Mani Ram vs Bal Raj

M.L. Singhal, J.

This is a petition under Section 482 Cr.P.C. whereby the aforesaid petitioners have prayed for the quashing of application Annexure P.1 dated 27.7.1996 filed under Section 340 Cr.P.C. and the order Annexure P.2 passed thereon by Chief Judicial Magistrate, Hissar.

For appreciating this prayer, we have to advert to the facts leading upto the application under Section 340 Cr.P.C. filed by Balraj (respondent herein) against Mani Ram etc. (petitioners herein).

According to Balraj, Ami Lal and Shiv Raj sons of Rama son of Harsukh had obtained judgment and decree dated 23.8.1994 from the Court of Sub Judge 1st Class (Chief Judicial Magistrate, Hissar) in civil suit No. 1064 of 1994 titled Ami Lal etc. v. Mani Ram. It was a collusive judgment and decree. Mani Ram etc. played fraud with the Court inasmuch as he showed a false and fabricated pedigree in para No. 1 of the plaint. In the pedigree, Mani Ram was shown as Mani Ram s/o Surja s/o Hari Ram s/o Harsukh. In fact, Hari Ram''s father''s name was Sheo Dan and not Harsukh. Harsukh had only one son named Rama who was father of Ami Lal and Shiv Raj. Ami Lal and Shiv Raj sons of Rama s/o Harsukh were plaintiffs in the aforesaid suit. Ami Lal and Shiv Raj obtained that judgment and decree collusively by playing fraud upon the Court by inducing this belief that Mani Ram son of Surja s/o Hari Ram s/o Harsukh and they are the descendants of Harsukh and belong to the same genealogical tree. According to Balraj, Courts normally pass declaratory decrees among the male lineal descendants who have descended from the same common ancestor. If the correct pedigree had been set out in the plaint, the Court would not have passed the decree, and allowed the fountain of justice to be sullied. Balraj moved an application under Section 340 Cr.P.C. against Mani Ram son of Surja, Ami Lal and Shiv Raj sons of Rama for invoking the powers vesting in it under Section 195(1) Cr.P.C. and to hold an inquiry into the matter and have criminal case under Sections 420, 468, 193 and 120B IPC registered against them.

On application Annexure P.1 under Section 340 Cr.P.C., Chief Judicial Magistrate, Hissar passed the following order on 27.7.1996 :

"Complaint presented today. It be checked and registered. Arguments heard. The counsel for the complainant has relied upon Sardul Singh v. State of Haryana, 1992(3) RCR 545 as well as Munshi Asrafur Rehman v. Munshi Rafiqual Reman, 1989(2) All India Criminal Law Reporter 236. After going through the circumstances of the case and the annexures appended along with the complaint, in my opinion, there is a prima facie case for the commission of the alleged offence and thus it is expedient in the interest of justice to issue show cause notice to the respondents as to why proceedings under the provisions of Cr.P.C be not initiated against them. Therefore, issue show cause notice to the respondents on PF etc. for 27.9.1996."

Grievance of Mani Ram etc. petitioners is that Chief Judicial Magistrate passed the impugned order on 27.7.1996 i.e. the moment the application under Section 340 Cr.P.C. was presented before him. He did not hold any inquiry as envisaged by Section 340 Cr.P.C. before passing the impugned order Annexure P.2. Section 340 Cr.P.C. reads as follows :

"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.

(2) The power conferred on a Court by subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (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 subsection (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.

(4) In this Section ''Court'' has the same meaning as in Section 195."

It is averred that the Court would proceed to hold an inquiry if it is of opinion that it will be expedient in the interest of justice that the inquiry should be made into any offence referred to in clause (b) of sub section (2) 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 to record a finding to that effect; or make a complaint thereof in writing to a Magistrate of first class having jurisdiction. It is averred that Chief Judicial Magistrate, Hissar did not hold any preliminary enquiry before he could make up his mind whether any offence had been committed in that Court in relation to any proceeding in that Court or in respect of any document produced in that Court in that proceeding. It was only after Chief Judicial Magistrate, Hissar had held preliminary inquiry and reached a finding that some offence had been committed in that Court in relation to that proceeding, that he could draft a complaint and send that complaint to the Magistrate of the first class having jurisdiction. Section 340 Cr.P.C. read with Section 195 Cr.P.C. deals with the procedure required to be followed where an offence is committed with respect to judicial proceedings in a Court. Grievance of the petitioners is thus the noncompliance of the provisions of Section 340 read with Section 195 Cr.P.C. before order Annexure P.2 was passed.

I have heard the learned counsel for the petitioners and the learned counsel for the respondent.

It is clear even from the cursory glance at Section 195 Cr.P.C. that Court shall take cognizance only on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476 of the IPC when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in that Court. In this case the offences falling within the ambit of Sections 420, 468, 471, 193, and 120B IPC are alleged to have been committed in the Court of Sub Judge 1st Class (CJM), Hissar who passed the decree in civil suit No. 1064 of 1994 titled Ami Lal etc. v. Mani Ram on 23.8.1994 relying upon the pedigree set out by Ami Lal etc. in the plaint which according to Mani Ram was false.

Section 340 Cr.P.C. sets out the procedure in cases mentioned in Section 195 Cr.P.C. It is clear from a bare reading of Section 340 Cr.P.C. that the Court whose jurisdiction is sought to be invoked for setting the law in motion as to offences affecting the administration of justice, that Court shall make a preliminary enquiry as it thinks necessary and then record a finding to that effect that the offence as referred to in clause (b) of sub section (1) of Section 195 Cr.P.C. 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 and then make complaint thereof in writing to a Magistrate of the first class having jurisdiction.

It was submitted by the learned counsel for the petitioners that the Sub Judge 1st Class (CJM), Hissar passed order Annexure P.2, the moment the complaint was presented to him under Section 340 Cr.P.C. He passed the order Annexure P.2 calling upon Mani Ram etc. to show cause as to why proceedings under the provisions of Cr.P.C. be not initiated against them. It was submitted that the Magistrate only reproduced the language of Section 340 Cr.P.C. without the application of mind to the facts set out therein and weighing them at the touchstone of probabilities. In B.S. Sandhu v. Rajinder Singh, 1986(2) RCR 281 , the learned Single Judge of this Court held that the Magistrate is not to issue show cause notice mechanically on application under Section 340 Cr.P.C. He would record his opinion that it would be expedient in the interest of justice to issue show cause notice. A bare reading of Section 340 Cr.P.C. would indicate that the first thing to be considered by the Court, when an application is made under it, is whether the circumstances are such as to warrant a finding that it is expedient in the interest of justice that the matter should be enquired into by the Magistrate, if so, a finding is recorded and complaint is made, procedure of mechanically issuing a show cause notice merely on filing of application is unwarranted. In Mangat Singh v. Rakha Singh, 1995(3) RCR 312, the same view was taken which is that complaint is required to be made only if it is expedient in the interest of justice to make complaint.

It preliminary enquiry is held by Sub Judge 1st Class (CJM), Hissar into the allegation of Balraj made in application under Section 340 Cr.P.C., the Magistrate will have the occasion to find whether the prosecution of Ami Lal etc. would be expedient in the interest of justice and if he forms an opinion that their prosecution would be expedient in the interest of justice, he will draft a complaint or have the complaint drafted and send it for trial to the Magistrate having jurisdiction. He himself would not be able to try that complaint. He will have to send that complaint to some other Magistrate having jurisdiction to try it. Holding of a preliminary enquiry will obviate the possibility of using the Court as a tool for satisfying their personal vendetta. It is with a view to see that the fountain of justice remains unpolluted that the legislature introduced chapter No. XVI in the Code of Criminal Procedure viz. provisions as to fitness affecting the administration of justice. At the same time, the legislature has provided safeguards against false complaints with the object to satisfy the personal vendetta. In Jose John v. K.C. Kuruvilla, 1996(1) RCR 560 , the Kerala High Court also took the view that Section 340 Cr.P.C. contemplates an enquiry in respect of offences mentioned in Section 195 Cr.P.C. Mere satisfaction that an offence appears to have been committed in or in relation to a proceeding in the Court is not sufficient that enquiry should be conducted and the Court should not launch prosecution unless it considers that it is expedient in the interest of justice to launch the prosecution. Prosecution is not undertaken to satisfy the private grudge of the litigant.

It is true that the wording of order Annexure P.2 suggests that after the appearance of Mani Ram etc. the Court could hold an enquiry for determining whether complaint should be instituted against them as prayed for by Balraj but this order does not indicate what weighed with the Court viz. Sub Judge First Class (CJM), Hissar to say that in his opinion there was a prima facie case for the commission of the alleged offence and that it was expedient in the interest of justice to issue show cause notice to Mani Ram etc. as to why proceedings under the provisions of Cr.P.C. be not initiated against them. In my opinion, the learned Magistrate should not have passed order Annexure P.2 without holding preliminary enquiry into the truth of the allegations made in application under Section 340 Cr.P.C. by Balraj. JUDGMENT Annexure P.2 alone, therefore, has to be quashed. Sub Judge 1st Class (CJM), Hissar is directed to hold a preliminary enquiry into the allegations made by Balraj in his application under Section 340 Cr.P.C. made to him for instituting complaint against Mani Ram etc. under Sections 420, 468, 471, 193 and 120B IPC. If, as a result of preliminary enquiry, he comes to the conclusion that it would be expedient in the interest of justice to institute complaint against them under Sections 420, 468, 471, 193 and 120B IPC, he shall issue show cause notice to them calling upon them to show cause against that order. If after appearance before Sub Judge 1st Class (CJM), Hissar, Mani Ram etc. are able to satisfy him that it would not be expedient in the interest of justice to prosecute them, he will vacate the show cause notice and if he is of opinion after hearing them that it would be expedient in the interest of justice to prosecute them he will draft a complaint or have the complaint drafted and send it to the Magistrate of 1st Class having jurisdiction. Whatever order he passes after appearance of Mani Ram etc. that will be appealable under Section 341 Cr.P.C. at the instance of the aggrieved party. It would bear repetition that the procedure contemplated by Section 340 Cr.P.C. is designed to obviate the institution of false complaints to satisfy the personal vendetta of the litigant, and at the same time, it is designed to see that fountain of justice remains unpolluted and the one who pollutes the fountain of justice must bear the brunt of having polluted the fountain of justice. In the result, this Crl. Misc. petition is accepted to the extent that order Annexure P.2 is quashed. Application under Section 340 Cr.P.C. Annexure P.1 shall remain pending on the file of Sub Judge 1st Class (CJM), Hissar who will hold preliminary enquiry as envisaged in Section 340 Cr.P.C. to find out the feasibility of instituting complaint against Mani Ram etc. under Sections 420, 468, 471, 193 and 120B IPC. The Magistrate will comply with the provisions of Section 195 Cr.P.C. read with Section 340 Cr.P.C.