Criminal Miscellaneous Application, copies of which have been
filed on record and also copy of examination in chief of the
complainant/i.e. the petitioner which is forming a part of the
paper book, I find that, there is substance in the submissions of
the petitioner that the learned Magistrate has passed the
impugned order completely in ignorance of facts on record.
Copy of the written statement filed by the respondent nos. 3 and
4 in Regular Civil Suit No. 103/2010 as well as the copy of the
reply filed in Revenue Proceedings by the same respondents
have already been acknowledged to be produced on record by
the petitioner. That apart, Regular Civil Suit No. 103/2010, as
seen from the roznama, itself was transferred to the Court of the
same learned Magistrate and it was pending before him on the
date on which the impugned order was passed. It has been
brought to the notice of this Court by the petitioner that even
today this Civil Suit is pending on the file of the same learned
Magistrate. The learned Magistrate, therefore, could have
done well to benefit himself by adverting to the facts contained
in the record of the said suit pending before him if at all he had
some doubts about filing of the relevant documents by the
petitioner. He could also have assured himself in this regard by
going through the record of the Regular Civil Suit regarding
outcome of the proceedings in that suit. The learned
Magistrate, however, did not embark upon such an exercise and
the result was dismissal of the complaint on completely
untenable and unsustainable grounds. Even otherwise, out
come of the proceedings of the suit or the revenue case could
not said to be have any relevance for deciding the issue of
prima facie making out of any offence of perjury as alleged by
the petitioner and what could have been material for arriving at
a decision in this regard was the bundle of facts alleged to be
contrary, as revealed from the statements made by the
respondent nos. 3 and 4 in their written statement filed by
them in Regular Civil Suit and their reply in the Revenue Case.
Such an order, therefore, is perverse and arbitrary and cannot
sustain the scrutiny of law. It deserves to be quashed and set
aside and the matter is required to be heard afresh by the
learned Magistrate.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL WRIT PETITION NO. 154 OF 2015.
Cedric Bosco Savio Lobo,
V
State of Goa represented
by its Chief Secretary
Coram:-S. B. SHUKRE, J.
Date:-7th January, 2016.
Citation:2016 ALLMR(CRI)4737
2. Rule made returnable forthwith.
3. Heard finally by consent.
4. Ms. M. Pinto, learned Additional Public Prosecutor waives
notice on behalf of the respondent nos.1 and 2 and Mr. S.
Kalangutkar, learned Advocate waives notice on behalf of the
respondent nos. 3 and 4.
5. By this petition, the petitioner has challenged the order
dated 16.10.2015 passed in Criminal Miscellaneous Application
no. 164/2012 by the Judicial Magistrate First Class, "C" Court
Mapusa. According to the petitioner, who appears in person,
the order impugned reflects complete non-application of mind to
the facts of the case by the learned Magistrate and is founded
upon unsustainable grounds. The petitioner further submits that
only two reasons have been stated by the learned Magistrate in
rejecting the complaint filed by him for initiating action in
accordance with section 340 of Cr.P.C for filing of complaint
against the respondent nos. 3 and 4 for offences punishable
under Sections 193, 196, 199 and 200 of IPC. -- 3 --
6. The substance of allegations against the respondent nos. 3
and 4 was that in two civil proceedings, one being Civil Suit
bearing Regular Civil Suit No. 103/2010 and the other being
Revenue Proceedings bearing No. DDPN/Calangute/Bar/29/2011
initiated under Sections 65 and 66 of the Goa Panchayat Raj Act,
1994, these respondents made contrary statements on oath and
thus committed offences relating to perjury. The petitioner
states that the learned Magistrate, however, has not at all
applied his mind to the facts of the case and this is evident from
his observation that copy of the complaint/copy of the written
statement as well as copy of the reply of the respondent nos. 3
and 4 were not filed on record by the petitioner. He also points
out that even though outcome of these two proceedings had no
bearing upon the merits of the allegations made against the
respondent nos. 3 and 4, and what was material was only
making out the offences relating to perjury, the learned
Magistrate held that the complaint did not disclose any thing
about out come of the proceedings before Civil Court and the
Public Authority. The petitioner has taken me through the
alleged contrary statements of the respondent nos. 3 and 4 in
order to support his argument that prima facie offences relating
to perjury have been committed by these respondents.
Accordingly, the petitioner states that the learned Magistrate be-- 4 --
directed to file a complaint in terms of Section 340 of Cr.P.C.
against the respondent nos. 3 and 4 for the said offences.
7. The learned Counsel for the respondent nos. 3 and 4
submits that so far as the facts emerging from the record are
concerned, record of the complainant case which is Criminal
Miscellaneous Application No. 164/2012 speaks for itself and he
has nothing to add thereto. He also submits that perusal of the
alleged contrary statements made in the written statement and
the reply would only show that no prim facie case of perjury has
been made out by the complainant i.e the petitioner. On these
grounds he urges that this Writ Petition deserves to be
dismissed.
8. Learned Additional Public Prosecutor submits that record
of the Criminal Miscellaneous Application is here which is selfexplanatory
and therefore, further submits that an appropriate
order be passed.
9. On going through the relevant pages of the roznama of the
Criminal Miscellaneous Application, copies of which have been
filed on record and also copy of examination in chief of the
complainant/i.e. the petitioner which is forming a part of the
paper book, I find that, there is substance in the submissions of
the petitioner that the learned Magistrate has passed the
impugned order completely in ignorance of facts on record.
Copy of the written statement filed by the respondent nos. 3 and
4 in Regular Civil Suit No. 103/2010 as well as the copy of the
reply filed in Revenue Proceedings by the same respondents
have already been acknowledged to be produced on record by
the petitioner. That apart, Regular Civil Suit No. 103/2010, as
seen from the roznama, itself was transferred to the Court of the
same learned Magistrate and it was pending before him on the
date on which the impugned order was passed. It has been
brought to the notice of this Court by the petitioner that even
today this Civil Suit is pending on the file of the same learned
Magistrate. The learned Magistrate, therefore, could have
done well to benefit himself by adverting to the facts contained
in the record of the said suit pending before him if at all he had
some doubts about filing of the relevant documents by the
petitioner. He could also have assured himself in this regard by
going through the record of the Regular Civil Suit regarding
outcome of the proceedings in that suit. The learned
Magistrate, however, did not embark upon such an exercise and
the result was dismissal of the complaint on completely
untenable and unsustainable grounds. Even otherwise, out
come of the proceedings of the suit or the revenue case could
not said to be have any relevance for deciding the issue of
prima facie making out of any offence of perjury as alleged by
the petitioner and what could have been material for arriving at
a decision in this regard was the bundle of facts alleged to be
contrary, as revealed from the statements made by the
respondent nos. 3 and 4 in their written statement filed by
them in Regular Civil Suit and their reply in the Revenue Case.
Such an order, therefore, is perverse and arbitrary and cannot
sustain the scrutiny of law. It deserves to be quashed and set
aside and the matter is required to be heard afresh by the
learned Magistrate.
10. Accordingly, petition is allowed. The impugned order
dated 16.10.2015 is hereby quashed and set aside. The case is
remanded back to the learned magistrate for a fresh
consideration of the Criminal Miscellaneous Application No.
164/2012 in accordance with law. The learned Magistrate shall
dispose of the application as expeditiously as possible and in
any case within a period of six months from the date of the
order.
11. Rule is made absolute in these terms.
12. Petition stands disposed of.
S. B. SHUKRE,J.
vn*
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