Dismissed¶¶31

Shaikh Mushir Ahemad S/O Ahemad Sahab v. Joint Civil Judge Junior Division

Bombay HC20 Feb 2025WP/139/2025

Case brief

AI extract

What is this about?

Perjury; Section 340 of Cr.P.C.; Sections 195, 191 and 192 IPC; false statement on oath in evidence affidavit; application for initiating perjury proceedings rejected; Protection of Women from Domestic Violence Act, Section 12; PWDVA No. 33 of 2019; evidence affidavit Exh.44; cross-examination; Chajjoo Ram v. Radhe Shyam AIR 1971 SC 1367; dismissal at threshold; Bombay High Court, Aurangabad Bench; writ against Magistrate's refusal to prosecute; neutral citation 2025:BHC-AUG:5254.

What did the court decide?

The false statements alleged against the Respondent/wife in her evidence affidavit (grounds (i) to (v)) do not fall within the ambit of Sections 191, 192 and 195 of IPC. ¶¶31

Shaikh Mushir Ahemad S/O Ahemad Sahab Vs Joint Civil Judge… — Domestic Violence | Bombay HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the learned Joint Civil Judge Junior Division, Mukhed was right in rejecting the Petitioner's application (Exh.67) under Section 340 of Cr.P.C. seeking action against the Respondent wife for alleged perjury. +1 more

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Court's answer

This Court finds no substantial ground to interfere with the findings recorded by the learned Trial Court rejecting the Section 340 Cr.P.C. application.

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Ratio / Principle

The false statements alleged against the Respondent/wife in her evidence affidavit (grounds (i) to (v)) do not fall within the ambit of Sections 191, 192 and 195 of IPC.

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Key takeaways

For taking action under Section 340 Cr.P.C., the Magistrate or the Court conducting the trial must come to the opinion that the witness committed the offence of perjury contemplated under Section 195 of IPC, record findings to that effect, and then make a complaint in writing to the concerned Judicial Magistrate having jurisdiction to try the said offence.obiter¶¶26

Detailed headnote1 paragraphs

Criminal Writ Petition dismissed at the threshold. The Petitioner-husband challenged the order dated 17.10.2024 of the Joint Civil Judge Junior Division, Mukhed (Dist. Nanded) rejecting his application (Exh.67) under Section 340 of Cr.P.C. in PWDVA No. 33 of 2019, whereby he sought prosecution of the Respondent-wife for perjury under Section 195 of IPC on five alleged false statements in her evidence affidavit (Exh.44): place of the daughter's birth, residence in rented premises, bachelor degree in science, readiness for cohabitation, and absence of income. Held: the alleged false statements do not fall within the ambit of Sections 191, 192 and 195 of IPC; citing Chajjoo Ram v. Radhe Shyam, AIR 1971 SC 1367, the Court noted that before recommending action under Section 340 of Cr.P.C. the Court must satisfy itself that the person intentionally committed the offence; no substantial ground existed to interfere with the Trial Court's findings, and the Criminal Writ Petition was dismissed at the threshold.

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906WP139-25.odt

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2025:BHC-AUG:5254

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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906 CRIMINAL WRIT PETITION NO. 139 OF 2025

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SHAIKH MUSHIR AHEMAD S/O AHEMAD SAHAB VERSUS

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JOINT CIVIL JUDGE JUNIOR DIVISION

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Mr. Pandharinath R. Jadhav, Advocate for the Petitioner

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CORAM : Y. G. KHOBRAGADE, J.

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DATE : 20.02.2025

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PER COURT :-

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Heard at length the learned counsel for the Petitioner.

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By the present Petition, the Petitioner takes exception to the order dated 17.10.2024 passed by the learned Joint Civil Judge Junior Division, Mukhed Dist. Nanded below Exh.67 in PWDVA No. 33 of 2019, whereby the learned Magistrate refused to take action against the Respondent wife under Section 340 of Cr.P.C.

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The learned counsel for the Petitioner canvassed in vehemence that, the Respondent wife filed a proceeding bearing PWDVA No.33 of 2019 under Section 12 of the Protection of Women from Domestic Violence Act. The Respondent wife filed evidence affidavit at Exh.44. The Respondent entered the witness box and

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(( 2 )) 906WP139-25

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proved the contents of affidavit. Thereafter, he through his counsel cross-examined the Respondent wife. After the cross-examination is over, the Petitioner/ husband filed Exh.67 an application under Section 340 of Cr.P.C., and prayed for action against the Respondent/ wife for perjury contemplated under Section 195 of IPC on the following grounds:

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(i) The Respondent has falsely stated in her evidence affidavit that, her daughter born at village Chandola. However, birth of daughter took place in private hospital at Degloor. Therefore, the said statement is an offence under Section 191 of IPC.

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(ii) In evidence affidavit, the Respondent has stated on oath that she is residing at her maternal home but she has produce rent receipt to show that, she residing at Mukhed in rented premise. Therefore, the said statement made on oath is false, hence, it is an offence under Section 191 and 192 of IPC.

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(iii) The Respondent has made false statement on oath that, she did bachelor degree in science stream but she did Physiotherapy at Nizamabad, hence, it is an offence under Section 191 of IPC. (iv) In para No.8 of evidence affidavit, the Respondent has made a false statement about cause of action that, he being a husband not taking effort for cohabitation, however, in crossexamination, the Respondent has admitted that, she is not ready for cohabitation with the Petitioner, hence, it is an offence under

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(( 3 ))

Section 191 of IPC.

(v) The Respondent falsely stated in her evidence affidavit that, she has no source of income and tried to mislead the court, hence, it amounts to perjury, therefore, it is necessary to prosecute the Respondent wife under Section 340 of Cr.P.C.

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On 17.10.2024, the learned trial Court passed an order below Exh.67 and rejected the application. The Learned trial Court held that, the veracity of version of Applicant and authenticity of document relied on Respondent, the Petitioner/ori. N.A., would be adjudicated at the time of final adjudication. Merely, giving a narration relating to the birth of the daughter at a particular place does not have adverse impact on the trial. So also, other allegation about falsehood the statements in evidence affidavit as well as cross-examination can look at the time of final adjudication.

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Needless to say that, for taking action under Section 340 of Cr.P,C, the Magistrate or the Court which conduct the trial has to come to the opinion that, the concerned witness has committed an offence of perjury contemplated under Section 195 of IPC. Thereafter, the concerned Court required to record findings to that effect and then require to make complaint in writing to the concerned Judicial Magistrate having jurisdiction to try the said offence.

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906WP139-25

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In case of Chajjoo Ram Vs. Radhe Shyam AIR 1971 SC 1367, it is held that, before recommending action under Section 340 of Cr.P.C., the Court must satisfy that, the parties sought to be proceeded against intentionally committed the offence.

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In case-in-hand, the Petitioner/husband alleged that, in the evidence affidavit, the Respondent/wife made false statements on oath as observed in para 3 (I) to (v) does not false within ambit of Section 191, 192 and 195 of IPC. Therefore, I do not find any substantial ground to interfere with findings recorded by the learned Trial court, hence, the Criminal Writ Petition is dismissed at the threshold.

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HRJadhav

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Shaikh Mushir Ahemad S/O Ahemad Sahab v. Joint Civil Judge Junior Division

Case brief

What is this about?

What did the court decide?

Shaikh Mushir Ahemad S/O Ahemad Sahab v. Joint Civil Judge Junior Division

Case brief

What is this about?

What did the court decide?

What the court decided

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