Hazara Singh vs Rattan Singh

V.S. Aggarwal, J.

The present revision petition has been filed by Hazara Singh directed against the judgment of the learned Addl. Sessions Judge, Hoshiarpur, dated 10.8.1987. By virtue of the impugned judgment, learned Addl. Sessions Judge had accepted the appeal and set aside the order passed by the learned Judicial Magistrate 1st Class, Dasuya.

Some of the relevant facts are that Rattan Singh is the father of the petitioner. On 19.11.1983 he made a report that he was ploughing his land when the petitioner assaulted him and injured the applicant Rattan Singh. The result was that there was a fracture of third tooth of the lower jaw. The upper part of the tooth was missing besides other injuries. The petitioner was tried and was ultimately acquitted by the learned Judicial Magistrate. This led to the filing of application under Section 340 of the Code of Criminal Procedure. The respondents had appeared and contested the application. Enquiry was held and the parties had led their evidence.

Learned Judicial Magistrate, Dasuya, on appraisal of evidence held that the prosecution witnesses were contradictory in material respect. They changed the place of occurrence. They were also contradictory in their version about the area of the field which was being ploughed by Rattan Singh. There was no certain evidence that the complainant lost the teeth as a result of the injury caused. The trial Court felt that the First Information Report was not correct. It was accordingly directed that complaint for the offence under sections 193 and 211 of the Indian Penal Code be filed.

Aggrieved by the said order, an appeal was filed by Rattan Singh and others. The learned Additional Sessions Judge accepted the appeal and held that absence of corresponding injury on the lip or the cheek may play a very important part in case victim is a young person. Since the complainant was an aged one person, a slight pressure may have resulted in uprooting the teeth. It was further observed that sense of direction of the witness varies from person to person and same is the position with respect to the fact whether the shirt of the victim was bloodstained or not. The learned Addl. Sessions Judge held that it was not a fit case for making a complaint and order of the learned trial Court was set aside. Hence, the present revision petition.

The first and the foremost question that comes up for consideration in the present case is as to whether the trial Court was justified in making the complaint or not. Section 340(1) of the Code of Criminal Procedure 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 interest of justice that an inquiry should be made into any offence referred to in clause (b) of subsection (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 nonbailable 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."

A perusal of the same clearly shows that the Court can exercise power under Section 340 of the Code of Criminal Procedure when it is of the opinion that it is expedient in the interest of justice that inquiry should be made and further that offence contemplated under clause (b) of subsection (1) of Section 195 appears to have been committed in or in relation to a proceeding in that Court. Calcutta High Court in the case of Bibhuti Bhusan Basu v. Corporation of Calcutta and others, 1982 Crl.L.J. 909 considered the said aspect and held as under :

"......These apart, the Court should, before directing a complaint to be filed, also consider, if the evidence as led, was intentionally done and knowing the same to be false or the same was intended to have some unlawful gain over the adversary and was aimed at having some advantage irregularly. Thus, like all other Criminal trials or proceedings, the existence of mens rea or the criminal intention behind the act as complained of will also have to be looked into and considered, before any action under S. 340 is recommended..."

The same question was also looked into by the Bombay High Court in the case of Parwat Vedu Patil and another v. Sukdev Shivram Patil, 1956 Criminal Law Journal 1069. This was the decision interpreting Section 476 of the Code of Criminal Procedure, 1898. It is pari materia with Section 340 of the Code of Criminal Procedure, 1973. The Court held that distinction must be drawn between a document which does not appear to be genuine and the document which may be regarded as fabricated. Same is the position herein. Learned Additional Sessions Judge rightly recorded that mere acquittal of the accused did not necessarily entail filing of complaint for certain offence invoking section 340 of the Code of Criminal Procedure. It could not be held with certainty that the offence contemplated appeared to have been committed in the proceedings of the Court. Secondly, there is no ground to interfere in the impugned order passed by the learned Additional Sessions Judge.

There is another way of looking at the matter. Learned Judicial Magistrate did not record any finding that lodging of the complaint was expedient in the interest of justice. Section 340 of the Code reveals that this a fundamental requirement before a complaint under Section 340 of the Code is lodged. This question had been considered by Delhi High Court in the case of K.K. Khanna and another v. M/s Expo Enterprises India, New Delhi and others, 1984(2) RCR(Crl.) 360 : 1984 Criminal Law Journal 1723 . In paragraph 6 of the judgment, it was held as under :

"Thus, in the impugned order the learned Addl. District Judge has failed to record that the lodging of the complaint against the appellants would be expedient in the interest of justice and that he was quite certain about the conviction of the appellants therein. The absence of this plain finding vitiates the impugned order."

As already pointed out, in the present case no finding has been recorded that it is expedient in the interest of justice that inquiry should be made into the offence referred to above.

The net result of the aforesaid is that the revision petition is totally devoid of merit and the same is consequently dismissed.