Dismissed

Ravinder Talwar v. State of U.P. and Another

Allahabad HC19 Oct 2019A482/11175/2004

Case brief

AI extract

What is this about?

The Court dismissed an application under Section 482 Cr.P.C. seeking quashing of a complaint under Sections 193, 196, 205, 209, 466, 468 IPC filed by the Registrar General for filing a false affidavit. Upholding a Division Bench order, the Court held that the impugned order substantially complied with Section 340 Cr.P.C. requirements as it reflected an opinion that inquiry was necessary in the int

What did the court decide?

The application under Section 482 Cr.P.C. was dismissed, and the impugned order dated 24.06.2000 upholding the complaint stands valid.

Ravinder Talwar Vs State of U.P. and Another — Civil Procedure and Limitation | Allahabad HC (2019)

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(A.F.R.) Reserved on 09.09.2019 Delivered on 19.10.2019

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Court No. - 34

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Case :- APPLICATION U/S 482 No. - 11175 of 2004 Applicant :- Ravinder Talwar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Samit Gopal Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Sudhir Agarwal,J.

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Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Samit Gopal, learned counsel for applicant and learned AGA for State of U.P.

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This application under Section 482 Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) has been filed by applicant- Ravinder Talwar with a prayer that proceedings of Criminal Complaint Case No. 3505 of 2000, High Court of Judicature at Allahabad through its Registrar General Vs. Ravinder Talwar and another, under Sections 193, 196, 205, 209, 466, 468 IPC, Police Station Cantt., District Allahabad, pending in the Court of Chief Judicial Magistrate, Allahabad, be quashed. A further prayer has been made to quash order dated 24.06.2000 passed by Chief Judicial Magistrate, Allahabad (hereinafter referred to as “C.J.M.”) in the above criminal complaint case.

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Facts in brief, giving rise to the present application, are that a Writ Petition No. 282 of 1989 was filed in the name of Kashi Ram son of Sri Kabool Ram Sharma through Power of Attorney Holder Ravinder Talwar seeking a declaration that U.P. Excise (Amendment) Act, 1998 (hereinafter referred to as “Amendment Act, 1998”) is ultravires. Further a mandamus was also prayed for refund of entire wholesale vending fee of foreign liquor under licence F.L.II. An affidavit in support of writ petition was sworn by one Sri Suresh Kumar Goel son of Sri Banarh Das, resident of 8/427, Kamoh Katera,

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Saharanpur being Pairokar of agent deputed by Principal.

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Contesting writ petition, Excise Authorities filed reply wherein a copy of affidavit sworn by Kashi Ram himself was appended stating that he has not authorized anyone to file writ petition in the High Court.

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Taking cognizance of this fact and observing that above affidavit shows that Power of Attorney Holder as well as deponent of affidavit, both, have played fraud with Court and presentation of writ petition amounts to filing of a false affidavit, a Division Bench consisting of Hon'ble Ravi S. Dhavan, J. (as His Lordships then was) and Hon'ble B. Dikshit, J., vide order dated 22.07.1999 directed Registrar General of this Court to file a complaint against both the above persons, namely, Ravinder Talwar i.e. applicant and Suresh Kumar Goel. Both these persons were directed to answer charge before C.J.M. and findings and result of proceedings were directed to return to High Court for conclusion of proceedings and further action under Procedure of High Court for Uttar Pradesh (Act No. 13 of 1869). Writ Petition, however, was dismissed by above judgement.

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Pursuant to above direction, a complaint got registered as Complaint Case No. 3505 of 2000 by Registrar General vide complaint dated 24.06.2000, under Sections 193, 196, 205, 209, 466, 468 IPC. C.J.M. vide order dated 24.06.2000 summoned accused persons under aforesaid Sections. The above proceedings have been challenged in the present application.

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It is contended that complaint in question is purported to have been filed under Section 195 Cr.P.C. which is not attracted; procedure and requirement of Section 340 Cr.P.C. is also not satisfied, inasmuch as, there is no finding recorded by Division Bench in its judgement dated 22.07.1999 that “it is expedient in the interest of justice to make an inquiry”; Court has not applied its mind regarding condition whether it was expedient in the interest of justice to make an inquiry

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into false affidavit given by accused applicant and in absence of such observation, Section 340 Cr.P.C. is not attracted. In support of his contention, learned counsel for applicant has placed reliance on a Supreme Court's decision in B.K. Gupta Vs. Damodar H. Bajaj and Others 2001 (9) SCC 742 .

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A short question up for consideration is “whether complaint has been made in compliance of requirement of Section 340 read with 195 Cr.P.C. or not”.

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Section 340 Cr.P.C., reads as under:-

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“340. (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,-

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(a) record a finding to that effect;

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(b) make a complaint thereof in writing;

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(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

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(e) bind over any person to appear and give evidence before such Magistrate.

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(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.

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(3) A complaint made under this section shall be signed,-

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(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

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(b) in any other case, by the presiding officer of the Court.

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(4) In this section," Court" has the same meaning as in section 195.”

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(Emphasis added)

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A perusal of Section 340 Cr.P.C. shows that first of all, it is applicable in respect of such cases which are covered by Section 195(1)(b) Cr.P.C. and thus, I reproduce above section also:-

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“195(1) No Court shall take cognizance -

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(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

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(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

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(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii),

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except on the complaint in writing of that Court, or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate”

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(Emphasis added) 11. Section 195(1)(b)(i) Cr.P.C. covers offenses under Sections 193 to 196, 199, 200, 205 to 211 and 228 IPC and, therefore, it cannot be doubted that procedure under Section 340 Cr.P.C. has to be observed. It is not the case of applicant that complaint has not been filed by competent authority. The only argument is that requirements of Section 340 Cr.P.C. are not satisfied.

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The object of Section 340 Cr.P.C. is to provide a safeguard

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against frivolous and vexatious prosecution. For taking action under Section 340 Cr.P.C. it is no doubt true that Court has to form an opinion that it is expedient in the interest of justice that an inquiry should be made for an offence referred to in Section 195(1)(b) Cr.P.C. which appears to have been committed or in relation to a proceeding in that Court.

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This Court in Syed Asadullah Kazmi Vs. Additional Magistrate 1988 (3) Crimes 330 (All) has observed that Sections 340 and 195 Cr.P.C. are closely connected and in order to have a harmonious consideration, they should be read together. An offence under Section 195(1)(b)(i) Cr.P.C. is a serious offence and relates to public confidence in the system of justice, therefore, Section 195(1)(b) should be adopted very cautiously and only when Court is satisfied that prosecution of person concerned is in the interest of justice. Section 340 Cr.P.C. commenced with words “It is expedient in the interest of justice that an inquiry should be made” and this is a guiding factor constituting a foundation for proceeding of this nature. In other words, it is only in glaring cases of deliberate falsehood where Court should direct that an inquiry should be made or complaint should be filed but this discretion has to be exercised judicially in the light of all relevant circumstances, and not with a view to satisfy personal feelings or vindictiveness. Court must be satisfied about the deliberate falsehood as a matter of substance and that there is a reasonable foundation for the charge. There may be cases where a false affidavit may have been filed or offence under Section 195(1)(b) might appear to have been committed, yet proceedings ought to be initiated only when Court is satisfied that it is expedient in the interest of justice that an inquiry should be made or a complaint should be directed to be filed.

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It is not necessary to burden this judgement with number of authorities on the subject but suffice it to refer a few very straight on

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the point.

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In B.K. Gupta (supra), learned Single Judge of Bombay High Court while deciding writ petition found that a false statement on oath was made and litigant also adduced evidence known to be false and fabricated. Exercising power under Section 340 Cr.P.C., learned Single Judge issued notice to accused to show-cause for having committed offence referred to under Section 195(1)(b) Cr.P.C.. Thereupon concerned person appeared through counsel and learned Single Judge found that incumbent had intentionally made false statement on oath and adduced evidence known to be false and fabricated, therefore, direction was issued for filing complaint before Magistrate against said person. This order was challenged before Supreme Court and it was argued that learned Single judge has not applied its mind whether it was expedient in the interest of justice that a complaint be filed against such person. Supreme Court said that there are two conditions on fulfillment whereof, a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before Court. First, such person has given a false affidavit in a proceeding before Court and secondly, in the opinion of Court, it is expedient in the interest of justice to make an inquiry against such a person in relation to an offence committed by him. Court allowed appeal after recording its finding that from record, it could not find application of mind by learned Single Judge on the aspect that it was expedient in the interest of justice to make an inquiry.

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Section 340 Cr.P.C. then came up for consideration before a three Judges' Bench in Pritish Vs. State of Maharashtra 2002 (1) SCC 253. Therein State Government for construction of a canal under Arunwati Project in 1985 sought to acquire 3.9 acres of land. Land Acquisition Officer awarded compensation of Rs. 24,000/- for entire land. Owner being dissatisfied with award went for reference under Section 18 of Land Acquisition Act, 1894 (hereinafter referred

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to as “L.A. Act, 1894”) whereon Reference Court on the basis of evidence adduced by parties increased compensation to Rs. 10,30,000/-, besides other benefits like solatium etc., vide award dated 23.04.1993. Appellant Pritish was one of the beneficiary of this award which was made on the basis of evidence adduced by parties including Pritish. Land owners still felt dissatisfied with such enhancement and moved further in appeal to High Court but it was dismissed. In 1995, some persons of locality brought to the notice of Reference Court that land owners had wrangled a whopping enhancement after playing chicanery on the Court by producing forged copies of sale deeds for supporting their claim for enhancement. The documents marked as Exts. 31, 32 and 35 were fabricated copies of sale deeds. Reference Court made inquiry and found such documents forged. It called upon relevant record from Sub-Registrar and found that documents presented before it were forged. Court thus found that appellant Pritish and one Rajkumar Anandrao Gulhane have committed offence affecting administration of justice by making forged documents. Court passed an order for filing complaint in writing against above two persons before Magistrate concerned. The person who complaint about this forgery felt that action should have been taken against some others also, hence, preferred an appeal before District Judge who passed an order on 12.08.1996 directing that complaint should be filed against five more persons besides appellant Pritish and Rajkumar Anandrao Ghulane whereagainst Reference Court has passed order. Those five persons went to High Court and got proceedings against them quashed. Pritish came to High Court filing an appeal under Section 341 and said that Reference Court has passed order in violation of principles of natural justice and made inquiry without giving any opportunity to him. Learned Single Judge repelled contention and observed that under Section 340 Cr.P.C., no opportunity is required to be given to person against whom complaint is to be filed and such

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person has no right to be heard. Same issue was raised before Supreme Court. Referring to Section 340, Court observed that basic requirement to apply Section 340 is formation of an opinion by Court that it is expedient in the interest of justice that an inquiry should be made for an offence which appears to have been committed. In order to form such opinion, Court is empowered to hold a preliminary inquiry. Even without holding such preliminary inquiry, Court can form such opinion when it appears to Court that such offence is made out in relation to a proceeding in that Court. When Court forms such an opinion, it is not mandatory that Court should make a complaint. Section 340 confers power to do so but it does not mean that Court should give a complaint but once Court decides to do so, then Court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that offence should further be probed into. If Court finds it necessary to conduct a preliminary inquiry to reach such a finding, it is always open to Court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by Court regarding its opinion. Further, preliminary inquiry contemplated is not for finding whether a particular person is guilty or not. The purpose of preliminary inquiry, if Court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed or not. Court also examined inquiry as defined in Section 2(g) of Cr.P.C. and said that observation made by Court that it is expedient to hold inquiry means an inquiry to be conducted by Magistrate. Once Court forms an opinion, whether it is after conducting preliminary inquiry or not, it is expedient in the interest of justice that an inquiry should be made into an offence, said Court has to make a complaint in writing to Magistrate of First Class concerned as such offences are all falling within the purview of warrant case as defined under Section 2(x) Cr.P.C., Magistrate concerned has to follow the procedure prescribed in Chapter XIX of Cr.P.C.. Section

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343 Cr.P.C. specifies that Magistrate to whom complaint is made under Section 340 or 341 Cr.P.C. shall proceed to deal with the case as if it were instituted on a police report. That being so, Magistrate on receiving complaint, shall proceed under Section 238 to 243 of Cr.P.C. Thus, the legal right of person against whom complaint is made to be heard, arises only when Magistrate calls accused to appear before him and not earlier thereto.

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The scheme of Statute would clearly show that there is no statutory requirement to afford an opportunity of hearing to persons against whom Court may file complaint before Magistrate for initiating prosecution for committing an offence under Section 195(1) (b) of Cr.P.C.. Having said so, it was further observed by Supreme Court that Section 340 Cr.P.C. is not to decide guilt or innocence of party against whom proceedings are to be taken before Magistrate. At that stage, Court only consider whether it is expedient in the interest of justice that an inquiry should be made for any offence affecting administration of justice.

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In M.S. Sheriff and Another vs. State of Madras and Others AIR 1954 SC 397, a Constitution Bench said that no expression on the guilt or innocence of persons should be made by Court while passing an order under Section 340 of Cr.P.C.. An exercise at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether Court could then decide on the materials available that the matter requires inquiry by a criminal Court and that it is expedient in the interest of justice to have it inquired into. This decision of Constitution Bench has also been followed by a three Judges' Bench in Pritish (supra) observing that Court when decide to make a complaint under Section 340 is not to record finding of guilt or innocence of person against whom complaint is to be made before Magistrate.

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Above authorities explain as to what is required to be done and what is the scope of consideration by Court whether an offence enumerated under Section 195(1)(b) has been committed.

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In Prem Sagar Manocha Vs. State (NCT of Delhi) 2016 (4) SCC 571, in connection with FIR No. 287 of 1999 registered as P.S. Mehrauli (Jessica Lal Murder Case), Police sought an expert opinion from State Forensic Science Laboratory, Rajasthan by letter dated 19.01.2000 on the following three questions:

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“1. Please examine and opine the bore of the two empty cartridges present in the sealed parcel.

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Please opine whether these two empty cartridges have been fired from a pistol or a revolver.

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Whether both the empty cartridges have been fired from the same firearm or otherwise.”

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Appellant Prem Sagar Manocha was working as Deputy Director of said Laboratory. He forwarded a report dated 04.02.2000 with following result of examination:

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“(i) The caliber of two cartridge cases (C/1 and C/2) is .22.

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(ii) These two cartridge cases (C/1 and C/2) appear to have been fired from pistol.

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(iii) No definite opinion could be given on two .22 cartridge cases (C/1 and C/2) in order to link firearm unless the suspected firearm is available for examination.”

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During trial before Sessions Court, New Delhi, 101 witnesses were examined for prosecution and appellant Prem Sagar Manocha was witnessed PW-95. Trial Court acquitted all ten persons. In Appeal, Delhi High Court convicted all of them vide judgement dated 20.12.2006. Conviction was also upheld by Supreme Court vide judgment in Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi) 2010 (6) SCC 1 . Anguished by conduct of some witnesses turning hostile, High Court in appeal against acquittal, conducted suo motu proceedings against 32 witnesses including appellant Prem Sagar Manocha. In respect of appellant, High Court was of the opinion that he had reflected a shift in the stand from

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written opinion and that is how, helped accused, which is an offence under Section 193 IPC. Court, therefore, directed for registration of a case under Section 340 Cr.P.C. vide order dated 22.05.2013 whereagainst Sri Manocha filed an appeal before Supreme Court. Supreme Court relied on an earlier judgement in Pritish (supra) and said that Section 340 Cr.P.C. can be successfully invoked even without a preliminary inquiry since the whole purpose of inquiry is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. Thereafter, in para-13 of judgement quoted relevant part of High Court's order and said that said order shows that High Court did form an opinion after inquiry.

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There is no magic in recording the words that “Court find it expedient in the interest of justice that inquiry should be made” but from order of Court, it should appear that Court has formed such opinion. Court also referred to an earlier Section 479-A of Code of Criminal Procedure, 1898 (hereinafter referred to as “Cr.P.C., 1898”) which became Section 340 Cr.P.C. and pointed out distinction that under old statute, it was mandatory to record a finding after preliminary inquiry regarding the commission of offence but the word ‘shall’ as it was in Section 479-A of Cr.P.C., 1898 is substituted by word ‘may’ in Section 340 Cr.P.C. as a result thereof it is no more mandatory that Court should record a finding. What is now required is only recording the finding of preliminary inquiry which is meant only to form an opinion of Court, and that too, opinion on an offence which appears to have been committed, as to whether the same should be duly inquired into.

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I find a very recent judgement in Sh. Narendra Kumar Srivastava Vs. State of Bihar and Others 2019 AIR (SC) 2675, dealing with this aspect. It is held therein that requirement of formation of opinion of Court that it is expedient in the interest of

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justice that an inquiry should be made, is with an objective that prosecution should be ordered if it is in the larger interest of administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. Court referred to an earlier decision in Santokh Singh vs. Izhar Hussain and Another (1973) 2 SCC 406 and observed that 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 Court should direct prosecution.

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Now, I proceed to examine the order of this Court whether satisfy the requirement of law as discussed above. 26. An extraordinary constitutional remedy under Article 226 was invoked by filing a writ petition under Article 226 before this Court in the name of Kashi Ram, (petitioner) but he himself did not file writ petition. Instead, it was filed through Ravinder Talwar who claims to be a Holder of Power of Attorney of Kashi Ram. Writ petition involves an important question of vires of Amendment Act, 1998 and also seeks a mandamus that entire vend fee deposited by petitioner should be refunded. State Government and Excise Department while contesting writ petition filed an affidavit of Kashi Ram son of Kabool Ram Sharma stating that he has not authorized anyone to file writ petition. Meaning thereby, a writ petition involving serious issue of constitutional validity of a Statute was filed by an unauthorized person, making false claim that he was holding Power of Attorney of Kashi Ram and authorized to file writ petition. Court prima facie found that it is a case of fraud played upon Court and it may have resulted in interfering with legislation at the instance of a person who had no authority to bring an action in writ Court. Observation of Court that this kind of fraud cannot be allowed to encourage, so as to bring any unwarranted writ petition before this Court, shows that administration of justice in larger public interest required action in

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such matter and also inquiry need be conducted against person concerned who has played fraud with Court. Court has observed that in a fraudulent manner and by filing an unauthorized writ petition with a false affidavit, an attempt was made to utilize prerogative jurisdiction of Court and to seek extraordinary remedy by claiming that legislative enactment is ultravires and also to seek refund from Excise Department and this is a serious matter.

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In my view, impugned order of Court if read as a whole, it cannot be said that Court has not recorded its opinion that it is expedient in the interest of justice that an inquiry should be made, inasmuch as, entire order of Court shows that Court found that action in question amounts to playing fraud with Court and unauthorized and unwarranted invocation of prerogative writ jurisdiction that too involving such a serious matter cannot be encouraged which shows that Court was clearly of the opinion that larger public interest required inquiry in the matter. For considering the compliance of requirement of Section 340 Cr.P.C. one has to look into substance of the order and should not expect a technical literal compliance by using the word stated in the Statute. If order shows substantive compliance and requirement of statute, such order does not require any interference.

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Hence, I do not find any substance in the argument advanced on behalf of applicant.

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No other point has been argued.

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Application lacks merits and is accordingly dismissed.

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Interim order, if any, stands vacated.

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Order Date :- 19.10.2019 Siddhant Sahu/AK

Ravinder Talwar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Ravinder Talwar v. State of U.P. and Another

Case brief

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