Yogesh Saraf vs Sheetal Saraf & Another

Shivakant Prasad, J.

This appeal is directed against the judgment and order no. 1 dated 4.5.2017 in connection with Misc. Case No. 10 of 2017 arising out of Matrimonial

Suit No. 143 of 2014 pending in the Court of the learned Additional District & Sessions Judge- II, Sealdah, 24 Parganas (South) whereunder the

application under Section 340 Cr.P.C. was outright rejected on the conception that the application has been misfiled before him as the Court is not a

filing Court and has simply returned the application along with other papers to the petitioner the appellant herein for filing before the proper Court with

further direction to Bench Clerk to do the needful.

The appellant instituted Matrimonial Suit under Section 27 of the Special Marriage Act, 1954 against the respondent no. 1 before the learned trial

Court with a prayer for dissolution of marriage with the respondent no. 1 registered as Matrimonial Suit No. 143 of 2014. The said suit is pending

adjudication. On summons being received by the respondent no. 1 she started circulating communications containing scurrilous and defamatory

allegations against the appellant, both in India and Singapore, where the appellant is employed. The appellant affirmed his evidence on affidavit in the

said matrimonial suit and the respondent no. 1 was conducting the case. During pendency of the said matrimonial suit, the appellant became sure of

extramarital affairs with respondent no. 1. Having been confirmed of such fact, the appellant filed an application seeking amendment of the petition

filed in the said matrimonial suit by incorporating ground of adultery as an additional ground for his divorce and that amendment application was

allowed which is still pending for consideration.

The respondent no. 1 sent a communication dated 6th December, 2016 alleging that the respondent no. 1 during Court proceedings before Family

Court at Singapore had made over an alleged list of jewelleries and ornaments. Reply by the appellant was also communicated on January 1, 2017 and

then there have been exchange of numerous correspondences by and between the parties. It is contended that on 15.3.2017 learned advocate for the

appellant was served with a copy of an application under Section 151 CPC affirmed by the respondent no. 1 on March 6, 2017.

The appellant having gone through the said application came to learn that the respondent no. 1 has not only suppressed various communications in the

said application but had also made false and untrue statements on oath. This led to the appellant to file an application under Section 340 Cr.P.C.

alleging even the fraud practice on the Court for the suppression of the fact alleged. The said application was simply returned with the observation as

made in the judgment impugned which I have already discussed above. I am of the considered opinion that the learned trial Judge has committed

wrong in returning the application and has failed to bear in mind the provision of Section 340 Cr.P.C. which profitably may be reproduced 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 interests 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 it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance for 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 sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint

under sub-section (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 sub-section (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 or by such officer of the Court as the Court may authorise in writing in this behalf.]

(4) In this section, “Courtâ€​ has the same meaning as in section 195.â€​

Therefore, I hold that the learned trial Judge’s observation that the application was misfiled before him and it ought to have been filed before the

filing Court is absolutely erroneous and unsustainable because it is expedient on the part of the learned trial Court to have formed the opinion on

preliminary inquiry as to whether at all the offence as alleged under Section 195(1)(b) was committed and if he could find that there is no such

allegation, he could have dismissed the application but obviously on preliminary inquiry but instead learned Judge shirked his responsibility by passing

the impugned order.

In the result, this Criminal Appeal being No. 414 of 2017 is allowed. The judgment and order dated May 4, 2017 passed by the learned Additional

District & Sessions Judge- II, Sealdah in Misc. Case No. 10 of 2017 arising out of Matrimonial Suit No. 143 of 2014 is hereby set aside. A copy of

this judgment along with LCR be sent to the learned Court below with direction that trial Court will hear out the application on giving fair chance of

hearing to both the parties and decide as to whether the application under Section 340 Cr.P.C. is at all attracted or not. Urgent photostat certified copy

of this order, if applied for be given to the parties upon compliance of all formalities.