Durga Prasad vs State of M.P. and Others

Sanjay Yadav, J.—Heard on admission.

A wrong statement alleged to have been made in an affidavit filed before Registrar, Public Trust cum Sub Divisional Officer, Jabalpur in a proceeding u/s 14 of the M.P. Public Trust Act, 1951 vide Annexure P/4 (10.3.2006) and Annexure P/5 (22.3.2006) leading to passing of the order dated 20.4.2006 whereby the permission has been granted to the applicant therein to sell 0.400 hectare of land being part of 0.796 hectare of Khasra No. 35/2 P.C 34 village Lamti is the cause for mandamus as sought in this writ petition under Article 226/227 of the Constitution of India that the "Hon''ble Court may be pleased to punish the Respondent No. 3 and 4 for filing false affidavits and any other relief that this Hon''ble Court deems fit and just may also be granted, or an appropriate writ/direction or order may be issued to the Respondent No. 2 to enquire the matter again and may initiate proceedings u/s 340 of Code of Criminal Procedure against the Respondent No. 3 and 4 and the order dated 20.4.2006 (Annexure P-6) may be declared a nullity being obtained by fraud."

The Statement which appeared in the affidavit, Annexure P/4 and P/5 respectively was:

Registrar, Public Trust, recording his satisfaction that the land in question is lying vacant and that there is loss of income as no agriculture activity is being carried out because of Urbanization (Construction of roads and houses) granted the permission on 20.4.2006 to sell the property in question.

Grievance of the Petitioner is that, because of the wrong statement made by the applicants, i.e., Respondent Nos. 3 and 4, permission was granted. It is urged that on the date when statement was made, a suit for declaration and injunction at the instance of Respondent Nos. 3 and 4 and others was pending. It is urged that in the said suit instituted on 13.9.1989, the relief sought was for declaring the sale-deed dated 28.6.1988 executed by Bhuribai (since deceased) in favour of the Petitioner herein as null and void.

Pertinent it is to note that, the suit was decreed on 29.8.2006 m favour of Respondent Nos. 3 and 4 in the following term.

The Petitioner is silent about as to whether the judgment and decree is subjected to challenge in higher forum.

Be that as it may, the question is whether the statement as it appear in the document Annexure P/4 and P/5 would attract the provisions of Section 340 of Code of Criminal Procedure as the Petitioner intends to invoke.

Section 340 Code of Criminal Procedure stipulates

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 or by such officer of the Court as the Court may authorize in writing in this behalf.

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

In Santokh Singh Vs. Izhar Hussain and Another, , their Lordships were pleased to observe:

...Every incorrect or false statement does not make it incumbent on the Court to order prosecution. The Court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The Court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Too frequent prosecutions for such offences tend to defeat its very object. It is, only in glaring cases of deliberate falsehood where conviction is highly likely, that the Court should direct prosecution....

In Vimla v. Ranjini Murugan and Ors. 1988 (2) Crimes 124 it is observed by learned Chief Justice, High Court of Madras:

Now, the application filed by the Petitioner is for making a complaint of offences under Sections 193 and 199 of the Indian Penal Code. The crucial question which has to be decided is whether the Petitioner who is not a party to the proceeding at all can be permitted to invoke the provision of Section 340 of the Code of Criminal Procedure. The power u/s 340 Code of Criminal Procedure is a drastic power which makes certain conduct in relation to a judicial proceeding in the nature of making a false declaration or giving false evidence punishable. This power cannot be permitted to be utilized by a party to serve his own ends or to satisfy his own urge for revenge, as seems to have been done in the present case. The burden of song of the petition of the Petitioner is that the first Respondent has married her husband and it was only with the intention of marrying her husband, that she secured a decree of divorce on false allegations. She also alleges that those false allegations were admitted by the second Respondent not only to facilitate the granting of the divorce to the first Respondent but also to facilitate the marriage of the first Respondent with the husband of the Petitioner. Assuming for a moment that she may have a valid grievance against the first Respondent, if in fact a marriage has taken place between the first Respondent and the husband of the Petitioner which fact itself is still in dispute, it is difficult to see how the Petitioner can be permitted to use the process of the Court to ventilate her personal grievance. Proceeding u/s 340 Code of Criminal Procedure is not intended to serve personal ends of parties. The provisions are certainly not enacted to be utilized for the benefit of and individual much less they can be invoked by one who is not directly connected with the suit or the proceeding in relation to which the offence is alleged to have been committed. Assuming what the Petitioner states is correct, even if the granting of the divorce in favor of the first Respondent has facilitated her alleged second marriage, the alleged injury inflicted upon the Petitioner by virtue of the second marriage other husband cannot be directly attributed to the divorce granted to the first Respondent. If the marriage between the first Respondent and the second Respondent had irretrievably broken down, about which there does not seem to be much doubt, and the second Respondent did not want to contest the divorce proceedings, that was a matter essentially between the first and the second Respondent and it was not for the Petitioner to say whether the second Respondent should have or should not have contested the divorce proceeding.

I may refer with advantage to two decisions of this Court in Rangaswami v. Gunamaland K. Narayanswami v. T. Kolandaivelu in the Rengaswamis case (supra) this Court pointed out that the bare fact that it was noticed later that false evidence was given in a proceeding will not be sufficient for concluding expediency of prosecution and that the danger of parties vindictively proceeding against their opponents by initiating proceedings u/s 476 Code of Criminal Procedure has to be kept in mind. In Narayanaswamy''s case (supra) this Court pointed out that the bare fact that subsequently it was noticed that false evidence was given in a proceeding by itself will not be sufficient for concluding the expediency of prosecution. The learned Judge followed the decision of this Court in Ramaswami''s case (supra). It was therefore pointed out that when an application is made u/s 340 of the Code of Criminal Procedure, it cannot be allowed as a matter of course, and in considering the expediency of the matter, the Court must consider whether there is any ulterior object which the party seeking to invoke the power u/s 340 Code of Criminal Procedure wants to achieve indirectly by using the course as an instrument for its own ends.

Therefore, in view of above and the obtaining facts of present case an inadvertent statement with no ill motive is not sufficient and cannot form the basis for launching a prosecution u/s 340 Code of Criminal Procedure 1973.

Regarding the relief that the order, dated 20.4.2006 (Annexure P/6) be declared a nullity, in the considered opinion of this Court, in absence of any material that the order is without jurisdiction, no interference is warranted.

In the result petition fails and is hereby dismissed in limine.