Basant Kumar Newar Vs the State of Jharkhand

[2025:JHHC:31421]

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.688 of 2018

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Basant Kumar Newar, Aged about 73 years, Son of Late Gouri Shankar Newar, Resident of Mohalla- Caster Town, P.O., P. S. & District Deoghar.

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… Petitioner

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Versus

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The State of Jharkhand

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Dilip Kumar Newar, Son of Gouri Shankar Newar, resident of Seth Surajmal, Jalan Road, Caster Town, P.O., P.S. & District Deoghar.

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… Opposite Parties

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------ For the Petitioner : Mr. Jagdeesh, Advocate Mr. Kumar Sourav Chatterjee, Advocate For the State : Mrs. Ruby Pandey, Addl.P.P. For the O.P. No.2 : Mr. Lakhan Chandra Roy, Advocate

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the judgment dated 27.07.2017 in Criminal Appeal No.80 of 2016 arising out of Criminal Miscellaneous Case No.01 of 2014 whereby and where under the learned Additional Sessions Judge-V, Deoghar has dismissed the Criminal Appeal No.80 of 2016 filed under Section 341 of the Code of Criminal Procedure challenging the order dated 14.07.2016 passed by

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the learned Chief Judicial Magistrate, Deoghar and also to quash the order dated 14.07.2016 passed by the learned Chief Judicial Magistrate, Deoghar in

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Cr. M.P. No.688 of 2018

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Criminal Miscellaneous Case No.01 of 2014 registered on the basis of the application of the petitioner filed under Section 340 of the Code of Criminal Procedure.

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The brief fact of the case is that the petitioner filed Criminal Miscellaneous Case No.01 of 2014 against the opposite party No.2 with the prayer to conduct a preliminary inquiry and take action under Section 340(2) of the Code of Criminal Procedure. It was contended by the appellant/petitioner that dismissal of the Protest-cum-Complaint Petition No.853 of 2013, according to the appellant/petitioner, was a misuse of process of law. The appellant/petitioner claimed that the opposite party No.2 herein, claimed in the complaint of P.C.R. Case No.259 of 2009 of the court of the learned Chief Judicial Magistrate, Deoghar that the property at Holding No.354, J.B. No.149 of 3311 within Shyamganj Mouza, was the self-acquired property of his father but the opposite party No.2 herein has averred in the plaint of Title Partition Suit No.28 of 2011 that the said property was the ancestral property of the plaintiff and the defendant of the said Title Partition Suit No.28 of 2011. It was contended by the appellant/petitioner that the opposite party No.2 herein intentionally gave false evidence before the court by falsely mentioning the property to be a self-acquired property of his father and on the basis of such false information, lodged prosecution. The learned Chief Judicial Magistrate, Deoghar, after conducting an enquiry and hearing the appellant/petitioner vide order dated 14.07.2016, refused to entertain the petition filed by the petitioner and disposed of the same as not maintainable.

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Being aggrieved by the said order, the petitioner filed Criminal Appeal No.80 of 2016 which was ultimately heard and disposed of by the learned

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Additional Sessions Judge-V, Deoghar vide the impugned judgment dated 27.07.2017. It was contended by the appellant/petitioner before the learned appellate court inter alia that the learned Chief Judicial Magistrate, Deoghar has committed an error by passing the order impugned before the appellate court without making any preliminary enquiry and has also committed an error by neither rejecting the application nor initiating any proceeding under Section 340(2) of the Code of Criminal Procedure. It was also contended by the appellant/petitioner before the learned Chief Judicial Magistrate, Deoghar that the learned Chief Judicial Magistrate, Deoghar erroneously considered the statement of the appellant recorded on 14.06.2016. The learned appellate court below has formulated the following points for determination: -

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“Whether the learned trial court has committed any error in law or in fact while disposing of the Criminal Miscellaneous Case as not maintainable?”

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The learned appellate court below has considered the provision of law under Section 340(1) of the Code of Criminal Procedure and under Section 195 of the Code of Criminal Procedure. The learned appellate court also considered that P.C.R. Case No.259 of 2009 was filed in the court of the learned Chief Judicial Magistrate and the same was sent to police under Section 156(3) of the Code of Criminal Procedure, so, there was no proceeding pending in the court of the learned Chief Judicial Magistrate nor any evidence or document was ever produced in that court by the complainant of the P.C.R. Case No.259 of 2009. Hence, in the absence of any proceeding pending before the learned Chief Judicial Magistrate, Deoghar, Section 340 of the Code of Criminal Procedure has no application. The learned appellate court below also considered that the averments made in a plaint is not an evidence in terms of Section 3 of the

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Indian Evidence Act, 1872. The learned appellate court below also considered that the complainant of P.C.R. Case No.853 of 2013 filed Criminal Revision No.38 of 2016 before the learned Sessions Judge, Deoghar and which was still pending at the time of passing of the impugned order and the Title Suit No.28 of 2011 was also pending in the trial court on the date of passing of the impugned order and went on to observe that at this stage, it cannot be held that the complainant has made a malicious prosecution or that, he has adduced false evidence against the appellant/petitioner and the veracity of such statement can only be judged after conclusion and disposal of the above noted cases. Hence, it cannot be concluded that the statement of the complainant in the enquiry was false and the same was stated with an intention to ensure conviction of the appellant/petitioner. The contention of the appellant/petitioner that the learned Chief Judicial Magistrate, Deoghar has passed the impugned order without any enquiry, did not find favour with the appellate court as from perusal of the records, the appellate court could find that the learned Chief Judicial Magistrate, Deoghar has examined the appellant on oath and after considering all the relevant materials available in the record, has passed a detailed and reasoned order.

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The learned appellate court also considered the discretionary nature of the power conferred under Section 340 of the Code of Criminal Procedure and finding no reason to interfere with the order impugned before it passed by the learned Chief Judicial Magistrate, Deoghar, went on to hold that the learned Chief Judicial Magistrate, Deoghar has rightly refused to consider the prayer of the appellant/petitioner and dismissed the appeal.

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Learned counsel for the petitioner submits that the learned Chief Judicial Magistrate, Deoghar and the learned appellate court have completely failed in appreciating the import an ambit of the proceeding under Section 340 of the Code of Criminal Procedure and committed an error of law in rejecting the petition filed by the petitioner. Learned counsel for the petitioner next submits that the learned appellate court below ought not to have considered the pendency of the Criminal Revision and the Title Suit to be a ground for observing that the filing of the petition under Section 340 of the Code of Criminal Procedure was premature. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

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Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand defended the impugned order passed by the learned appellate court and submits that as none of the offences of which there is reference in Section 195 of the Code of Criminal Procedure, is made out against the opposite party No.2; hence, both the courts below have rightly rejected the petition filed by the appellant/petitioner. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that there are two conditions; only upon fulfillment of which, a complaint can be filed under Section 340 of the Code of Criminal Procedure; firstly, that a person has given a false affidavit in a proceeding before the court and secondly, in the opinion of the court, it is expedient in the interest of justice to make an enquiry against such person in relation to the offence committed by him as has

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been held by the Hon’ble Supreme Court of India in the case of B.K. Gupta vs. Damodar H. Bajaj & Others reported in (2001) 9 SCC 742 . In the case of Iqbal Singh Marwah & Another vs. Minakshi Marwah & Another reported in (2005) 4 SCC 370 , the Hon’ble Supreme Court of India has reiterated the settled principle of law that complaint under Section 340 of the Code of Criminal Procedure will be made only if it is an expedient in the interest of justice and not in every case. It is a settled principle of law that the order for preliminary inquiry under Section 340 of the Code of Criminal Procedure cannot be passed on mere asking. The Hon’ble Supreme Court of India in the case of Amarang Nathaji vs. Hardik Harshadbhai Patel & Others reported in (2017) 1 SCC 113 has observed thus in para-6:-

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“6. The mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) CrPC, having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See K.T.M.S. Mohd. v. Union of India [K.T.M.S. Mohd. v. Union of India, (1992) 3 SCC 178 : 1992 SCC (Cri) 572] ). The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case.”

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Now coming to the facts of the case, the only contention of the petitioner

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is that the opposite party No.2 in a complaint case has made an averment that the said property is the self-acquired property of his father. The complaint was referred to police. Police submitted a final report. The complainant filed a protest-cum-complaint petition in the statement on solemn affirmation in support of protest-cum-complaint petition, the petitioner supported the

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contents of the complaint. This, in the considered opinion of this Court, by itself cannot be termed as false evidence, to form an opinion for the court concerned that it is expedient in the interest of justice to initiate an enquiry into the offence of false affidavit, more so, when the criminal revision against the said order is pending before the appropriate court. As has rightly been observed by the learned courts below, the averments made in a plaint cannot be treated as evidence in view of Section 3 of the Indian Evidence Act, 1872.

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Under such circumstances, this Court do not find any justification warranting interference of this Court in exercise of its power under Section 482 of the Code of Criminal Procedure with the order impugned before this court.

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