Onkar Chand vs State (UT of Chandigarh) and others

Vinod K. Sharma, J.—The petitioner seeks quashing of complaint attached as Annexure P.17 dated nil which was sent by P.R. Sharma

Judicial Magistrate First Class, Chandigarh (for short Magistrate) on 11.3.2004 u/s 340 of the Code of Criminal Procedure (for short the Code) to

learned Chief Judicial Magistrate, Chandigarh as well as the order dated 12.3.2004 vide which the petitioner was summoned to stand trial u/s 193

of the Indian Penal Code on the basis of the complaint. The petitioner has also challenged the order dated 2.8.2005 vide which the petition filed by

the petitioner was dismissed by learned Additional Sessions Judge, Chandigarh. The petitioner also seeks quashing of all subsequent proceedings.

The Servants of People Society (hereinafter referred to as Society) was founded by Lala Lajpat Rai in 1921. The Headquarter of the Society is

located at Lajpat Bhawan, Lajpat Nagar, New Delhi which has various branches in various parts of India. Chandigarh Branch is located in Lajpat

Rai Bhawan, Sector-15, Chandigarh. The petitioner claims to be a life member of the Society having joined the same in 1959. He was Secretary

of the Society at the said Headquarter from 1959 to 1981. He became member Incharge of Chandigarh Branch of the Society at Lajpat Rai

Bhawan, Sector-15, Chandigarh from March, 1980 onwards and in August, 2002 he was appointed as Vice President of the Society. Sumer

Chand Bhatt, father of respondent No. 3, had been life member of the Society for 19 years. He was elected to Haryana Legislative Assembly in

1977 on Janta Party Ticket.

It is the case of the petitioner that father of respondent No. 3 was asked to resign from the life membership of the Society failing which he would

cease to be the life member and he resigned on 17.3.1980 from the life membership of the Society. It is further the case of the petitioner that in

place of respondent No. 3 he was appointed as his successor.

A civil suit titled Servants of People Society v. Sumer Chand Bhatt was filed through the petitioner on behalf of Society as member incharge

Secretary of the Chandigarh Branch. Said civil suit was decreed on 20.3.2003. In the said suit the petitioner appeared as witness and his statement

was recorded on different dates i.e. 24.1.1997 and 19.5.1997 and he was subjected to cross- examination on 24.5.2001, 8.8.2001 and

2.5.2002. During the proceedings of the said civil suit defendant Sumer Chand Bhatt died on 18.3.1999 and thereafter the suit was pursued by his

legal representative i.e. respondent No. 3.

The judgment and decree passed by the learned Civil Judge, (Junior Division), Chandigarh has been challenged by respondent No. 3 as legal

representative by filing in appeal. With slight modification appeal also stands dismissed. The suit filed by Sumer Chand Bhatt for declaration in the

year 1980 was also dismissed by the civil court vide judgment dated 27.11.10.86. On 2.8.2003 respondent No. 3 filed an application under

sections 195 and 340 of the Code before Shri P.R. Sharma, the then Judicial Magistrate First Class, Chandigarh who was the Presiding Officer of

the successor court of Ms. Gurvinder Kaur who had decreed the suit. The allegations made in the application were that the petitioner had made

deliberately wrong statement and thereby committed an offence punishable under sections 193, 199 and 200 IPC. Learned Civil Judge (Junior

Division)-cum-Judicial Magistrate First Class, Chandigarh fixed the case for preliminary evidence on the same day i.e. 2.8.2003. In the statement

recorded, statement in chief and cross-examination of the petitioner was also placed on record. On 19.3.2004 on the basis of the complaint filed

by respondent No. 3 and the evidence brought on record a criminal complaint was drafted u/s 340 of the Code and sent to the learned Chief

Judicial Magistrate, Chandigarh for prosecuting the petitioner.

As already discussed above, the appeal filed by the petitioner u/s 340 Cr.P.C. was dismissed by the learned Additional Sessions Judge,

Chandigarh.

The petitioner has sought quashing of criminal complaint on the ground that the learned Magistrate did not conduct any inquiry before filing the

impugned complaint against the petitioner. The petitioner also seeks quashing on the plea that the petitioner was not given hearing at the time of

inquiry. The petitioner further seeks quashing of complaint on the ground that preliminary requirement u/s 340 of the Code before filing the

complaint is that a specific finding has to be recorded to the effect that it was expedient in the interest of justice to file a complaint u/s 340 of the

Code. In the order dated 9.3.2004/11.3.2004 or in the complaint no specific finding has been given that it was expedient in the interest of public

justice. Reference was made to the order dated 9.3.2004 which reads as under :

Present: Complainant with counsel.

Arguments heard. Vide separate complaint of even date, the file is sent to the court of Ld. CJM, Chandigarh for 11.3.2004. Criminal Ahlmad is

directed to send the file to that court immediately. The complainant is also directed to appear before that court on 11.3.2004.

It is also the case of the petitioner that the civil suit was decided against Sumer Chand Bhatt and the appeal was also dismissed with slight

modification and therefore, it is claimed that the complaint amounts to misuse of the process of the court. The complaint attached with the order

referred to above reads as under:

The applicant-complainant was defendant in the said case and accused conducted the said case on behalf of the plaintiff i.e. Servants of People

Society. Accused Onkar Chand appeared as PW1 for the plaintiff in the said case.

The brief facts of that case are that the plaintiff society vide suit for compensation and damages to the tune of Rs. one lac with interest and cost

for the alleged unauthorized occupation of residential premises of Lajpat Rai Bhawan, Sector 15, Chandigarh by Sumer Chand Bhatt.

As per the version of plaintiff society in that civil suit deceased Sumer Chand Bhatt was only life member of the plaintiff society from 1969

onwards and due to it was entitled for the accommodation and other benefits. It was alleged that the deceased defendant resigned from the plaintiff

society on 17.3.1980 and his resignation was accepted by the Executive Council of the plaintiff society in the Executive Council Meeting held on

17.3.1980.

In the reply Sh. Sumer Chand Bhatt stated that he was the member during which the plaintiff society is claiming damages so under constitution of

the plaintiff society, he was entitled for free accommodation. It was also sated that even alleged resignation letter was never accepted by the

plaintiff society and Sh. Sumer Chand Bhatt always remained life member of the plaintiff society.

During the course of evidence accused Onkar Chand gave totally wrong statement intentionally in the court knowing the same that he is making

false statement on oath. This fact is corroborated by Nisheeth Bhatt CW1 who is son of Sumer Chand Bhatt. He has produced the certified copy

of the evidence of the accused PW1 in that civil suit which is Ex.C-1 to Ex.C-3. He has also produced copy of the proceedings of the meeting of

the Executive Council of the plaintiff society held on 17.3.1980 Ex.C-4. There was no resolution accepting the alleged resignation of Sumer Chand

Bhatt in the meeting of Executive Counsel from 1980 to 1983. This fact is stated by Satya Pal Grover, Secretary of plaintiff society in his statement

as DW2. The certified copy of which is Ex.C-5. Sh. Khem Chand, Sr. Assistant of plaintiff society appeared in other case Suit No. 283/85 which

was filed through accused and Sh. Khem Chand deposed that there is no resolution accepting the resignation of Sumer Chand Bhatt and there was

no resignation accepted on 16.3.1980.

Accused was always knowing that alleged resignation of Sh. Sumer Chand Bhatt was never accepted, but deliberately given false statement in

the court in order to succeed in the matter.

After going through statement of complainant CW1 on oath, along with documents Ex.C-1 to Ex.C-6, which are attached in the complaint filed,

I am satisfied that there are reasonable grounds to believe that accused Onkar Chand has given false statement in the proceedings of knowing fully

well that he was making false statement. So action be taken against accused Onkar Chand according to law. One copy of the complaint be

retained with the Ahlmad of this court.

It is, therefore, requested that accused be proceeded against the punished under the law.

Submitted please.

Sd/- (PR Sharma) HCS,

Judicial Magistrate Ist Class, Chandigarh.

List of witnesses :-

Nisheeth Bhat son of Late Sh. Sumer Chand Bhatt, r/o Lajpat Bhawan, Sector-15, Chandigarh.

P.R. Sharma, HCS, Judicial Magistrate Ist Class, Chandigarh.

Mrs. Sulakshana, Criminal Ahlmad of this court along with file.

The summoning order passed on the basis of the complaint read as under:-

This case has been received from the court of Ld. CJM, Chandigarh. Complainant is present. Complaint be registered. Since the present

complaint has been drafted by Shri PR Sharma, Ld. JMIC, Chandigarh in his judicial capacity, there is no need for him to appear in person as a

complainant and GP is appearing on his behalf. However, the complainant is at liberty to pursue his case and to appear of his own. Accused has

been summoned for making wrong statement to the court. He be summoned u/s 193 IPC and face trial for 13.5.2004.

Mr. R.S. Cheema, learned senior counsel appearing on behalf of the petitioner has sought quashing of the orders and the complaint primarily on

the ground that it is a case of non-application of mind by the court as two conditions as envisaged u/s 340 of the Code do not stand fulfilled. The

contention of the learned senior counsel, therefore, is that the Court has not expressed the opinion that it is expedient in the interest of justice that

an inquiry should be made into the offence referred to in Clause (b) of sub-section (1) of Section 195 of the Code.

In support of this contention reliance has been placed on the judgment of Hon''ble Supreme Court in the case of B.K. Gupta v. Damodar H.

Bajaj, 2002 SCC (Cri.) 1103, wherein Hon''ble Supreme Court has been pleased to hold as under:

Learned counsel appearing for the appellant urged that there is nothing on record to show that the High Court while making an enquiry u/s 340

Cr.P.C. applied its mind whether it was expedient in the interest of justice that a complaint be filed against the appellant. u/s 340 Cr.P.C., if the

court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into an offence referred to in clause (b) of sub-

section (1) of Section 195 Cr.P.C. in relation to any proceeding in that court, the court after such preliminary enquiry may direct for filing a

complaint before the appropriate court against such person.

From the above, it follows that there are two conditions on fulfilment of which a complaint can be filed against a person who has given a false

affidavit or evidence in a proceeding before a court the first condition being that a person has given a false affidavit in a proceeding before the court

and, secondly, in the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence

committed by him. It is no doubt true that the High Court has recorded a finding that the appellant has made a false statement on oath and has also

used evidence known to be false and fabricated. On a perusal of the record we do not find any material on record to show that there was any

application of mind by the Court that it was expedient in the interest of justice to make an enquiry and file a complaint against the appellant. We

have also perused the judgment in Writ Petition No. 1442 of 1983 and the judgment does not show that the Court applied its mind regarding the

second condition as to whether it is expedient in the interest of justice to make an enquiry into the false evidence given by the appellant and a

complaint is to be filed. In the absence of application of mind in regard to expediency for filing complaint against the appellant, the order passed by

the High Court directing the Prothonotary and Senior Master of the High Court to file a complaint against the appellant was vitiated.

On this short ground, this appeal deserves to be allowed. We accordingly set aside the order under challenge. The appeal is accordingly

allowed. There shall be no order as to costs.

Mr. R.S. Cheema, learned senior counsel appearing on behalf of the petitioner, thereafter contended that before passing an order or drafting a

complaint it was incumbent upon the learned Magistrate to have given an opportunity of hearing to the petitioner. In support of this contention

reliance has been placed on the judgment of this court in the case of Dr. Madan Lal Kakkar, Senior Medical Officer v. The State of Punjab, 1999

(3) AI Cri LR 751, wherein this court has been pleased to lay down as under:

The words `such court'' are of significance. It is the same court which is competent to make a preliminary inquiry against whom the offence as

mentioned in section 195, Cr.P.C. has been committed. In these circumstances, it was the learned Sessions Judge alone, who was competent to

hold a preliminary inquiry into that matter and he could not delegate the inquiry to the court of CJM and by doing so, the learned Sessions Judge

has committed an illegality which cannot be condoned. Secondly, before passing the order against the petitioners they were not heard and their

defence was not taken.

Reliance was also placed on the Judgment of this court in the case of B.S. Sandhu v. Rajinder Singh, 1986 (2) RCR 281 (P&H) wherein this

court has been pleased to lay down that the learned Magistrate is not to issue show cause notice mechanically and it is incumbent upon the

Magistrate to record his opinion that it was expedient in the interest of justice to issue show cause notice.

Reliance has also been placed on the judgment of this court in the case of Jagdish Chander Singla v. The State of Haryana, 1983 (1) CLR 89,

wherein this court has been pleased to lay down as under:

The above-said action against him has been challenged by Jagdish Chander Singla on the ground that the learned Sub Judge did not comply

with the mandatory provisions of section 340. Criminal Procedure code, in as much as no finding was recorded by the learned Sub Judge, at any

stage, that it was expedient in the interest of justice that the complaint be instituted against Jagdish Chander Singla. Besides, referring to the report,

learned counsel for Jagdish Chander Singla pointed out that neither there is an order of the learned Sub Judge summoning him for 29th September,

1977, nor after submission of the reply by Jagdish Chander Singla to the above-said show cause notice, was any order passed by the learned Sub

Judge rejecting his reply and forming his opinion that the complaint in question was required to be instituted. In short, it was pointed out that on the

record, there is nothing to indicate that the learned Sub-Judge held, a preliminary enquiry as envisaged by section 340(1) of the Code. Strength is

then sought from Chonampara Chellappan and Others Vs. State of Kerala, to the contention that in such a situation, the proceedings are liable to

be quashed.

Mr. R.S. Cheema, learned senior counsel appearing on behalf of the petitioner finally placed reliance on the judgment of Hon''ble Supreme

Court in the case of Har Gobind and Others Vs. State of Haryana, to contend that it is incumbent upon the court filing complaint to record a clear

finding regarding the exact offence which was committed by the appellant. In the absence of such finding the order filing the complaint cannot be

sustained in law.

Mr. Sanjiv Bansal, learned counsel appearing on behalf of respondent No. 3 by placing reliance on the judgment of Hon''ble Supreme Court in

the case of Pritish v. State of Maharashtra, 2002 (1) RCR (Cri) 92 : (2002) 1 SCC 233 contended that there is no requirement to afford an

opportunity of hearing to a person against whom a complaint is filed by the learned Magistrate. The contention of the learned counsel for the

respondent No. 3, therefore, was that the purpose of preliminary inquiry was not to find out whether a person is guilty or not but is only to decide

whether it is expedient in the interest of justice to inquiry into the offence.

Hon''ble Supreme Court in Pritish v. State of Maharashtra (supra) has been pleased to lay down as under:

The definition of ""inquiry"" in section 2(g) Cr.P.C. refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by

the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the

interest of justice that an enquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First

Class concerned. As the offences involved are all falling within the purview of ""warrant case"" as defined in Section 2(x) of the Code the Magistrate

concerned has to follow the procedure prescribed in Chapter XIX of the Code. The Magistrate on receiving the complaint shall proceed under

sections 238 to 243 of the Code. From those provisions it is clear that the person against whom the complaint is made has a legal right to be heard

whether he should be tried for the offence or not, but such a legal right is envisaged only when the Magistrate calls the accused to appear before

him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to hint to satisfy

the Magistrate that the allegations against him are groundless and that he is entitled to be discharged. Thus the scheme delineated above would

clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint

before the Magistrate for initiating prosecution proceedings.

There is no substance in the contention that even if there is no specific statutory provision for affording such an opportunity during the preliminary

enquiry stage, the fact that an appeal is provided in Section 341 of the Code to any person aggrieved by the order is indicative of his right to

participate in such preliminary inquiry. Section 341 confers a power on the party on whose application the court has decided or not decided to

make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court

is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford

an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions

in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those

proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused.

In any event the appellant has already availed of the opportunity of the provisions of Section 341 by filing the appeal before the High Court.

The Court at the stage envisaged in Section 340 is not deciding the guilt or innocence of the party against whom proceedings are to be taken

before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any

offence affecting administration of justice. The would be accused is not necessary for the court to decide the question of expediency in the interest

of justice that an inquiry should be held. The persons against whom proceedings were instituted have no such right to participate in the preliminary

inquiry.

Mr. Sanjiv Bansal, learned senior counsel appearing on behalf of respondent No. 3, thereafter referred to para No. 8 of the complaint to

contend that the learned Magistrate in the complaint filed has recorded a finding that it was satisfied that there were reasonable grounds to believe

that accused Onkar Chand has made a false statement in the proceedings knowing fully well that he was making a false statement. This, according

to the learned counsel satisfied the requirement of section 340 of the Code.

Mr. Sanjiv Bansal, learned counsel appearing on behalf of respondent No. 3 thereafter made reference to the judgment of Hon''ble Supreme

Court in the case of Iqbal Singh Marwah and Another Vs. Meenakshi Marwah and Another, Apex Criminal 581 : 2005 (2) RCR (Cri) 178 : 2005

(1) Apex Criminal 581 : (2005) 4 SCC 370 to contend that inference sought to be given by the learned senior counsel for the petitioner cannot be

accepted as it would render respondent No. 3 remediless. Reference was made to Para No. 23 of this judgment which reads as under:

In view of the language used in Section 340 Cr.P.C. the court is not bound to make a complaint regarding commission of an offence referred

to in Section 195(1)(b), as the section is conditioned by the words ""court is of opinion that it is expedient in the interests of justice"". This shows that

such a course will be adopted only if the interest of justice requires and not in every ease. Before filing of the complaint, the court may hold a

preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the

offences referred to in Section 195(1) (b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered

by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon

administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to person in the sense

that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in

evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of

administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a

complaint. The broad view of clause (b) (ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged

document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.

Learned counsel appearing on behalf of respondent No. 3 also made reference to the judgment of Hon''ble Supreme Court in the case of The

State of Bombay Vs. Purushottam Jog Naik, to contend that mere non-use of the words that it is expedient in the interest of justice to make an

inquiry cannot render the order or complaint to be bad as such intention can be expressed in other forms. The contention of the learned counsel for

respondent No. 3, therefore, was that reading of para No. 8 of the complaint would show that opinion as envisaged u/s 340 of the Code was

formed by the learned Magistrate while referring the complaint for trial.

On consideration of the matter, the contention of the learned senior counsel for the petitioner that it was incumbent upon the learned Magistrate

to afford hearing to the petitioner before passing an order u/s 340 of the Code cannot be accepted in view of the law laid down by the Hon''ble

Supreme Court in the case of Pritish v. State of Maharashtra. (supra).

However, the impugned order and the complaint are liable to be quashed as the order or the complaint does not show that the court had

formed an opinion whether it was expedient in the interest of justice that the complaint be filed.

Reading of para No. 8 of the complaint on which strong reliance has been placed by the learned counsel for respondent No. 3 would show

that the court had merely formed a opinion that there is material to record that a false statement was given. However, the court has not formed an

opinion as to whether it would be expedient in the interest of justice to proceed with the matter.

Hon''ble Supreme Court in the case of Iqbal Singh Marwah and another v. Meenakshi Marwah and another (supra) on which strong reliance

was placed by respondent No. 3 would itself show that it is not in every case that the complaint is required to be filed on merely commission of

offence but the court has also to record a finding that the court is of the opinion that it is expedient in the interest of justice to proceed with the

matter.

Hon''ble Supreme Court in the case of B.K. Gupta v. Damodar H. Bajaj (supra) has been pleased to hold that before initiating proceedings

wider Section 340 of the Code two conditions are required to be fulfilled first condition on being that a person has given a false affidavit/evidence

in the proceedings before the court. This part stands satisfied in view of the averments made in para No. 3 of the complaint. However, the court

was also required to record a finding that it would be expedient in the interest of justice to make an inquiry and file a complaint against the

petitioner. The second condition does not stand satisfied in the present case.

Consequently, this petition is allowed. The complaint and the order dated 12.3.2004 as well as the complaint and the order passed by the learned

Additional Sessions Judge, are ordered to be quashed.