KIRTI BHUSHAN MISHRA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) The present revision has been preferred by the revisionist, challenging the order dated 16th May 2019, as rendered by the learned Additional Family Court, Roorkee District Haridwar, wherein the learned Family Court, while considering the Application, preferred by the revisionist herein by invoking the provisions of Section 340 Cr.PC, the same has been rejected by the impugned order in question holding thereof that the offence as contended by the revisionist to have been carried at the behest of the respondent was by way of filing a false affidavit, with a false assertion in it, it would amount to commission of an offence under Section 340 of Cr.P.C. and the Court ought to have taken cognizance to it and the proceedings after compliance of the procedure contemplated under Section 195 (1) ought to have been initiated the proceedings against the respondents.

(2.) This plea of the revisionist did not find favour with the Court and the Court, after considering the application under Section 340 Cr.PC and the rival contention raised by the respondent came up to the conclusion that looking to the averment which has been made in the pleadings and the counter pleadings filed by the respondent, the averments contained therein do not satisfy the conditions for initiation of the proceedings under Section 340 of Cr.PC until and unless application satisfies the conditions contained under Section 195 (1) to be read with Section 195 (1) clause (b) of Cr.P.C.

(3.) As per the finding(s), which has been recorded by the Court while rejecting the application under Section 340 Cr.P.C. the Court has held that in case if any concealment or placement of a fraudulent document has been made by the respondent, then it is absolutely open to the Court to take into consideration those documents in the light of the provisions contained under Section 172 of Cr.P.C. to be read with Section 178 of Cr.P.C. and draw a proceedings for convicting a person for the commission of offence under Section 340 of Cr.P.C. But, this Court is of the view that any order which is likely to be passed under Section 340 of Cr.P.C, since it will have a bearing on the conduct of the person against whom the proceedings have been drawn and on its establishment of offence after resorting to the proceedings under Section 195 and if the offence is made punishable under Section 172 to be read with Section 178, in such an eventuality, the person concerned against whom the proceedings under Section 340 of Cr.P.C. is being drawn, he has had to be provided with ample of opportunity to defend himself as it is not that merely because of filing of an application under Section 340 Cr.P.C. based upon certain set of averments made by the applicant that in itself will constitute to be a foundation for the Family Court to initiate the proceedings under Section 340 of Cr.P.C., the application for drawing proceedings under Section 340 of Cr.P.C. should have same logical foundation and reasoning based on the material on record for invoking the said provision.