CHAND Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard Sri V. K. S. Chaudhary, learned senior advocate, for the applicant along with Sri Rakesh Bahadur and learned Standing Counsel for the respondents. The first appeal from order No. 46 of 1985 preferred under Section 83 of Lunacy Act read with Section 341/195(4), Cr.P.C. challenging the order dated 19-10-1984 passed under Section 340, Cr.P.C. in Misc. Case No. 285 of 1982 (Madan Lal v. Sri Chand) was finally disposed of by the District Judge, Azamgarh on 18-3-1983 where the District Judge has observed that Sri Chand had filed a false affidavit indicating that Madan Lal happened to be his real brother. On that aspect the District Judge had indicated for issuance of show cause notice for institution of a criminal complaint against him. The miscellaneous application No. 205 of 1983 has been originated from the said observation in respect of the alleged false affidavit filed by Sri Chand before the lower Court. Undoubtedly Sri Chand has filed an affidavit in Misc. Case No. 285 of 1982 which is allegedly to be a false affidavit wherein he had averred that Madan Lal happened to be his real brother whereas in another litigation regarding partitions of property Sri Chand the appellant before this Court has made and categorically asserted that Madan Lal is not his brother, that litigation was pending from much before the instant proceeding in which the impugned order in question and the cognizance of alleged false affidavit was noted on this aspect learned lower Court took a view that Sri Chand has filed a false affidavit. Learned lower Court has also made observations in the order dated 19-10-1984 that learned counsel for Sri Chand had very humbly stated before the lower Court that he has not done so intentionally with a view to gain something. However, learned District Judge had viewed such averment of Sri Chand presented on affidavit that definitely it was a false statement in the knowledge of Sri Chand and has been viewed that Sri Chand has deliberately filed a false affidavit touching his relationship with Madan Lal. Learned lower Court has also noted that Sri Chand was not instrumental in drafting of the affidavit as it was got prepared by the then learned counsel engaged in that case and Sri Chand had only made a signature at the bottom of the plain paper and as a common litigant and he could not make an attempt to peruse or he could not realise the necessity of perusing the entire contents of the affidavit. According to Sri Chand he had simply put a signature under the affidavit in a blind folded manner without making any endeavourance to know the contents. However, learned lower Court has ignored these aspects in the matter and has viewed that such phenomena is uncommon and has considered that it a fit case where criminal complaint was to be filed against Sri Chand for filing false affidavit in the miscellaneous case.

(2.) According to Section 340, Code of Criminal Procedure, 1973 provides as below. 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 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,- (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 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 (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. (3) According to Sri V. K. S. Chaudhary, learned senior Advocate for the applicant, in order to prevent Section 340 the concerned Court after preliminary inquiry if any is necessarily to record the finding to the effect that a deliberate attempt initially knowingly in the blind manner has been made for gain by distorting true aspects of the matter. Sri Chaudhary, learned senior advocate for the applicant has contended that learned lower Court was under legal obligation to record a finding or to arrive at opinion that it is expedient in the interest of justice that the inquiry should be made into any offence referred in Clause (b) of sub-section (1) of S. 195 which at least committed in addition in that Court or in respect of documents produced in the proceeding in that case.