Criminal Appeal No.265 of 1999

18th November, 2000

Petitioner Counsel: Shri R.N. DHORDE
Respondent Counsel: Shri K.S. PATIL

Cases Cited:
Emperor vs. Bhatu Sadu, AIR 1938 BOMBAY 225 [Para 4,7]
Chajoo Ram vs. Radhey Sham, AIR 1971 SC 1367 [Para 4]
Santokh Singh vs. Izhar Hussain, AIR 1973 SC 2190 [Para 4]
D. Jothi vs. K.P. Kandasamy, 2000 Cr.L.J. 292 [Para 4]
Thomman vs. IInd Additional, 1994 Cr.L.J. 48 [Para 4]
Chief Justice in Ningappa vs. Emperor, AIR 1941 Bombay 408 [Para 13]

JUDGMENT

JUDGMENT :- This is an appeal under Section 341 of the Code of Criminal Procedure.

2. Brief facts, which are relevant for the decision, are that, the appellant No.4 filed a claim petition before the Motor Accident Claims Tribunal being MACT Petition No.174 of 1997. In the said petition, the appellants No. 1 to 3 were shown as witnesses. In the course of recording of evidence, the appellant No.4 produced various documents including the bills relating to expenditure for treatment as well as purchase of the medicines. However, the appellant No.4 did not examine the appellant Nos.1 to 3 as the witnesses. But the Tribunal being suspicious about the documentary evidence produced by the appellant No.4 conducted enquiry and decided to file a complaint under Sections 193, 209 read with Section 34 and Section 107 of the Indian Penal Code against all the appellants alleging fabrication of documentary evidence to support the claim of the appellant No.4 for the compensation in the said case. Accordingly, the Tribunal by its order dated 4th March 1999 in the said MACT Petition No.174 of 1997 arrived at a finding about the necessity of lodging complaint to the Chief Judicial Magistrate Jalgaon under Section 340 of the Code of Criminal Procedure in relation to the alleged offence by the appellants and subsequently lodged the complaint in the Court of the Chief Judicial Magistrate Jalgaon which has been registered as Criminal Case No.122 of 1999 wherein the appellant Nos. 1 to 3 are arrained as accused Nos.2 to 4 and the appellant No.4 has been shown as the appellant No.1.

3. The appellants in the present appeal seek to challenge under Section 341 of the Code the order of the Tribunal deciding to lodge the complaint as well as the complaint itself. According to the appellants, the entire exercise by the Tribunal in holding the enquiry and compelling the appellants to give evidence therein was itself illegal and uncalled for and, therefore such enquiry is bad in law. So also the complaint does not disclose any material to constitute offence of either giving or creating any false statement or document to justify the claim for compensation by the appellant No.4.

4. The learned advocate for the appellants assailing the order of the MACT as well as the complaint has submitted that the impugned order clearly violates the right of the appellants and, therefore, is appealable under Section 341 of the Cr.P.C. by the appellants and in that connection is sought to place reliance upon the decision of the Full Bench of this Court in the matter of Emperor v. Bhatu Sadu reported in AIR 1938 BOMBAY 225. Further, placing reliance upon the decision of the Apex Court in the matter of Chajoo Ram v. Radhey Sham reported in AIR 1971 SC 1367 and in Santokh Singh v. Izhar Hussain reported in AIR 1973 SC 2190, it is contended that it is only in the case of deliberate action on the part of the person accused of giving false evidence or making false statement is liable to be prosecuted for the offences alleged against the appellants in the absence of any such deliberate action on the part of the appellants being not disclosed from the complaint, the same is liable to be quashed. Reliance is also placed in the decision reported in D. Jothi v. K.P. Kandasamy reported in 2000 Cr.L.J. 292 and Thomman v. IInd Additional Sessions Judge reported in 1994 Cr.L.J. 48.

18th November 2000

5. Chapter XXVI of the Code of Criminal Procedure deals with the provisions as to offences affecting the administration of justice. Section 340 thereunder deals with the procedure in cases mentioned in section 195 of the Cr.P.C. Accordingly, sub-section (1) thereof provides that upon an application made to it, if the 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 of the Code, 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, record a finding to that effect, make a complaint thereof in writing; send it to a Magistrate of the first class having jurisdiction; 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 bind over any person to appear and give evidence before such Magistrate. Section 195(1)(b) provides that no Court shall take cognizance of any offence punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal 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 of any offence described in section 463, or punishable under section 471, section 475 or section 476 of Indian Penal 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 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) of the said section of the code except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

6. Section 341 of the Cr.P.C. provides for appeal against the order rejecting the complaint filed under sub-section (1) or sub-section (2) of section 340 as well as against complaint filed by the Court in terms of the provisions contained in Section 340(1) of the Code. The said section reads thus:

" 341.(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision."

7. Apparently, therefore, Section 341 visualises provisions for appeal in two situations (1) in case of refusal of complaint under Section 340(1) or (2) of the Code or in case of filing of the complaint under Section 340(1). Section 341(1) does not empower the accused persons against whom complaint is lodged under Section 340 to challenge any finding in their defence before lodging the complaint. In fact, there is no requirement of any order to be passed before lodging the complaint under Section 340 and it is only a mere finding to be arrived at by the Court as regards the necessity of filing complaint for giving false evidence or for whatever offences which are enumerated under Section 195(1)(b) of the Code. I am fortified in this view by the decision of the Full Bench in the matter of Emperor vs. Bhatu Sadu reported in AIR 1938 BOMBAY 225 (supra) relied upon by the appellants. There is no doubt that the question before the Full Bench in the said case was whether the order made by the Assistant Judge under Section 476-B of the old Cr.P.C. was an order made by a Civil Court so that the High Court's revisional powers were governed by Section 115, Civil Procedure Code or was an order made by a Criminal Court, or a Court exercising criminal powers, and power to revise such order was arising under Section 439 of the Criminal Procedure Code. However, while dealing with the said question, the Full Bench therein has observed thus :

" The learned Subordinate Judge acted under that section and made a complaint in writing. It seems clear that if that section stood alone there could be no appeal from the directions of the Subordinate judge because no order is made; the Judge merely records a finding and lodges a complaint, which is an administrative act. However, a right of appeal is expressly given by S.476-B."

Section 476-B of the old Cr.P.C. is in pari materia with the provisions contained in Section 341(1) of the Cr.P.C., 1973.

8. It is thus clear that there is no order as such is required to be passed while deciding to lodge a complaint in relation to any offence enumerated under Section 195(1)(b) or one disclosed form the enquiry held under Section 340 and what is required is only a finding to be recorded regarding giving cause for fling of the complaint in respect of the said offences. Being so, the appellants are not entitled to assail the order dated 4-3-1999 wherein a finding about the necessity of lodging of complaint was recorded. That was an order disposing of the MACT Petition No.174 of 1997. The same is not assailable in appeal under Section 341 of the Cr.P.C.

9. However this does not debar the appellants from assailing the complaint lodged under Section 340. Undisputedly the Member of the MAC Tribunal has lodged the complaint under Section 340 of the Code for offences punishable under Sections 193,209 read with Section 34 and Section 107 of the Indian Penal Code. Section 193 of the I.P.C. provides punishment for false evidence in any judicial proceedings. Section 209 provides punishment for dishonestly making false claim in a Court of justice. Section 107 speaks about abetment of offence and Section 34 speaks about acts done by several persons in furtherance of common intention.

10. The gist of the complaint lodged by the Member of the Motor Accidents Claims Tribunal is that, the appellant No.4 produced certain documents to justify his claim for compensation. The documents included hospital bill, medical expenditure relating to medicines etc. Undisputedly, the complaint discloses that all those documents were produced by the appellant No.4 himself in the Court. None of the other appellants had ever appeared in the Court, as is apparent from the complaint, to prove the contents of those documents or to support of the claim of the appellant No.4. Even assuming for the sake of argument, the said documents were prepared by the appellant Nos.1 to 3, the fact remains as is apparent from the complaint, none of the appellant Nos.1 to 3 ventured to appear before the Tribunal and endorsed the claim of the appellant No.4 by proving the contents of the said documents. In other words, the complaint does not disclose that the appellant Nos.1 to 3 had given any evidence before the Tribunal in the said case at any stage of the proceedings. Likewise, the said appellant Nos.1 to 3 also had not made any claim, leave aside false claim, before the Tribunal in support of the claim for compensation by the appellant No.4. The complaint also does not disclose that the documents which were produced by the appellant No.4 in the course of evidence and stated to have been prepared by other appellants were prepared to instigate or encourage the appellant No.4 to prepare his claim on the basis of the said documents. The complaint does not disclose that the said documents were prepared in furtherance of common intention by the appellant Nos.1 to 3 alongwith the appellant No.4 to justify the claim of compensation by the latter. In other words, as rightly contended by the learned advocate for the appellants, the complaint on the face of it does not disclose any offence either under Section 193 or under Sections 207, 209 independently or read with Section 107 and/or Section 34 of the Indian Penal Code.

11. The learned advocate for the appellants is also justified in placing reliance on two decisions of the Apex Court and that of Kerala High Court. In Chajoo Ram's case (supra) the Apex Court has held that the prosecution for perjury should be sanctioned by Courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely and that there must be prima facie case of deliberate falsehood on a matter of substance and the Court should be satisfied that there is reasonable foundation for the charge. In Santokh Singh's case the Apex Court has ruled that every incorrect or false statement does not make it incumbent on the court to order prosecution. The court has to exercise judicial discretion in the light of all the relevant circumstances when it determines the question of expediency. The court orders prosecution in the larger interest of the administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. It is only in glaring cases of deliberate falsehood where conviction is highly likely, that the court should direct prosecution.

12. The learned single Judge of the Kerala High Court (Shri K.T. Thomas, J. as he then was) in Thomman's case (supra) while dealing with the similar issue has observed thus:

" To attract the procedure, the person concerned should have intentionally given false evidence for the purpose of being used in a judicial procedure and the court should have been of opinion that it was expedient in the interest of justice to take action against him. Merely because a person gave false evidence, it is inadvisable or inexpedient to take action against him.

. . . . The gravity of the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for perjury (vide Muraleekrishna das v. I.G. of Police, 1978 Ker LT 292)"

13. As already observed above, the complaint on the face of it nowhere discloses that the appellants No.1 to 3 had intentionally given any evidence in any judicial proceeding before the Tribunal in support of the claim of the appellant No.4. It was only on the basis of the enquiry after production of the said documents that the Tribunal felt that the appellants are liable to be prosecuted. There is nothing in the complaint to disclose that there was any deliberate attempt on the part of the appellants No.1 to 3 in creating any false evidence as such in support of the case of the appellant No.4. But to the contrary, perusal of the records disclose that the appellant No.4 in the course of enquiry held under Section 340, had disclosed to the Member of the Tribunal that the bills were prepared only at the request of the appellant No.4 without any mal intention and he was repenting for the same. In this regard considering the observations in the Thomman's case that to prosecute such persons may send a wrong message that it pays to tell lie rather than disclosing the truth. It has been observed in the said case that when a person resiles from his earlier statement, whether such statement was given on oath or not, the court has to decide whether it was the earlier statement that was false. If the earlier statement was false, no witness is expected to stick to it just to escape from a prosecution for perjury. Justice Thomas has further quoted the observations of Beamount, Chief Justice in Ningappa v. Emperor, AIR 1941 Bombay 408 with full approval with the observations that the views of the Chief Justice still stand good even today after lapse of five decades. It was observed by the learned Chief Justice in the said case that :

" no doubt, a man making a statement on oath before a Magistrate under S.164 should speak the truth; but if he does not, the least he can do is to tell the truth when subsequently he goes into the witness box. To prosecute a man who has resiled from a false statement made under S.164 is to encourage him in the belief that it pays to tell a lie and stick to it. It is far better that a man should escape punishment for having made a false statement under S.164 than that he should be induced to believe that it is to his interest, however false the statement may have been, to adhere to it, and thereby save himself from prosecution. The danger of such a course leading to the conviction of innocent persons is too great to be risked"

14. Considering the law laid down by the Apex Court and the Kerala High Court in the cases referred to above and applying the same to the matter in hand and considering the provisions of law applicable to the case in hand, I do not find any case made out for complaint against the appellant Nos. 1 to 3 under Section 193 of Section 409 either read with or otherwise Section 34 and Section 107 of the Indian Penal Code and, therefore, said complaint against the appellant Nos.1 to 3 is liable to be quashed.

15. As regards the appellant No.4 is concerned, undoubtedly he had produced certain documents referred to in the complaint with intention of preparing his claim for compensation. The enquiry conducted under Section 340 of the Cr.P.C. by the Tribunal prima facie lends support to the said finding. In the circumstances therefore, as far as the appellant No.4 is concerned no interference is called for in the complaint in question.

16. In the result, the appeal partly succeeds. The impugned complaint is quashed as far as it relates to appellant Nos.1 to 3. As far as the appellant No.4 is concerned, there is no interference called for in the impugned complaint and therefore, this appeal as far as the appellant No.4 is concerned is dismissed. Order accordingly.

Appeal partly allowed.