Gian Chand vs Dharam Singh

S.S. Grewal, J.

This petition is directed against the order of Special Judge, Patiala, dated 19th of December, 1991 whereby application under Section 340 of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code) for initiating enquiry against Dharam Singh, DSP (respondent) was dismissed.

In brief facts relevant for the disposal of this case are that a case against the present petitioners was registered vide F.I.R. No. 179 dated 13th of May, 1982 under Section 7 of the Essential Commodities Act (hereinafter referred to as the Act) at Police Station, Samana, for keeping in their possession four drums of diesel and one drum of kerosene oil without dealers licence. Both the petitioners were tried under Section 7 of the Act and were acquitted vide order of special Judge, Patiala, dated 9th of January, 1987.

In order of acquittal the learned Special Judge while dealing with the evidence of Dharam Singh and the application under Section 340 of the Code moved on behalf of the present petitioners observed as follows :

"Though MHC Jaswant Singh has taken this stand that he was on leave on the day of raid and the case property was not deposited with him nor he made any statement before the Investigating Officer in this behalf but strangely enough not only an affidavit of MHC Jaswant Singh regarding the deposit of the case property with him on 13.5.82 was placed on the file but also Sh.Dharam Singh deposed that he correctly recorded the statement of MHC Jaswant Singh on 18.6.82 under Section 161 Cr.P.C. regarding the deposit of the case property with him. The defence has urged that Sh. Dharam Singh tried to create false evidence and thus, he was guilty of an offence under Section 193 Indian Penal Code. In order to take action against him, the defence has also moved an application under Section 340 Cr.P.C. notice of which is being given to Shri Dharam Singh separately, because it is expedient to hold enquiry in this behalf."

Admittedly no further proceedings took place before the trial Judge. The application under Section 340 of the Code moved by the petitioners was subsequently dismissed by the successor court with the following observations:

"Sufficient material appearing in evidence was available with said Special Judge but still he did not feel any necessity for taking cognizance of the offence under Section 193 Indian Penal Code and on the face of it no enquiry is required to be conducted." It was further observed that:

"As no cognizance of the offence under Section 193 Indian Penal Code was taken against the offender/witness by the trial Court, although sufficient material was available with him and accused were acquitted of the charges on the basis of the evidence furnished by Dharam Singh DSP and now to my mind, it is too late to take any action or initiate any inquiry against the offender/witness by this Court."

Aggrieved against the order of the Special Judge, dated 19.12.1991, the petitioners have filed the present revision petition.

The learned counsel for the parties were heard.

It was frankly conceded by the learned counsel for the petitioners that no cognizance under Section 193 of the Indian Penal Code was taken against the present respondent by the learned trial court. It was submitted by the learned counsel for the petitioners that the present petitioners could have moved only application praying that complaint in writing be made by the Court against the present respondent for taking action against the respondent as contemplated under Section 195(1)(b)(i) of the Code. It was further submitted that the learned Special Judge instead of dismissing the application under Section 340 of the Code first ought to have made an enquiry concerning the commission of the offence referred to in clause (b) of subSection (1) of Section 195 of the Code.

For the sake of convenience relevant provisions of Section 195(1)(b)(i) and Section 340 of the Code are reproduced hereunder :

"195. Prosecution for contempt of lawful authority of public servant, for offences against public justice and for offences relating to document given in evidence.

1) No court shall take cognizance

a) xxx xxx xxx

i) xx xxx xxx

ii) xx xxxx xxx

iii) xx xxx xxx

(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) for 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 of some other Court to which that court is subordinate.

xxx xxx xxx

XXX XXX xxx

Section 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 of 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) xxx xxx xxx

3 xxx xxx xxx

4) xx xxx xxx"

The evidence in respect of which application for initiating proceedings under Section 340 of the Code has been moved had already been recorded by the trial court while deciding the case against the present petitioners under Section 7 of the Act. As such sufficient material was already available with the trial Court in order to take conginance under Section 193 of the Indian Penal Code against the present respondent. The learned Special Judge was justified in observing that it was to late to take any action in initiate any inquiry against the offender/witness by the said Court. The impugned order passed by the learned Special Judge dated 19th December, 1991 thus does not suffer from any legal infirmity and no interference is called for.

This petition is dismissed accordingly

dismissed accordingly.