Smt. Kamla Devi vs Dhian Chand

V.K. Mehrotra, J.—Smt. Kamla Devi has instituted this petition under Article 227 of the Constitution seeking relief in respect of an order passed by the learned District Judge, Hamirpur, on January 5, 1991 in Civil Appeal No. 4 of 1990.

In Civil Suit No. 205 of 1983 Smt. Kamla Devi and Ors. v. Amar Nath and Ors. Dhian Chand who is Respondent in the present petition, appeared as Defendants'' witness No. 4. The suit was dismissed by the learned Sub-Judge 1st class (II) Hamirpur, on March 30, 1988. Dhian Cband, according to the petitioner, perjured himself. An application was made by Smt. Kamla Devi, before the decision in the suit, u/s 340, CPC with the prayer that a complaint be made against Dhian Chand for having committed an offence u/s 183 of the I.P.C. during the course of judicial proceeding. Dhian Chand filed a reply dated June 8, 1988 to it. The learned Sub-Judge did not advert to the alleged offence u/s 193, I.P.C. having been committed by DW 4 Dhian Chand in the judgment by which he disposed of the suit. He discussed the evidence of DW 4 Dhian Chand in paragraph 9 of the judgment wherein he noticed that DW 4 Dhian Chand denied in the cross-examination that:

...due to the litigation/strained relations with the plaintiff, he is deposing falsely....

The application u/s 340, CPC was disposed of by an order dated December 1, 1989. It is a detailed order running into several paragraphs. The conclusion recorded by the learned Judge is in the following words:

...On the face of the certified copies of the judgment as referred above, it comes to light that Respondent Dhian Chand has made false statements, before the Court with the knowledge or reasons to believe that the statement/versions were false. His evidence reveals that he has not only deposed falsely to answer one question but has deposed falsely while answering more than four questions which were put to him by the Counsel of the plaintiff in Civil Suit No. 205 of 1983. Thus, having regard to the documentary evidence, I am of the firm view that the statement given by Respondent in the course of judicial proceedings on oath, the copy of which is Ex, P-7 is knowingly false and believed by the Respondent to be such Application is accordingly allowed and a separate complaint u/s 193, I.P.C. is being filed against the Respondent....

An appeal was filed by Dhian Chand against the aforesaid order. That appeal was disposed of by the learned District Judge, Hamirpur, by his order of January 5, 1991, as noticed earlier. The learned Judge has, after noticing the relevant facts, concluded, in paragraph 5 of the order, that:

...In view of the above discussion and findings above, the appeal is accepted and the order of the trial Court dated 1-12-1989 for instituting the complaint u/s 193, I.P.C. against Dhian Chand is set aside....

It is this order of the learned District Judge which is under challenge in the present petition.

The Respondent has appeared through Shri Kuldip Singh and has filed a reply. Various pleas have been taken in support of the order made by the learned District Judge. What was, however, basically urged by Shri Kuldip Singh was that the order of the learned District Judge did not merit interference by this Court for the reason that no conclusion was recorded either by the learned Sub-Judge in his order dated December 1, 1989 nor has it been found, even by the learned District Judge, that it was expedient in the interest of justice that an enquiry should he made into an offence u/s 193, I.P.C said to have been committed by Respondent Dhian Chand. As such, the order directing the filing of a complaint against Respondent Dhian Chand could not be upheld and no interference should be made by this Court with the order of the learned District Judge reversing that of the learned Sub-Judge.

Section 340(1), CPC reads:

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 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 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.

A perusal of the provision aforesaid showns that action can be initiated thereunder by the Court either suo motu or on an application made to it in that behalf. The essential pre-requisite for initiation of action is that the Court should be:

(i) of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 193;

(ii) which appears to have been committed in relation to a proceeding in that Court;

(iii) that the Court may, after such preliminary enquiry, as it thinks necessary,

(a) record a finding to that effect;

(b) may make a complaint thereof, in writing; and

(c) send to a Magistrate of the First Class having jurisdiction etc.

''The primary object to take proceedings u/s 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in Courts unsullied and pure'' Jaswinder Singh Vs. Smt. Paramjit Kaur, .

''The prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial'' Chajoo Ram Vs. Radhey Shyam and Another, . ''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''. Santokh Singh Vs. Izhar Hussain and Another,

Before directing an enquiry, by filing a complaint, the Court should come to a conclusion, on the material before it that ''any offence referred to in clause (b) of Sub-section (1) of Section 195 appears to have been committed in or in relation to a proceeding before it The Court is required to record a clear finding about the exact offence which is committed by the person proceeded against. To borrow the words of the Supreme Court in Har Gobind and Others Vs. State of Haryana, while dealing with a case u/s 476 of the Code of Criminal Procedure, 1898:

...Under the provisions of Section 476, CPC it was incumbent on the Court filing the complaint to record a clear finding regarding the exact offence which was committed by the appellants. No such finding has been recorded by the District Judge. In absence of such a finding the order filing the complaint cannot be supported in law....

In the present case this requirement was found satisfied by the learned subordinate Judge when he said that:

...the statement given by Respondent in the course of judicial proceedings, on oath, the copy of which is Ex. P-7 is knowingly false and believed by the Respondent to be such...a separate complaint u/s 193, I.P.C. is being filed....

Equally important is a finding by the Court directing the filing of a complaint, whether in the first instance or at the appellate stage, that it was expedient in the interest of justice that an enquiry should be made into an offence of the nature referred to in Section 195(1)(b), Code of Civil Procedure. In the absence of such a finding, a direction for further enquiry by filing a complaint before a Magistrate of the First Class would stand vitiated. Preponderance of judicial thinking in this country leans in favour of this view. Precedents are many. In M.S. Sheriff Vs. The State of Madras and Others, the Supreme Court observed (in paragraphs 12 and 13) that:

As there is a right of appeal we have next to consider the matter on its merits and there the only relevant consideration is whether "it is expedient in the interests of justice" that an enquiry should be made and a complaint filed. That involves a careful balancing of many factors.

The High Court has scrutinised the evidence minutely and has disclosed ample material on which a judicial mind could reasonably reach the conclusion that there is matter here which requires investigation in a criminal court and that it is expedient in the interests of justice to have it enquired into....

These observations lend support to the view that conclusion must necessarily be recorded by the Court that it is expedient in the interest of justice to direct an enquiry to be made and a complaint filed. Various High Courts have expressed themselves in favour of this view.

In Taskhir Ahmad Vs. Emperor, a learned single Judge of the Allahabad High Court observed, with reference to the provisions of Section 476, CPC read alongwith Section 195, Code of Criminal Procedure that:

To my mind, these provisions of the CPC are deliberately and carefully framed. u/s 476 the Court making the original complaint has to be satisfied first that it "appears" that an offence under Sub-section (1), Clause (b)...has been committed, and, secondly, that it is expedient in the interest of justice that an inquiry should be made into such offence. When it has come to that conclusion it is the duty of the Court to record a finding to that effect and it finally has to make a complaint "thereof"...I think that the Court has to apply its mind to whether the particular offence which appears to have been committed is one which it is expedient in the interest of justice to be inquired into and it is only of that particular offence that a complaint can be made....The statute sets out to protect people from improper and un-necessary prosecutions in respect of a certain class of offences. In order to do that it places the responsibility on the shoulders of the Court, not only of saying whether an offence seems to have been committed, but also of pronouncing whether it is in the interest of justice that that particular offence should be inquired into. There are many occasions...in which it would appear reasonable to suppose or to suspect that an offence of one of the kinds specified in the two relevant sub-clauses of Section 195 may have been committed. Yet, on one ground or Anr. of public inconvenience or public expense or delay, it is not expedient in the interest of justice that everyone of these should be inquired into...

A year later a Division Bench of the Allahabad High Court said in M. Liaqat Husain Vs. Vinay Prakash and Another, that:

...Lastly it has been contended that there is no finding that the prosecution was "expedient in the interests of justice." This contention is founded on the language of Section 476, Code of Criminal Procedure and is, we think, correct. Before a Court can start the machinery contemplated by this provision of the law against a private individual, he must be clearly told that his prosecution is in the interest of justice. Till this condition is fulfilled there can be no foundation for a proceeding of this character....

The Orissa High Court shared the view aforesaid and said in Paramananda Mohapatra Vs. The State, that:

...There are cases where though it would serve interests of justice to place a man on trial, nevertheless expediency may dictate against such prosecution. Consequently, before lodging a complaint, the Court must be satisfied that not merely the bare interest of justice is served, but also that it is expedient in the interests of justice to prosecute The Court which is lodging the complaint must be satisfied about this expediency and clearly record that jurisdictional finding before any step is taken for prosecution.

The Andhra Pradesh High Court also took the same view. In Nimmakayala Audi Narrayanamma v. State of Andhra Pradesh AIR 1970 API 119 after noticing decisions of various Courts, the principles were summarised (in paragraph 16 of the report) some of which are stated thus:

(a) It is not every case of perjury irrespective of facts and circumstances that should form the subject of an enquiry but it is only in such cases where the Courts are of honest belief and opinion, on an objective consideration of the facts and circumstances that the interests of justice require the laying of a complaint.

(b) On a plain reading of the provisions of Section 476 and In particular the words "such Court may...record a finding to that effect", there is no room for doubt that the Court should record a finding that it is expedient in the interests of justice that an enquiry should be made, as a condition precedent for filing a complaint.

(c) The provision in Section 476 relating to the recording of a finding is not merely directory but is mandatory, for, an appeal lies against the order of the Court; and u/s 476-B the appellate Court is competent either to withdraw the complaint already made or direct the complaint to be made, depending on the facts and circumstances of each case.

(d) The opinion or the satisfaction contemplated u/s 476 is an objective and not a subjective one and should be reflected in the finding recorded or the order passed by the Court and such an order must be a speaking one supported by valid and justifiable grounds to enable the appellate Court u/s 476-B to know the material on which the Court had come to such a conclusion or opinion that it was expedient in the interests of justice to launch a prosecution.

(e) Though the Court, while recording the finding contemplated u/s 476, Code of Criminal Procedure need not strictly adhere to the very language, viz., "that it is expedient in the interests of justice that an enquiry should be made," used in the Section, it must use such language that it leaves no doubt that it was a fit and proper case and it was in the interests of justice to launch a prosecution against the person or persons that committed perjury.

(f) The omission or failure to record a finding to the effect that it is expedient in the interests of justice to enquire into the offence, is not a mere irregularity curable u/s 537, Code of Criminal Procedure and it goes to the root of the matter as the Court will have no jurisdiction to file a complaint....

These principles apply with equal vigour to a case u/s 340, Code of Civil Procedure.

In K.K. Khanna and another Vs. M/s Expo Enterprises India, New Delhi and others, a learned single Judge of the Delhi High Court, relying upon the observations in Santokh Singh Vs. Izhar Hussain and Another, and after noticing the decision of the Bombay and Lahore High Courts and an earlier decision of the Delhi High Court itself, said ,in paragraph ((sic) ) that:

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 imgugned order.

Two decisions of the Allahabad High Court, wherein a slightly different view was taken, may be noticed at this stage.

In Lal Behari Vs. State, it was observed (in paragraph 20) that:

...the formation of an opinion that the prosecution is expedient in the interest of justice is a condition precedent to the preference of the complaint. The law also requires that such a finding should be recorded but the jurisdiction of the Court to prefer a complaint does not...depend upon the recording of the opinion though it is consequent on the formation of such an opinion...omission to record such an opinion is only an irregularity and does not affect the legality of the complaint....Normally the fact that a complaint is preferred is itself evidence of the fact that such an opinion has been formed and in proper cases a presumption may even be raised u/s 114 of the Indian Evidence Act....

Likewise, in Ramchandra Soti Vs. State of Uttar Pradesh, (in paragraph 9) the view taken was that, inasmuch as, the language of Section 476, Code of Criminal Procedure contemplated that the Court ''may'', after such preliminary enquiry, if any, as it thinks necessary, record a finding to ''that'' effect, it was clear that it was not obligatory upon the court to record a finding and further that the enquiry contemplated by Section 476 will not be void and will not be vitiated for failure to record the finding. Also, that the word ''that'' obviously means that the finding is to be to the effect whether or not it is expedient in the interests of justice that an enquiry should be made. Read in the context of the word ''may'', showed the optional or discretionary nature of the requirement of this Section regarding the recording of the finding.

These two decisions of the Allahabad High Court, apart from deviating from the more acceptable view expressed in the earlier decisions of that Court, over-look that an order made, in the first instance, u/s 340, Code of Criminal Procedure is subject to an appeal u/s 341, Code of Criminal Procedure and may be reversed by the appellate Court. That makes it all the more necessary, as rightly observed by the Andhra Pradesh High Court in Nimmakanyala Audi Narrayanammam Vs. State of Andhra Pradesh, that there should be an express finding by use of proper words to the effect that it was expedient in the interests of justice that the enquiry may be held by directing the filing of a complaint. If the matter were to be left to presumption, on account of the fact that a complaint had been ordered to be filed, the appellate Court would not be able to ascertain for itself the factors which led the first Court to direct that a complaint be filed. This view is strengthened by the observations contained in paragraphs 12 and 13 of the Judgment of the Supreme Court in M.S. Sheriff Vs. The State of Madras and Others, extracted in the earlier part of this judgment. In fact, way back in the year 1933 a Division Bench of the Madras High Court pithily observed in (Chilukuri) Ramayya v. Emperor AIR 1933 Mad 67 that:

...The Code lays down so as to leave no room for any doubt that the Court should record a finding that it is expedient in the interests of justice that an enquiry should be made and therefore Courts will be well advised always to make a record to that effect if that is their opinion, because most regrettable delays and waste of time sometimes arise by putting the superior Courts to the task of discovering whether they mean something which they have not written....

For the reasons aforesaid it is clear that the requirement that the Court should ''record'' a finding to that effect, enshrined in express terms in Section 340, Code of Criminal Procedure is relatable also to the fact that the "Court is of opinion that it is expedient in the interests of justice that an enquiry should be made". Also, the fact that the order is amenable to appeal u/s 341, Code of Criminal Procedure and it is open to the appellate Court to reverse the conclusion recorded by the first Court, makes it necessary that a finding should be recorded before directing that an enquiry should be made into any offence referred in Section 195(1)(b), Code of Criminal Procedure. The Court should record a finding that it was of opinion that it was ''expedient in the interests of justice and an enquiry should be made''. The finding need not reproduce the words of the provision but it should be couched in such language as to make it clear beyond doubt that the Court was of opinion that it was expedient in the interests of justice that an enquiry should be made before making a complaint thereof in writing to a Magistrate of the First Class having jurisdiction.

In the present case such a finding is not to be found in the order passed by the first Court. That order has been reversed by the learned District Judge though on other considerations. No case has been made out for interference with the order of the learned District Judge.

The petition is dismissed but without any orders as to costs.