Munshi Asrafur Rahaman vs Munshi Rafiqul Rahaman @ Moyna, and Others

S. Ahmed, J.—This Criminal Motion was disposed: of by me by an order dated 8th August 1986. In this Motion one Bishnupada Pal was

opposite party No. 4. The Motion concerned an order passed by the learned Magistrate directing the petitioner to recover an amount of

Rs.54,000/-from the Receiver Oposite Party No. 4 appointed in the said proceedings through Civil Court. Against that order this court was

moved. The court directed that in terms of section 431 of the Cr.P.C. the amount be recovered by levy as a fine by the Magistrate himself. Against

the said order opposite party No.4 moved the Supreme Court of India and the Special Leave appliction being No. 2283 of 1987 was dismissed.

Munshi Asrafur Rahaman the petitioner has now come up with an application u/s 340 and 195 read with Section 482 of the Cr.P.C It is alleged

that opposite party No. 4 Bishnupada pal was appointed Receiver by the learned Executive Magistrate, Arambagh on 30.11.78. Mr. Pal agreed

to act as. such Receiver. Learned Magistrate communicated his order of appointment to Sri Pal on 8th December 1978. Thereafter the said Mr.

Pal by his letter dated 13.12.78 informed the respective parties including this petitioner intimating his appointment as Receiver and directed all

parties to co-operate. This communication is annexure ""C"" to the petition. After appointment he regularly functioned as Receiver and made all

necessary arrangements for cultivation and harvesting the disputed lands. In this proceedings he appeared before this Court and filed his affidavit in

oppposition. It was submitted that the Receiver was not ill and confined to bed. His age is not 77 years as alleged in his affidavit in opposition. A

copy of Voter List has been annexed as annexure ""C"" to indicate his age. On 15.6.79 and 10.8.79. Pal brought to the notice of the Ld. Executive

Magistrate, Arambagh that the first party Munshi Rahaman forcibly cultivated the suit lands by violating the Court''s order. On 19.10.84 the Ld.

Executive Magistrate found that the petitioner was in-possession of the disputed properties on the date of initiation of the proceedings and was

entitled to retain such possession until evicted by due process of law. On 29.10.84 the petitioner filed an application before the Ld. Executive

Magistrate for direction on the Receiver including Mr. Pal to pay Rs. 54,000/- being the money value of different produces retained by the said

Receiver upto 1983. Mr. Pal did not submit his accounts since his appointment. In spite of repeated reminders by the Ld. Magistrate he did not

appear. On several dates he applied for time. Mr. Pal did not appear, even after service of notice by registered post. The Ld. Magistrate then

directed the said Receiver Mr. Pal to pay Rs.54.000/- to the petitioner. In his affidavit in opposition Mr. Pal has deliberately made false statements

to mislead this court in a judicial proceeding pending before him. According to the petitioner by doing so Mr. Pal has committed an offence

punishable u/s 193, 199 & 200 of the I.P.C.

The petitioner has filed this application for holding an enquiry as contemplated by Section 340 of the Cr. P. O The petitioner was directed to

serve a copy of this application on the opposite party Mr. Pal. He entered appearance and has filed an affidavit in opposition. The substance of his

affidavit in opposition is that he never made any false statement and has denied all the allegations made by the petitioner on this court. He further

took the plea that since at the time of the disposal of the revisional application the court did not come to a finding that the statement made by him in

his affidavit in opposition was deliberate falsehood. The court is not now competent to hold an enquiry U/s. 340 read with Section 195 of the Cr.

P. C.

Mr. Dey, Learned Advocate appearing for the petitioner submitted in the affidavit in opposition in Criminal Revisional No. 148 of 86 (stated on

oath in paragraph 391) that the order appointing him was never acted upon and he never took charge as a receiver. He further stated that he had

no capacity to move being an old man of 11 years and it was impossible on his part to function as receiver. These statements are utterly false and

this would be evident on perusal of the records of the case. Mr. Pal by his letter dated 13.12.78 intimated all the parties about his appointment as

Receiver, it will also appear from the said list he was aged about 59 years. Mr. Pal stated in his affidavit in opposition that he never acted as a

Receiver nor took charge as a receiver, it will appear from the records that he has lodged complaint on 15.6.79 and 10.8.79 regarding cultivation

of the disputed lands. It will appear that on 7.12.83 Mr. Pal disclosed his age as 72 years whereas on 10th July, 1986 when he filed his affidavit in

opposition he claimed that his age was 79 years. On the basis of these statements Mr. Dey claims that it will prima facie appear that the opposite

party Mr. Pal has deliberately made false statements in his affidavit in opposition and thereby an enquiry after the proceedings in relation to which

the offence alleged has been committed is disposed of.

It will appear that in section 340(1) it has been laid down that the court may exercise the power under that section only at the conclusion of an

enquiry or trial at the time of delivery of judgment or order. No such words of limitation appear in section 340(1). it, therefore, follows that the

court may make a preliminary enquiry and then make a compliant U/s. 340(1) not only at any stage of the enquiry or trial in which the offence of

giving false evidence has been committed but also at any time subsequent to the termination of that enquiry or trial, provided the court is of opinion

that the action should be taken in the interest of justice. Therefore, 1 am unable to find am- substance in the contention made by Mr. Dasgupta that

the enquiry cannot be held as the proceeding has already been disposed of.

Coming to the merits of the application and on perusal of the papers it prima facie appears to me that the opposite party Mr. Pal did deliberately

make false statement in his affidavit in opposition which was filed in this court. The affidavit in opposition is a piece of evidence in the proceedings

in question, if it can be found that the affidavit contains false statement and gave false evidence as defined in section 191 of the I.P.C. It has to be

held that prima facie there is a strong case against the opposite party Mr. Pal of committing an offence punishable U/s. 193, 199 & 200 of the

I.P.C.

I have noted the conduct of the opposite party no. 1 in that he had deliberately tried to disregard the order of the court and in justification has

taken pleas which may be found to be false. Such attempt is very much reprehensible in nature. in the interest of justice, offences, if any, committed

by Mr. Pal in this case. should be brought to book.

Having heard the learned advocates for the parties looking into the materials before me that it appears to me that offence referred to in clause(b)

of Section 195(1) of the Code have been committed in relation to this proceedings, in respect of evidence given by the opposite party Mr. Pal in

the form of an affidavit in opposition filed in the revisionsal case. Accordingly, I consider it necessary to make a complaint before the Learned

Chief Metropolitan Magistrate, Calcutta for offences punishable U/s. 193, 199 & 200 of the I.P.C. Accordingly, in terms of Sec, 340(3)(a) I

direct the Registrar of Appellate Side of this Court to lodge the complaint and sign the same. For caution I make it clear that I have not arrived at a

finding that Mr. Pal has committed the offence alleged. It is open for the Learned Magistrate taking cognizance to go into the matter and arrive at

an independent finding on the basis of materials that might he produce before him. Application disposed of.