Allowed

Neetu Yogi D/O Shree Durga Lal B/C Yogi v. State of Rajasthan

Rajasthan HC22 Jan 2020CRLMP/3652/2019

Case brief

AI extract

What is this about?

The High Court quashed cognizance taken under Section 193 IPC by a Sessions Judge who failed to follow Section 340 Cr.P.C. procedure. Exercising inherent powers under Section 482 Cr.P.C., the court condoned the petitioner's refusal to support prosecution due to compromise and marriage, closing the proceedings against her.

What did the court decide?

Set aside cognizance under Section 193 IPC; proceedings against petitioner closed; criminal miscellaneous petition allowed.

Neetu Yogi D/O Shree Durga Lal B/C Yogi Vs State of… — Cheating and Forgery | Rajasthan HC (2020)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous (Petition) No. 3652/2019

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Neetu Yogi D/o Shree Durga Lal B/c Yogi, Aged About 27 Years, by Caste Yogi, R/o Village Singhadi Road Hindoli, Thana Hindoli, District Bundi, Raj.

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----Petitioner

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Versus

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State Of Rajasthan, Thorugh PP

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----Respondent For Petitioner(s) : Mr. R.B. Sharma Ganthola For Respondent(s) : Mr. F.R. Meena, PP

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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22/01/2020

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The petitioner, by way of this criminal misc. petition, challenges the order dated 30.7.2018, whereby while acquitting the accused under Section 376, 506 IPC, learned Sessions Judge initiated proceedings against the petitioner under Section 193 IPC and on the same day also took cognizance under Section 193 IPC and issued notices to the petitioner.

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Learned counsel appearing for the petitioner submits that the petitioner, who was the prosecutrix in the case and on account of compromise and subsequent marriage having taken place with the accused did not support the prosecution and was declared hostile in the criminal case as her statement under Section 164 Cr.P.C. has been recorded earlier, the learned Sessions Judge while acquitting the accused has initiated proceedings and took cognizance that the petitioner has committed offence under

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(2 of 4)

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[CRLMP-3652/2019]

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Section 193 IPC. However, before the cognizance could be taken under Section 193 IPC by the Sessions Judge, the procedure was required to be followed. Further, there is no complaint made under Section 340 Cr.P.C. as against the petitioner nor any proceeding has been drawn under Section 340 Cr.P.C. It is submitted that had such complaint been filed, the petitioner would have been given an opportunity at that stage.

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In support of his submissions, learned counsel has relied upon the judgment passed by a Coordinate Bench of this Court in the case of Kavita Sharma Versus State of Rajasthan : S.B. Criminal Misc. (Petition) No. 5750/2017 , decided on 10.05.2019 wherein in the identical facts and circumstances of the case, this Court has set side the order passed by the Special Judge, SC/ST (Prevention of Atrocities Cases), Alwar whereby cognizance was taken under Section 193 IPC against petitioner – Kavita Sharma, who has turned hostile during the trial.

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Learned Public Prosecutor has submitted that the petitioner has misused the criminal proceedings and compromise. It appears that she has committed an offence under Section 193 IPC.

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I have carefully considered the submissions and perused the material available on record. 6. Section 193 IPC provides for punishment for false evidence. The procedure for taking cognizance under Section 193 IPC would only be on a complaint being registered at the instance of the concerned Court where false evidence is recorded, however, the complaint has to be registered and procedure under Section 340 Cr.P.C. is required to be followed.

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

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“340. Procedure in cases mentioned in section 195.

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(3 of 4)

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[CRLMP-3652/2019]

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(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,-

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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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(c) send it to a Magistrate of the first class having jurisdiction;

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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 subsection (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 of 4)

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[CRLMP-3652/2019]

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

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From the perusal of the aforesaid Section, it is apparent that a preliminary enquiry is required to be conducted and if necessary recording of offending is to be made and a complaint thereof is to be prepared in writing, which shall be duly signed by such officer(s) of the Court, an appeal against the said proceedings also lies under Section 340 Cr.P.C. However, this Court finds that aforesaid procedure has not been followed before issuing the notices after taking cognizance under Section 193 IPC by the learned Sessions Judge. Accordingly, following the view taken in the case of Kavita Sharma (supra), this Court sets aside the relevant portion of the judgment dated 30.7.2018 wherein cognizance of offence under Section 193 Cr.P.C. was undertaken as against the petitioner.

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Taking into consideration that the petitioner has married with the accused and for the said purpose, if she has refused to give her statement and refused to support her earlier statement recorded under Section 164 Cr.P.C., it is essentially on the basis of compromise. Invoking inherent power under Section 482 Cr.P.C., the act of the petitioner is condoned in the peculiar facts and circumstances of the present case and for the said reason, the matter is not remanded back. The proceedings as against the petitioner are accordingly closed. Hence, the criminal misc. petition is allowed.

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(SANJEEV PRAKASH SHARMA),J

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SUNIL SOLANKI /19/64

Neetu Yogi D/O Shree Durga Lal B/C Yogi v. State of Rajasthan

Case brief

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Neetu Yogi D/O Shree Durga Lal B/C Yogi v. State of Rajasthan

Case brief

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