2008 ALL MR (Cri) 1777
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.N. MHATRE, J.
Shri. Suresh Shankar Kulkarni Vs. State Of Maharashtra & Ors.
Criminal Writ Petition No.1131 of 2000
11th June, 2008
Petitioner Counsel: Mr. RAJU Z. MORAY i/b V. S. TALKUTE
Respondent Counsel: Mrs. A. A. MANE
Criminal P.C. (1973), S.340 - Oaths Act (1969), S.4(2) - Accused charged with offences u/s.340, Cr.P.C. r.w. 195(1)(b), IPC - Initiation of proceedings - JMFC instead of adopting S.340 procedure by issuing proper show cause notice administering oath to accused, questioning him and coming to conclusion that he had committed offence under S.195(1)(b) - Further while he was not given any opportunity to engage a lawyer, he was allowed to be cross-examined by a lawyer who himself was a co-accused in the case - Held, procedure adopted was wholly irregular and unacceptable and was in apparent violation of principles of natural justice and procedure envisaged under S.340 - Proceedings quashed. (Paras 4, 5, 6)
Dr. S. P. Kohli Vs. High Court of Punjab and Haryana through Registrar, (1979)1 SCC 212 [Para 5]
JUDGMENT :- By this writ petition, the petitioner has sought an order quashing the process issued against him in criminal complaint No.50 of 1997 pending against him before the JMFC, Phalton. The order of the III Additional District Judge, Satara confirming the order issuing process against the petitioner has also been challenged.
A Civil Suit was filed before the JMFC, Phalton by one Popat Baburao Sadmise i.e. Respondent No.4 herein (deleted by Court's order dated 20.1.2005). An injunction was sought by him restraining the defendants in the suit from dumping soil on to the suit land. A temporary injunction was also prayed for. Both the plaintiffs and the defendants in the suit sought the appointment of Taluka Inspector of Land Records of Phalton as Court Commissioner to measure the land of the parties in order to ascertain whether a stream running through the land had changed its course. The petitioner was the TILR at the relevant time and accordingly was appointed the Court Commissioner. He carried out the orders of the JMFC, Phalton and submitted a report on 25.4.1995 indicating that the stream had not changed its course. The Court Commissioner was directed on an application made by the plaintiffs to fix the boundaries of the field with marked stones. The petitioner complied with this order as well and submitted a compliance report on 27.6.1995. A fresh application was filed on 5.5.1995 by the plaintiffs indicating that it was necessary for the Court Commissioner to verify whether the defendants had breached their undertaking by dumping soil into the stream. The petitioner as directed, inspected the spot and found that the soil had not been dumped into the stream. However, he submitted a report at the behest of Respondent No.4 and his advocate i.e. Respondent No.3 and indicating that the defendants had in fact dumped soil into the stream. The JMFC, Phalton issued notice to the petitioner calling upon him to remain present in Court. This was done after the JMFC had sought an explanation from the Sheristedar of the Court as to how there was a change in the report. When the petitioner appeared before the Court, oath was administered to him without any forewarning and his statement was recorded. The statement of Respondent No.2, a clerk in the office of the TILR was also recorded on oath. The petitioner and Respondent No.2 were cross-examined by Respondent No.3 i.e. the advocate for the plaintiff. Evidence of the Sheristedar of the Court was also recorded. By an order dated 5.4.1997, the JMFC, Phalton passed the order below Exhibit 5 in the civil suit, recording a finding on the basis of the preliminary enquiry conducted by him u/s. 340 r/w section 195(1)(b) of the Criminal Procedure Code. A complaint was lodged by the JMFC, Phalton and registered as criminal complaint No.50 of 1997 u/s.340 r/w section 195 (1)(b) of the Cr.P.C. and u/s 193 of the Indian Penal Code. Process was issued against the petitioner and respondent Nos.2 to 4. Separate appeals were filed against the order in the preliminary enquiry by the petitioner and Respondent Nos.2 to 4 before the Sessions Court. The appeal filed by Respondent Nos.3 and 4 was allowed while the appeal preferred by the petitioner was dismissed. The petitioner has therefore approached this Court for (i) quashing the preliminary enquiry held against him by the JMFC, Phalton in regular civil suit No.86 of 1995 u/s.340 r/w. 195(1)(b) of the Cr.P.C.; (ii) for quashing C.C. No.50 of 1997 pending before the JMFC, Phalton; (iii) for quashing the process issued against the petitioner in C.C. No.50 of 1997; and (iv) for quashing the judgment of the III Additional District Judge, Satara dismissing the petitioner's appeal No.41 of 1997.
3. Mr. Moray, appearing for the petitioner at the outset pointed out that although it was the case of the complainant that the second report submitted by Respondent Nos.2 to 4 in Court was forged and fabricated, no process was issued against Respondent Nos.3 and 4 and in fact their appeal against the order in the preliminary enquiry was allowed. Thus, there is no case against Respondent Nos.3 and 4 for the fabrication and submitting of false evidence. The learned advocate then submits that the preliminary enquiry could have been held by the JMFC, Phalton only in accordance with the provisions of the Cr.P.C. He points out that the procedure adopted by the JMFC was wholly incorrect and illegal and has resulted in grave injustice to the petitioner. He submits that the petitioner's fundamental rights guaranteed by Articles 20 and 21 of the Constitution of India have been violated since a statement of the accused cannot be recorded after administering him oath. Even when the statement of the accused is recorded u/s.313 of the Cr.P.C., no oath can be administered to the accused when he is examined under that section, submits the learned counsel. Apart from this, the learned advocate draws my attention to the Oaths Act under which sub-section (2) of section 4 provides that no oath can be administered to an accused in a criminal proceeding unless he is examined as a witness for the defence. The learned advocate submits that the incorrect and irregular procedure adopted by the learned JMFC, Phalton of administering oath to the Petitioner and examining him in Court, has resulted in miscarriage of justice due to which he is required to face a criminal trial.
4. In my opinion, the procedure adopted by the JMFC, Phalton is wholly irregular and unacceptable in the administration of criminal justice. The petitioner has been charged with having committed offences u/s.340 of Cr.P.C. r/w 195(1)(b) of the IPC. Section 195(1)(b) of the IPC reads as under :
"1) No Court shall take cognizance -
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Section 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
(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,
(iii) of any Criminal conspiracy to commit, or attempt to commit, or the abatement of, any offence specified in sub-Clause (i) or sub-clause (ii),
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."
The allegation against the accused is that he had fabricated a report which was directed to be submitted by the Court in the civil suit. For prosecuting the Petitioner in such circumstances the procedure to be adopted by the Court is prescribed u/s.340 of the Cr.P.C. Section 340 of the Cr.P.C. provides as under :
"340. Procedure in cases mentioned in section 195.- (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, -
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for 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
(e) bind over any person to appear and give evidence before such Magistrate.
(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.
(3) A complaint made under this section shall be signed, -
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195."
5. In the present case, the JMFC, instead of adopting the procedure for conducting a preliminary enquiry as required, has administered oath to the accused i.e. the petitioner herein, questioned him and found that he had committed the offences with which he was charged. The show-cause notice which was issued to the petitioner for remaining present in Court was not in consonance with the requirements of law which are laid down in the judgment of the Supreme Court in the case of Dr. S. P. Kohli Vs. High Court of Punjab and Haryana through Registrar, (1979)1 SCC 212. Assuming the notice was not in conformity with law, it was necessary for the JMFC to follow the principles of natural justice while enquiring into the alleged offences committed by the petitioner in the present case.
6. Besides the Court not having observed the principles of natural justice and fair play by issuing a show-cause notice and administering oath to the Petitioner, the illegality was compounded by the fact that after administering oath to the petitioner, the co-accused i.e. Respondent No.3 was permitted to cross-examine the petitioner. While the petitioner was examined and cross-examined by the co-accused, the JMFC did not bother to examine the co-accused of the petitioner by administering them oath. The petitioner was not given any opportunity to engage a lawyer but was permitted to be cross-examined by a lawyer who was one of the co-accused in this case. This in itself shows the apparent violation of the principles of natural justice and the procedure envisaged by section 340 of the Cr.P.C..