revision may be heard alongwith
regular second appeal, which is pending in the High Court which has
arisen out of the suit decided on 30.6.2008. The learned counsel for
the respondent has supported the impugned judgement. He has
submitted that the present revision has arisen out of the proceedings
started by the petitioner by filing section 340 Cr.P.C. application in the
court below. It is for the court who decides the case to proceed or not
to proceed for perjury. The application under section 340 Cr.P.C. was
filed by the petitioner when the case had already been decided,
...4...
therefore, foundation of the application, under section 340 Cr.P.C. is
wrong and no purpose will be served by tagging the present revision
with regular second appeal file.
6.
The sub-section (1) of section 340 of Code of Criminal
Procedure provides that when upon an application made to it in this
behalf or otherwise any court is of opinion that it is expedient in the
interest 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 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 give evidence before
such Magistrate.
The sub-section (2) of section 340 of the Code of Criminal Procedure
provides that
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.
7.
The Civil Suit No. 147/93(182/2000) Sanatan Dharam
Sabha vs. Jagan Nath was dismissed by learned Civil Judge (Senior
...5...
Division), Kullu on 30.6.2008. The application under Section 340
Cr.P.C. was filed in the Court of learned Chief Judicial Magistrate,
Kullu on 29.4.2009. In the application grievance has been raised by
the petitioner against respondent regarding conduct of the respondent
in Civil Suit No. 147/93 (182/2000). In fact, the application was filed
when the appeal arising out of judgment, decree dated 30.6.2008 was
pending in the Court of learned District Judge, Kullu. It has been
stated by the learned counsel for the parties that the learned District
Judge has also decided the appeal and now the matter is pending in
the High Court in Regular Second Appeal.
8.
In K.T.M.S. Mohd. and another vs. Union of India
(1992) 3 SCC 178, the Supreme Court has noticed Section 340 of
the Code and has held that 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 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
authorizes 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 Section 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.
9.
In Lakhan Lal Saraf vs. Moti Lal 2008 Cri. L.J.1714 first
appeal at the instance of the respondent/defendant was pending in
the High Court when the petition under Section 340 of the Code was
filed before the District Judge. It has been held that due to pendency
of first appeal before the High Court, the learned District Judge could
not have entertained and commenced the enquiry on a petition under
Section 340 of the Code by the respondent/defendant. There is
nothing on record to show that in the judgment dated 30.6.2008 the
trial Court has observed that respondent has committed some
illegality as alleged by the petitioner in the complaint under Section
340 Cr.P.C. There is also nothing on record to show that the learned
trial Court at any point of time has observed during trial regarding the
conduct of the respondent that in the interest of justice it is expedient
to try him for any misconduct.
10.
The application under Section 340 Cr.P.C. was filed after
the decision of the suit when first appeal was pending before the
learned District Judge. Now that very matter has come in Regular
Second Appeal as stated by the learned counsel for the parties. In
these circumstances, the application under Section 340 Cr.P.C. filed
by the petitioner before the trial Court itself was not maintainable. The
present revision is the continuation of the proceedings initiated by the
petitioner by filing application under Section 340 Cr.P.C. Therefore,
no purpose will be served by hearing the present revision along with
Regular Second Appeal arising out of the suit and stated to be
pending in the High Court as the application out of which the present
revision has arisen is not maintainable. There is no merit in the
revision.
11.
In view of above, the revision fails and is accordingly
dismissed.
April 30, 2012.
(Hem/gr)
( Kuldip Singh ),
Judge.
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