Shyam Bahadur Singh and Others vs State of U.P. and Babita Singh

Amar Saran, J.—Heard learned Counsel for the applicants and the learned Counsel for opposite party No.2 and the learned A.G.A.

The facts of this case in short compass are that the opposite party No. 2 had filed a First Information Report u/s 498-A, 494, 506 IPC and 3/4 Dowry Prohibition Act, P.S. Hussainganj, Fatehpur, in which a charge-sheet was submitted and the trial was proceeding as Case No. 1045 of 2002. In that case the applicants had filed an affidavit before the Trial Court to the effect that Smt. Sanjoo Singh whom the applicant is said to have married without divorcing opposite party No. 2 Smt. Babita, is actually the wife of Vijay Bahadur Singh, younger brother of the applicant Shtem Bahadur Singh and not the wife of Shyam Bahadur Singh. The opposite party No. 2 has filed a complaint case in the Court of Judicial Magistrate, Fatehpur, being Case No. 869 of 2004, Babita Singh v. Shyam Bahadur Singh and Ors. under Sections 193 and 120B IPC. After examining the witnesses under Sections 200 and 202 Cr.P.C. the learned Judicial Magistrate, Fatehpur was pleased to summon the applicants by an order dated 10.5.2007.

Aggrieved by the said order, the learned Counsel for the applicants submits that in view of Section 195(b)(i) no Court shall take cognizance of any offence punishable u/s 193 IPC except on a complaint in writing of the Court or of some other Court to which that Court is subordinate.

In the present case, no complaint had been made by the Court concerned before passing the impugned summoning order dated 10.5.2007.

Learned Counsel for the complainant submitted at this point that cognizance had been taken in the matter by the Judicial Magistrate, Fatehpur before whom case No. 105 of 2002 was pending, in which the applicants are said to have filed allegedly false affidavits. I may mention that the procedure prescribed u/s 340 of the Code of Criminal Procedure is that when upon an application made to the Court or otherwise, the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any of the offences mentioned in Section 195(1)(b) Cr.P.C. in respect of the proceedings pending in that Court, the said Court can after a preliminary inquiry record a finding to that effect; make a complaint thereof in writing and send it to a Magistrate of the first class having jurisdiction. Such a power can also be exercised by the superior Court, if the Court concerned has not passed the order directing inquiry. Clearly in the present case, the Court was not the complainant, but it had taken cognizance of the complaint on the basis of the application moved before it.

Even u/s 344 of the Code of Criminal Procedure where suo motu powers have been conferred on a Court to try an accused, it is clarified that at the time of delivery of any Judgment or final order disposing of the judicial proceedings, the Court of Sessions or Magistrate of the first class can express an opinion to the effect that if any witness appearing before it in such proceedings had knowingly or willfully given false evidence or fabricated false evidence and that it is expedient in the interest of justice that the witness should be tried summarily for giving or fabricating false evidence, such Court may then take cognizance of an offence after giving the offender reasonable opportunity of showing cause why he should not be punished for such offence and try the offender summarily for the sentence provided under the provision.

The present case also did not fall in the latter category because it was not at the stage when the Court while passing its final order in Case No. 1045 of 2002 had recorded any finding that the applicants appeared to have given false evidence that the said order had been passed.

In this view of the matter, I am of the view that the application must be allowed and the order summoning the applicants dated 10.5.2007 is set aside. However, it will be open to the complainant to move an application u/s 340 Cr.P.C. before the Court concerned, which should pass appropriate orders thereon within a period of two months, if possible.

With these observations, the application is allowed.