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Judgment
Raj Mohan Singh, J—This petition has been filed by Bharat Petroleum Corporation Ltd., (hereinafter referred to as ''the BPCL'') and others seeking quashing of criminal complaint under Section 340 Cr.P.C., and notices dated 07.05.2012 issued to them by the Court of Chief Judicial Magistrate, Karnal.
Petitioners alleged that the respondent had filed a petition under Section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 for ejectment of BPCL from the land measuring 1650 sq. ft., situated at G.T. Road, Karnal, where BPCL had set up a petrol pump. The land was taken on long lease of 20 years vide registered lease deed dated 15.05.1972 w.e.f. 24.11.1967 with an option to get it renewed further for a period of 20 years. Petitioner- BPCL was given right to make construction and also to sublet without any further reference to landlord. The option for renewal was exercised by the BPCL by writing registered letter dated 16.08.1987 and as such lease remained operational.
Petitioners had also alleged that the respondent complainant filed ejectment petition during subsistence of the lease in the year 2004 on the ground of subletting for installation of ATM and thus changed the purpose for which lease was given. Secondly BPCL had ceased to occupy the land and had also effected material alterations and construction over the land without consent of the landlord. The land was also sought for the purposes of personal use and occupation.
Conditions No. 1 and 5 of the lease deed are required to be appreciated in the present context. The conditions are to the following effect:-
"1. The piece of land and premises shall be used as depot for storage and sale of petroleum products motor accessories as well as service station and or filling station, and for such purposes the Lessees shall have full liberty to make excavations therein for tanks and construct and erect thereon any buildings pumping plant(s) and accessories as may be requisite. They shall have full freedom of access over suitable approaches thereto for their workmen servants agents and customers and for the passage of lorries, carts and all other vehicles to maintain supplies and otherwise for working their pump(s).
The Lessees shall have full liberty to sublet or licence the said premises without restriction and without any further reference to the Lessor and this clause shall at all times be deemed to be the written consent of the Lessor for the purpose."
It was averred by the respondent that BPCL has ceased to occupy the land and has subletted the same for installation of ATM. The petitioners in their corresponding plea in the written statement took up the stand that the ejectment petition was not maintainable as the option for renewal was exercised vide registered letter dated 16.08.1987 and lease was still in operation, commencing from 24.11.1967 for 20 years upto 15.08.2007.
As per conditions of the lease deed lessees has every right to erect and construct any type of building in dispute as per its requirement in view of terms and conditions of the lease. Alleged factum that BPCL has ceased to occupy the land and subletted the same for installation of ATM were denied. Reliance was placed on aforesaid condition No. 1 and 5 of the lease deed.
Petitioner No. 3 while appearing in the evidence stated in his affidavit in the following manner:-
"5. That the respondent no. 4 has not ceased to occupy even an inch of the demised land/premises who is in occupation of the same and has not subletted whole or any part of the said demised land/premises for installation of ATM. There is no alleged ATM has ever been installed over the demised land/premises or any part over there."
The respondent however produced certain documents obtained by him under RTI Act from the Bank in the context of installation of ATM.
Para 14 of the judgment passed by Rent Controller as attached as Annexure P-2 is reproduced hereasunder:-
"14. It means that the lessee has the power to construct at the land in dispute for the purpose and used to drive his business. He has also competent to construct the passage for lorries, carts and other vehicles and even as per clause 5 the lessee is provided to sublet or licence the said premises without any permission from the lessor. These clauses itself sufficient to prove this fact that if any construction which is as per allegations of the petitioner was raised by the respondent that is also constructed for increasing or accelerate his business at the spot and the respondent has tried to sublet the operation of the land but he could not succeed as it is admitted fact that ATM is not working at the spot as there is no such evidence on the file. The evidence is only on the file in regard of that room was constructed by the bank to install the ATM as per RTI report Ex.PW10/A to Ex.PW10/3. Mere efforts of subletting is not sufficient to eject the respondent from the demised land. Similarly respondent has constructed the other areas just for the purpose of his business which is mentioned in clause 1 of the lease deed and he has no where violated the lease deed. There is no evidence on the file that the respondent had constructed any portion for the otherwise purpose as onus is upon the petitioner to prove this fact. So, this plea of the petitioner is hereby rejected in regard of that the respondent has sub- letted the land in dispute or impaired of the land."
After decision of the rent petition vide judgment dated 29.02.2012, the respondent filed petition under Section 340 Cr.P.C., before the Rent Controller on the plea that false statement was made by the BPCL through its Senior Manager before the Rent Controller.
Additional Civil Judge (Sr. Divn.) Karnal, exercising the powers of Rent Controller while adjudicating the ejectment petition passed the interlocutory orders in the following manner:-
"Present: Shri Gurmeet Singh Juneja, Advocate, for the petitioner.
Petition presented today. It be checked and registered. Now notice to respondents issued for 23.3.2012.
Sd/-Rajan Walia ACJ(SD), Karnal 29.2.2012
"Present: Shri Gurmeet Singh Juneja, Advocate, for the petitioner.
Notice issued to respondents not received back. The same be issued again for 28.4.2012.
Sd/-Rajan Walia ACJ(SD),Karnal 23.3.2012
"Present: Shri Gurmeet Singh Juneja, Advocate, for the petitioner.
Notice to the respondents not issued for want of PF and copies. The same be issued for 14.6.2012 on filing of PF and copies etc.
Sd/-Rajan Walia ACJ(SD),Karnal 28.4.2012"
As such notices were issued to the petitioners which were duly received by them.
It would be relevant to peruse provisions in terms of Section 340 Cr.P.C., and Section 195 Cr.P.C. The same are reproduced hereasunder:-
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 subsection (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 nonbailable 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 [or by such officer of the Court as the Court may authorise in writing in his behalf.]
(4) In this section," Court" has the same meaning as in section 195.
Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.-
(1) No Court shall take cognizance-
(a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 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 abetment 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 his behalf, or of some other Court to which that Court is subordinate.]
(2) Where a complaint has been made by a public servant under clause (a) of sub- section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate: Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
Learned Senior counsel for the petitioners submitted that Court of Rent Controller is not Court within meaning of Section 195(1)(b) of Cr.P.C., as the same has not been declared by the Haryana Urban (Control of Rent & Eviction) Act, 1973 and, therefore, complaint itself is not maintainable. He further submitted that ejectment petition itself was dismissed by the Rent Controller and on the same day, respondent filed petition under Section 340 Cr.P.C., in order to seek redressal of his personal vendetta. The offences emanating through the process of Section 195(1)(b) and (c) of Cr.P.C., are subject matter of control of the Court because of their direct bearing and impact on the judicial process. As the purity of the proceedings of Court is directly sullied by the crime, therefore, Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. Private party is undoubtedly entitled to move the Court for persuading it to file the complaint, but such party is deprived of the general right recognised in terms of Section 190 Cr.P.C., directly initiating the process. Only the Court alone is clothed with the right to complain to the exclusion of aggrieved private party.
Aforesaid phenomenon shows that the provisions in terms of Section 340 Cr.P.C., are intended to provide safeguard against criminal prosecution on insufficient grounds. Revengeful and false desire of the private party is outrightly kept at bay in order to save precious time of the Court. The process of Section 340 Cr.P.C., cannot be used in routine and in stereotyped manner. The indiscriminate use of process would make it blunt. Gravity of false statement, the circumstances in which such statement is made, the object of making such statement and its tendency to impede and impair normal flow of the course of justice are necessary considerations, when the Court would decide on the propriety of filing complaint for perjury under Section 340 Cr.P.C.
Every incorrect or false statement does not ipso facto make it necessary on the part of the Court to order prosecution. A judicial discretion has to be exercised by the Court on the basis of sound principles of law emanating from relevant circumstances, when the Court determines the question of expediency. Personal revenge and vindictive mind set of the private party cannot be utilised to forge prosecution in larger interest of the administration of justice. In nutshell Court has to exercise its judicial discretion in glaring cases of deliberate falsehood when there is likelihood of conviction.
Learned Senior counsel for the petitioners by relying upon 1986(2) RCR (Crl.) 281, B.S. Sandhu v. Rajinder Singh, 1987(2) RCR (Crl.) 433 , Mrs. Gurvinder Gaur Vs. Surya Agencies and Another, (2009) CriLJ 3715 Santokh Singh Vs. Izhar Hussain and Another, AIR 1973 SC 2190 : (1973) CriLJ 1176 : (1973) 2 SCC 406 : (1973) SCC(Cri) 828 : (1974) 1 SCR 78 and another contended that before issuing notice in complaint under Section 340 Cr.P.C., Magistrate was required to record his opinion that it was expedient in the interest of justice to issue show cause notices to the petitioners. A preliminary inquiry has to be conducted and thereafter finding has to be recorded that it was expedient in the interest of justice that a complaint under Section 340 Cr.P.C., be filed against the accused.
Recording of finding in the context of expediency is a condition precedent for issuing show cause notice to the accused. The Court must satisfy itself before issuance of notice to the accused that the offence as contemplated appears to have been committed by the accused and for that it is expedient in the interest of justice that it should be enquired into. In the absence of such satisfaction, there is no justification with the Court to issue notice to the person against whom application under Section 340 Cr.P.C., has been moved by the complainant. Apparently the Court of Rent Controller had not found any prima facie case against petitioners for launching prosecution under Section 340 Cr.P.C. Had there been such a finding recorded by the Rent Controller in that eventuality holding of preliminary enquiry could be obviated. Since the present application has been made by the private party, therefore, Court was under legal obligation that before issuance of notice, Court should have satisfied itself on the basis of facts and circumstances about the desirability of launching prosecution against the accused.
According to learned Senior counsel for the petitioners, issuance of notices without conducting preliminary enquiry is not legally sustainable. He further relied upon K.J. Wadhan and others Vs. Dilar Singh, (2005) 4 RCR(Criminal) 999 to contend that every incorrect or false statement does not make it incumbent upon the Court to order prosecution. The view expressed by the Hon''ble Apex Court in Santokh Singh''s case (supra) was followed in the aforesaid case.
On the other hand learned counsel for the respondent strongly opposed arguments of the petitioners on the ground that the petition is not maintainable being pre-mature as the Court has not yet formed opinion to proceed against the petitioner for the offences for giving false evidence in terms of Sections 193 to 196 IPC and to proceed in accordance with Section 195(1)(b) Cr.P.C. According to learned counsel, the Court in order to arrive at such conclusion while holding preliminary enquiry issued notices to petitioners in order to provide opportunity of hearing and thereafter required opinion will be formed by the Court. He further submitted that had the Court formed opinion and made a complaint then order forming such opinion and filing of complaint would have been appealable under Section 341 Cr.P.C.
I have considered rival submissions of the parties.
Plain reading of Section 340 Cr.P.C., and its sub-clauses would indicate that the Court is required to consider that when an application is made before it whether the circumstances warrant a finding to be recorded that it is just and expedient in the interest of justice that the matter should be enquired into by the Magistrate.
The issuance of notice to the accused has to be preceded by recording of such opinion of expediency in the interest of justice. Since the application was made by private party, therefore, the Court would have been well advised to direct the complainant to place before it facts and circumstances which could possibly satisfy the Court about desirability to launch prosecution against the accused. Direct issuance of notice to the accused in the absence of such material having been placed before the Court, in considered opinion of this Court is not justified.
As regards the plea of Rent Controller not being a Court within the meaning of Section 195 Cr.P.C., is concerned, this Court leaves the aforesaid plea open as the Court intends to interfere on the plea of issuance of notices for want of expediency for the same.
In the light of aforesaid discussion as made above, interlocutory orders dated 29.02.2012, 23.03.2012 and 28.04.2012 passed by Additional Civil Judge (Sr. Divn.) Karnal and notices dated 07.05.2012 (Annexure P4 Colly) are hereby quashed. It is however, clarified that passing of this order does not preclude or debar the Subordinate Judge from proceeding with the case in accordance with law.