Prem Nath vs State of Haryana

M.M Punchhi, J.

This is a petition under section 482 of the Code of Criminal Procedure. The facts giving rise to if are these.

The petitioner Prem Nath in the year 1973 was faced with a claim of maintenance under section 125, Cr.P.C. at the instance of Kaushalya Devi respondent No. 1. Besides claiming maintenance for herself. She claimed maintenance for her minor daughter Kumari Surita Rani. The judgement of Shri N.S. Rao, Sessions Judge, Ambala, rendered in Criminal Revision No. 75 of 1975, now placed on record, reveals that Kaushalya Devi respondent based such claim on the premises that earlier in 1948 she stood married with one Banarsi Dass who died leaving her as widow with three children and that later she had married the petitioner from whose loins she had given birth to Surita Rani. The Chief Judicial Magistrate, Ambala, negatived her prayer partially vide his order dated 7.11.1975. He held that it was not proved that marriage between Kaushalya Devi and Prem Nath had taken place. However, he come to the view that they had otherwise cohabited with each other and Sunita Rani was their offspring. He thus granted Surita Rani maintenance as an illegitimate child of the connection. Revision petition filed by Prem Nath petitioner was accepted on 15.3.1977, order whereof has been referred to earlier. The learned Sessions Judge took the view that it was not proved that Kumarai Surita Rani was born from the loins of Prem Nath. The claim of Kaushalya Devi in those proceedings was supported by respondent 2 to 4 who were said to have helped Kaushalya Devi to deliver the child Surita Rani and the claim was negatived by the learned Sessions Judge because Prem Nath could successfully prove that on or about the date of the alleged birth of Surita Rani, he was from 17.9.1970 to 6.4.1971 confined as under trial in Central Jail, Ambala, and the claim of the witnesses (respondent 2 to 4) that he was present at the time of the birth of Surita Rani was totally false.

The petitioner aggrieved by the action of the respondent in furthering and supporting the false claim of marriage can parenthood filed an application under section 195, Cr.P.C. in the Court of Shri A.S. Garg, Chief Judicial Magistrate, Ambala on 3081977 against the four respondents. The learned Magistrate summoned the respondent entering upon an inquiry under section 340 of the Code of Criminal Procedure. Some evidence was recorded therein but as the Zimini orders show the applicant Prem Nath started being refererd to as the complainant and the respondents as accused. The matter went on till 17.1.1979 when the Court heard arguments and fixed the case for orders on 19.1.1979. On 19.1.1979, the successor of Shri A.S. Garg adjourned the case for hearing additional arguments on 2.2.1979. Additional arguments were heard on that day and the case was taken up on 3.2.1979. On that day, he recorded the statement of the petitioner which is to the following effect :

"I had filed an application before the court for filing a complaint against Kaushalya Devi, Bimla Rani, Norati Devi & Phagu Ram for having committed the offences under sections 193, 196, 209, 463, 465 and 471 I.P.C., in the course of the proceedings u/s 488 Cr.P.C. initiated by KaushalyaDevi. However, after the evidence was adduced by me, the court vide its order dated 14.12.1977 finding a prima facie case against the accused under sections 193, 196, 463, 465, 471, I.P.C. summoned them there under. There was no complaint before the court and in view of these circumstances, I withdraw the petition because Kaushalya Devi etc. could not be summoned as accused at that stage. I reserve to myself the right to take appropriate proceedings against them in accordance with law.

Sd/ Baryam Singh, Advocate

Sd/ Prem Nath"

To take the cue back, Shri Garg had vide order dated 14.12.1977 ordered the accused to be summoned for the afore referred offences in his arriving at a considered view that prima facie case has been made against them. That was the glaring error committed by him for there was no complaint before him and hence there was no accused before him to be summoned. The error seems to have been pointed out to his successor Shri B.R. Gupta during the course of arguments and he as is plain from the record, adopted the device of letting the petitioner own the blame and recorded his statement to that effect. The error was that of the Court and not of the petitioner in any event. He then passed the following order on 3.2.1979:

"In view of the above statement of the petitioner, these proceedings are dropped. The bail bonds of the respondent are discharged. It shall be upon to the petitioner to have recourse to the appropriate remedies available to him under the law of the land. Similarly, it shall be upon to the respondent to take all objections available to them in accordance with law. The file be consigned to the record room."

In this spirit of plea bargaining, he entertained another application a few days thereafter on 20.2.1979. Proceedings went thereon as well. Mr. B.R. Gupta in the meanwhile got transferred. His successor Shri K.C. Gupta then on 23.11.1981 took the view that since the petitioner had withdraw his application and the Chief Judicial Magistrate had dropped the proceedings, therefore a new application could not lie. Shri K.C. Gupta thus put a final seal on the application of the petitioner. The petitioner failed in his attempt to get revised the said order before Shri R.P. Bhasin, Additional Sessions Judge, Ambala. The revising Court was actuated by the fundamentals on the subject and it took the view that prosecution for perjury should only be ordered in those cases where perjury appears to be deliberate and conscious as also that conviction was reasonably probable or likely. That view of the learned Additional Sessions Judge has been challenged laying particular focus on the errors of all the Chief Judicial Magistrates who had dealt with the matter.

It is painful to note the manner in which the subordinate courts have dealt with the matter. What Shri A.S Garg had done vide order dated 14.l2.1977, summoning the respondent as accused persons, and trying them as if there was complaint before him, was utterly illegal. It is not that he was ignorant about it that there was no complaint before him. Perse an application under section 195, Cr.P.C. alone was pending before him. The error was committed by him to say the least, in complete ignorance of law. The parties were put to harassment in proceedings totally unwarranted. When the turn of his successor Shri B.R. Gupta came to undo the error his cure was worse than the disease. He fell for plea bargaining. Here again, one cannot help observing help observing that instead of keeping the application alive and ignoring proceedings commencing form 14.7.1977 onwards as noest, the application and the proceedings were allowed to be dropped. It was forgotten that the cause in the proceedings was the cause of the Court itself. It alone had to be the complainant in the eventuality. When the proceedings recommenced the successor. Shri K.C. Gupta resorted to technicalities in dismissing the second petition. The way these proceedings have gone on leaves one agitated. Such instances bring the administration of justice in disrepute. It was expected of the learned Magistrate to have been careful in the proceedings to further the cause of the justice especially in a matter like this.

Yet, for what I have observed above, I find no reason to interfere in the order of the learned Additional Sessions Judge, more so when the alleged false evidence and fabrications had taken place some where between 8.5.1973 and 7.11.1975. More than a decade has passed. The respondents had to participate in all these proceedings for all these years. In every case there are two sides to it, the unsuccessful party is not necessarily a liar. It is not in every case that the court would opt to be complainant or to help satisfy vindictive instincts of the successful party. No doubt, the evil of giving false evidence in courts and fabrication false documents produced in courts is on the increase and needs to be effectively crushed with strong hands but starting prosecution for prejury too readily and frequently in each and every case would not be expedient in the interest of justice. The Additional Sessions Judge was right in observing that the court has to keep in mind that when it becomes the complainant the conviction of the respondent should reasonably be probable or likely. The court in such case does not equate itself with an ordinary litigant and take chances. Delay herein and other particulars are not likely to lead to the conviction of the respondents if prosecution is launched. Thus, I am of the considered view that these proceedings be now given a rightful burial.

For the foregoing reasons, this petition fails and is hereby dismissed.

Revision dismissed.