Anil Kumar Dey vs Netaipada Kundu

Asim Kumar Mondal, J.—The learned counsel for the petitioner is present. None appeared on behalf of the opposite party on repeated calls. The matter is taken up for hearing. Heard the learned counsel for the petitioner.

It is submitted by the learned counsel for the petitioner that the suit for declaration of title and permanent injunction against the petitioner was filed by the opposite party which is pending before the learned Court below. The petitioner after entering into appearance in the said suit filed a written statement denying all material allegations contained therein. It is further submitted by the learned counsel for the petitioner that the plaintiff/opposite party made some false statement on oath before the learned Trial Judge and verified the same as true to his knowledge and belief. As such, the petitioner filed an application u/s 340 of the Code of Criminal Procedure before the learned Court below praying for making enquiry into the offences committed by the plaintiff/opposite party. The learned trial judge by an order impugned has been pleased to keep the said petition pending for disposal till the conclusion of argument of the original suit.

The learned counsel for the petitioner submitted that admittedly there is no hard and first rule as to disposal of petition u/s 340 of the Code of Criminal Procedure pending the original suit or proceeding before the learned Trial Court. But it is also viewed by the Hon''ble Apex Court that the petition being criminal in nature should be disposed of first in order to avoid conflict of findings in the proceedings u/s 340 of the Code of Criminal Procedure and also in the original proceeding/suit pending before the learned Court.

The learned counsel for the petitioner relied upon the reported decisions of Hon''ble Apex Court at Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another,

On careful perusal of the petition in question before this court, it appears that in a suit the opposite party/plaintiff filed against the present petitioner claimed right, title and interest in a piece of land on the strength of some documents and he also submitted before the learned Trial Court the said documents on oath by filing affidavit. During the pendency of the said suit at the stage of framing of issues the petitioner filed one petition u/s 340 of the Code of Criminal Procedure claims the documents as forged and fabricated with a prayer to enquire into the matter and to lodge complaint against the plaintiff/opposite party as per procedure of law.

The learned Trial Judge after hearing both sides has been pleased to pass the impugned order with an observation that in the provision of section 340 of the Code of Criminal Procedure be adopted only of the interest of the justice so requires. In order to hold that it is in the interest of the justice to proceed in respect of the petition u/s 340 of the Code of Criminal Procedure the Court needs to satisfy itself with all available materials produced before it to hold that a person before it worthily to be prosecuted against. It is also observed by the learned Trial Judge that trial yet to begin on the main suit. Under such circumstances to hold whether any forgery as alleged committed is to be decided only after the conclusion of the trial of the main suit on the basis of available materials to proceed u/s 340 of the Code of Criminal Procedure.

In fact, the learned Trial Judge has decided and observed that the petition filed by the present petitioner before the learned Trial Judge u/s 340 of the Code of Criminal Procedure is prematured. Though, the learned Trial Judge in so many words has not expressed such conclusion. In view of provisions u/s 340 of the Code of Criminal Procedure and also in view of observations 6f Hon''ble Apex Court as has relied upon by the learned counsel for the petitioner and cited before this Court. I am of the view that the petition u/s 340 of the Code of Criminal Procedure pending before the learned trial Judge should be decided on the basis of materials available on record before him instead of keeping the same pending for disposal after conclusion of argument of the main suit. If it is found that the petition is pre-matured and at this stage there is no materials available before the learned Trial Judge to come to a conclusion to lodge a complaint u/s 340 of the Code of Criminal Procedure, the learned Trial Judge should have passed specific order disposing of the petition with a liberty to the petitioner to file any such complaint u/s 340 of the Code of Criminal Procedure, if so, desired and advised at the appropriate stage and time.

Hence, the petition is disposed of with the following directions.

The learned Trial Judge is to hear afresh both the parties and to come to a conclusion whether there is any materials to proceed with the complaint u/s 340 of the Code of Criminal Procedure or not at this stage and pass order accordingly in view of the above observations. Let a copy of this judgment be sent down to the learned Court below for information and necessary action.

Urgent photostat certified copies, if applied for, be supplied accordingly as per rule.