cpc

can we move an application u/s 340 crpc after judgment


Respected All

 

  1. Please help can we move an application under section 340 Cr P C after Judgment, if yes in what time limit?
  2. If the competent Court send it to a Magistrate of the first class having jurisdiction then who are the parties, I and Accused person or Government and Accused person, if parties are Government and Accused person How can I become party?

Regards

 
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Advocate

Dear Mr. Jain,

Your query has got an answer in the provisions of the section 340 Cr.P.C itself, especially if subsection (2) of the section in question, if given a thorough reading, will explain as to what can be done and when and how etc.  Thus, the answer for your 1st query can be seen through this, the answer for your 2nd query is that it depends on the complainant who makes a complaint to include whom as a party.  Adv Kalaiselvan, Vellore

 
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simple solutions for criminal legal problems -- yourpunch@gmail.com

People have HI FI imagination and understanding about the provisions of section 340.


Normally the cases decided by courts are evidence / case against accused not proved., so it does not mean false evidence and hence no PERJURY.

 
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a
 
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Respected

 

Shri Kalaiselvan Ji

 

Sir,

 

Very thanks for your reply and I had gone through the section 340 CrPC but do not find my answer and I here by request you to please find the facts of my case:

 

I am fighting with a greedy person and have filed the civil suit for recovery in the Court and the same is in the stage of evidence of mine. The same greedy person who is a Senior Citizen moves an application before the Senior Citizen Tribunal (who is headed by Sub Divisional Magistrate and a close friend of that greedy person) by not disclosing the detail of civil suit and makes illegal and wrongful charges of Strong Armed, Threatening of Kidnapping, Threatening of Attempt to Murder, against me and my father who is also Senior Citizen for illegally harassing and disturbing him (greedy person) for money and and with a prayer to take strong and legal action against me as he is in fear of his life.

 

The Tribunal while closing the eyes admits that application and one of the officers of the Tribunal called on my mobile and using hash language and ordered me and my father to present before the Tribunal on the date specified

 

I then go through the Senior Citizen Act and came to know that The Tribunal has no power to admit these types of application as Tribunal have only power to admit the application if made for the claim of maintenance with too against relative or family members. So I prepared my statement in writing and submit the same before the Tribunal on the date specified and disclosed the detail of civil suit by attaching the copy of one order of the case. When Tribunal asked that greedy person regarding this civil case he specific record his statement before the Tribunal that he does not know about this civil case filed my me in any manner whatsoever and then Tribunal gives Judgment in favor of mine by dismissing the application with the specific reason that as I have brought detail of Civil Case before the Tribunal and the matter is still pending so Tribunal cannot proceed further. The Greedy person continuously harassing me to withdrawal my case by the help of local police.

 

When I check the records I found that the same greedy person filed his written statement with affidavit by denying all the facts in the Civil Court one month before he made the application to Tribunal. Now I got all the certified copies of written statement & affidavit filed by that greedy person in Civil Suit as well as the certified copy of the Judgment passed by the Tribunal in which Tribunal specific mentioned regarding the statement of that greedy person that he made the statement before the tribunal that “he does not know about this civil case filed my me in any manner whatsoever” I have also various other very strong certified documentary evidences that greedy person have intentionally hides and gives wrong & false information to various public servants which relates to the subject matter so as to cause injury to me and my family members. Also I have one telephone conversation in which the son of that greedy person specifically threatened me that they have filed the above application as I have filed the civil case.

 

It about 13 Months after the judgment as of now and that greedy person continuously tortured and harassing me with the help of local police and miscreant person and now it Impossible for me to stop that greedy person.   

 

As per section 340 CrPC I have to make the application to file the complaint or make a enquiry before the same Tribunal in which concern Sub Divisional Magistrate is his friend and there is every possibility that the concern Tribunal can not take any action, so you are requested to please guide me

 

  • Can I move an application under section 340 Cr P C after Judgment, if yes in what time limit?
  • Can I am bound to move an application under section 340 Cr P C before the same Tribunal?
  • Can I have any alternative to file application under section 340 before any Judicial Magistrate so as to file the criminal complaint against that greedy person and become party? Or any other Alternative

Very Thanks and waiting for your valuable advice…

 
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Advocate/ nadeemqureshi1@gmail.com

read the section carefully

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.
(4) In this section," Court" has the same meaning as in section 195.
 
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Advocate/ nadeemqureshi1@gmail.com

Madras High Court
M.Sudalaimani ..Revision vs S.Umaiyal on 20 December, 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 20/12/2012

CORAM

THE HONOURABLE MR.JUSTICE M.VENUGOPAL

CRL.R.C.(MD)No.920 of 2011

and

M.P.(MD) No. 1 of 2011

M.Sudalaimani ..Revision Petitioner

Vs.

S.Umaiyal .. Respondent/Respondent

Prayer

Criminal Revision Petition is filed under Section 397 of of Cr.P.C. r/w 401 Cr.P.C. to call for the records relating to the order dated 05.09.2011 in Crl.M.P.NO.1187 of 2011 on the file of the Learned Principal District Munsif cum Judicial Magistrate, Karaikudi and set aside the same and pass such other or further orders as this Court may deem fit and proper in the facts and circumstances of the case.

!For Petitioner ... Mr. V.R.Shanmuganathan

^For Respondent ... Mr. S.Murugan

* * * * *

:ORDER

The Petitioner has focused the instant Criminal Revision Petition before this Court as against the order dated 05.09.2011 in Criminal M.P.No.1187 of 2011 passed by the Learned Principal District Munsif - cum - Judicial Magistrate, Karaikudi.

2. The Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, while passing the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 has, among other things, observed that "... As per Section 340 of Cr.P.C., the court must satisfy that it is expedient in interest of justice the enquiry should be made into the offence under Section 195 of Indian Penal Code. On plain reading of the above Section clearly shows that satisfaction of the court is necessary that the respondent intentionally and knowingly gave false evidence. Moreover, the evidence cannot be looked into piecemeal. The whole evidence has to be considered. Moreover, it must be shown that the evidence of the respondent before this Court knowingly gave false evidence. In this case, it is already discussed in the foregoing paragraphs that there is no finding in C.C.No.197 of 2002 that this respondent gave false evidence etc" and resultantly, dismissed the petition.

3.Assailing the correctness of the dismissal order passed by the trial court in Cr.M.P.No.1187 of 2011 dated 05.09.2011, the Revision Petitioner/Petitioner has filed the instant Revision before this Court as an Aggrieved Person.

4.According to the Learned counsel for the Petitioner/ Husband, the trial court has committed an error in dismissing Crl.M.P.No.1187 fo 2011 without appreciating the facts in issue in a proper and real perspective.

5. The Learned counsel for the Petitioner urges before this Court that the trial court should have seen that the Respondent/ Wife has given false evidence and the same has been established as per categorical finding rendered in the judgment in M.C.No.05 of 2003 dated 07.12.2010.

6. Advancing his argument, it is the contention of the Learned counsel for the Petitioner that the Respondent/Wife as P.W.1 in M.C.No.05 of 2003 has given a false evidence that the Petitioner/Husband married one Premalatha. However, the said statement has been found to be a false one by the Judgment in C.C.No.179 of 2002 dated 06.05.2010 passed by the Learned Principal District Munsif - cum - Judicial Magistrate,Karaikudi.

7. Yet another plea taken on behalf of the Petitioner is that the Respondent/Wife as P.W.1 has suppressed the fact that her daughters viz, (the Second and Third Petitioners) in M.C.No.05 of 2003 are majors. However, a claim for maintenance for them also has been made in that proceeding.

8. That apart, the Learned counsel for the Petitioner submits that the Learned Principal District Munsif-cum-Judicial Magistrate, Karaikudi, without ordering notice to the Respondent/Wife in Crl.M.P.No.1187 of 2011 and without holding any enquiry as contemplated under Section 340 of Cr.P.C. has dismissed the petition erroneously.

9. Lastly, it is the contention of the Learned counsel for the Petitioner/Husband that the Principal District Munsif-cum-Judicial Magistrate, Karaikudi is bound to receive the document in evidence and to conduct a Preliminary Enquiry and then record a finding before proceeding further to lodge a complaint under law.

10. The Learned counsel for the Petitioner/Husband draws the attention of this Court that the Respondent/Wife along with her two daughters as Petitioner Nos. 2 and 3 filed M.C.N. 05 of 2003 on the file of the Learned Principal District Munsif - cum - Judicial Magistrate, Karaikudi (under Section 125 of Cr.P.C. claiming maintenance from the Revision Petitioner/Husband who was figured as Respondent therein). As a matter of fact the Respondent/Wife in M.C.No.05 of 2003 has claimed monthly maintenance of Rs.1,000/-(Rupees one thousand only) for herself and for her daughters she claimed a sum of Rs.2,000/- (Rupees two thousand only) per month towards maintenance.

11. The Learned counsel for the Petitioner contends that in M.C.No.05 of 2003, the Respondent/Wife has been examined as P.W.1 and that she has deposed that she is employed in a private school getting a salary of Rs.2,000/-(Rupees two thousand only) and from her salary income she is not able to fulfill her essential needs/requirements.

12. Also, the Learned counsel for the Petitioner invites the attention of this Court to the evidence of Respondent/Wife as P.W.1 in M.C.No.05 of 2003 to the fact that where she has stated that she can produce her salary certificate before the court and also, to a suggestion she has stated that it is not correct to state that she is getting an income of Rs.7,000/-(Rupees seven thousand only). Furthermore, the Learned counsel for the Petitioner submits that the Respondent/Wife gets a salary of Rs.7,000/-(Rupees seven thousand only) as per Exs.R.9 to R.10 respectively.

13. The Learned counsel for the Petitioner contends that in the order dated 07.12.2010 in M.C.No.05 of 2003 in paragraph No.11, it is clearly mentioned that 'Admittedly, the first Petitioner is working as a Teacher in Alagappan Matriculation School and according to P.W.1, she is getting Rs.2,000/- (Rupees two thousand only) per month as salary. On the side of the respondent R.W.2 Kumarappan who is the Head Master of above school was examined. Ex.R.11 is the salary certificate of the First Petitioner. It can be seen from Ex.R.11 that the First Petitioner was getting a salary of Rs.6840/-(Rupees six thousand eight hundred and forty only) in the month of December 2007. R.W.2 in his evidence has clearly stated in the year 2003 the salary of the First Petitioner was Rs.3384/- (Rupees three thousand three hundred and eighty four only) and she was getting a take home salary of Rs.2978/-(Rupees two thousand nine hundred and seventy eight only) in the year 2003. This would clearly falsify the evidence of P.W.1 that she is getting Rs.2,000/-(Rupees two thousand only) at the time of filing of this petition etc. and therefore, it is clear that the Respondent (First Petitioner in M.C.No.5 of 2003) has clearly given false evidence and rendered herself for perjury.

14. Apart from the above, the Learned counsel for the Petitioner refers to paragraph No.7 of the order dated 05.09.2011 in Cr.M.P.No.1187 of 2011 wherein it is inter alia observed that ''In this case, this Court has perused all the documents etc" and further it is also observed that there is no finding in C.C.No.179 of 2002 that this Respondent/Wife gave false evidence and as also opined that the facts not proved and the facts disproved are different and in this case the facts stated by the respondent in the evidence were not disproved and so this Court cannot come to a conclusion that prima facie there is a case for perjury'. According to the Learned counsel for the Petitioner, these observations of the Learned Principal District Munsif - cum - Judicial Magistrate, Karaikudi are not per se correct in the eye of law.

15. Expatiating his submissions, the Learned counsel for the Petitioner puts forward an argument that before alleging the complaint under Section 340 of Cr.P.C. the following two conditions are to be followed namely 1) a person must have given false evidence

2) In the opinion of Court it is expedient in the interest of justice to make an enquiry.

Added further, it is the stand of the Petitioner that the Principal District Munsif - cum - Judicial Magistrate, Karaikudi has failed to take note of the fact that there is a prima facie evidence to show that the Respondent/Wife has given false evidence.

16. The Learned counsel for the Petitioner submits that the Principal District Munsif - cum - Judicial Magistrate, Karaikudi, has not issued notice to the Respondent/Wife in Crl.M.P.No.1187 of 2011 and straight away he has heard the matter and dismissed the petition without conducting a Preliminary Enquiry and indeed, the Petitioner/Husband's counsel alone has been heard in Criminal Miscellaneous petition.

17. The categorical stand of the Petitioner is that the Petitioner has not been given an opportunity to let in evidence in Crl.M.P.No.1187 of 2011 before the Principal District Munsif - cum - Judicial Magistrate, Karaikudi. The Learned counsel for the Petitioner refers to Section 191 of Indian Penal Code which runs as under:

"Giving false evidence: - Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence".

Also, he has made a reference to Section 193 of Indian Penal Code which speaks of "Punishment for false evidence" which enjoins thus: Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either descripttion for a term which may extend to seven years, and shall also be liable to fine and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either descripttion for a term which may extend to three years, and shall also be liable to fine"

18. Repelling the contentions of the Learned counsel for the Petitioner, the Learned counsel for the Respondent/Wife contends that the Criminal Revision Petition in Crl.RC.No. 920 of 2011 filed by the Petitioner/Husband as against the impugned order dated 05.09.2011 in CrlM.P.No.1187 of 2011 is not in limini maintainable in law because of the fact that as against the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 the Petitioner is to file an Appeal as per Section 341 of Cr.P.C.

19. Coming to the merits of the matter, the Learned counsel for the Respondent/Wife submits that there is no clear finding in M.C.No.05 of 2003 that the Respondent/Wife has given false evidence and in fact, the whole evidence tendered by the Respondent/Wife before appropriate proceedings belonging to be taken note of and her evidence cannot be viewed in isolation or in piecemeal manner.

20.Further, the Learned counsel for the Respondent/Wife brings it to the notice of this Court that the Respondent/Wife filed a salary certificate in the year 2007 in 2002 what has been the salary received by the Respondent/Wife is to be seen and for the year 2002 salary in respect of the Respondent/Wife no certificate has been given.

21.According to the Learned counsel for the Respondent/Wife in C.C.No.179 of 2002 on the file of the Principal District Munsif cum-Judicial Magistrate, Karaikudi the Revision Petitioner/Husband has been arrayed as the first accused along with the two accused namely A2 and A3 and the Revision Petitioner finally has been convicted for an offence under Sections 498(A) of IPC and Section 4 of Dowry Prohibition Act and sentenced to undergo one year Rigorous Imprisonment and also has been directed to pay fine of Rs.500/- in default to undergo Rigorous Imprisonment for three months for offences under Section 498(A) of IPC and to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/- in default. But in fact, Rigorous Imprisonment for three months in respect of an offence under Section 4 of Dowry Prohibition Act and for the sentences were ordered to run concurrently. However, A2 and A3 were found not guilty under Sections 498(A) and 494 of IPC and Section 4 of Dowry Prohibition Act and were acquitted under Section 248(1) of Cr.P.C.

22. The Learned counsel for the Respondent/Wife submits that the Revision Petitioner/Husband has been compulsorily retired from service and he was employed as the Sub Inspector of Police (On Technical Side). Further, it is the contention of the Learned counsel for the Respondent that examination of a Party/Litigant is not necessary and also notice to other side is not necessary and it is open to the Learned Principal District Munsif - cum - Judicial Magistrate, Karaikudi to deal with Crl.M.P.No.1187 of 2011 in accordance with law.

23. By way of reply, the Learned counsel for the Petitioner/Husband submits that an Appeal can be filed if the order passed by the Learned Principal District Munsif - cum - Judicial Magistrate, Karaikudi in Crl.M.P.No.1187 of 2011 dated 05.09.2011 is a Full Fledged One and since the impugned order in Crl.M.P.No.1187 of 2011 is not a Full Fledged one viz, without hearing the other side then it will not take away a party's right to file Revision, wherein the propriety, legality or correctness of the order passed by the Learned Principal District Munsif - cum - Judicial Magistrate, Karaikudi can be challenged in the eye of law.

24. The Learned counsel for the Petitioner/Husband contends that the Respondent/Wife is necessarily to speak the truth and in fact, she has given false evidence in the proceedings in M.C.No. 05 of 2003 mentioning that she gets only Rs.2,000/- as salary in her avocation as Teacher in a private school, when in fact she has been earning more than Rs.2,000/-.

25.It is to be noted that the ingredients of Section 340 of Cr.P.C. apply to all proceedings in all courts de hors whether the matter in a civil court in which the purported offence mentioned in Section 195 of Indian Penal Code was committed, was a criminal case or a civil case. The purpose of Section 340 of Cr.P.C is to provide a safeguard against vexatious or frivolous prosecution. In fact Section 34 of Cr.P.C. and Section 195 of IPC are closely inter linked and have healthy construction. They should be read together as opined by this Court.

26. It cannot be gain said that before initiating an action under Section 340 of Cr.P.C., a Court of Law satisfied that the litigation sought to be proceeded against deliberately, intentionally committed offence. No wonder, Section 340 of Cr.P.C. is intended to be complimentary to Section 195 of IPC in the considered opinion of this Court. The power as per Section 340 of Cr.P.C. is to be exercised with care and caution that too, where it is considered necessary in the 'interests of justice'. Every false statement averred in a plaint filed or in a written statement may not invite a prosecution as per decision in Vimla Vs. Ranjini Murugan reported in 1988 (2) Crimes 124, 131(Mad).

27. One cannot ignore an important fact that the ingredients of Section 340 of Cr.P.C. are not permitted to be employed as hand maid of private persons to achieve their revengeful attitude against another person. If a party seeking to invoke the benefit of Section 340 of Cr.P.C. is desirous of achieving its oblique motive indirectly, then a care must be taken to see that a court of law is not employed for that as a tool for achieving their own ends.

28. First and foremost, it is to be seen that whether a person has deliberately/intentionally has given false evidence. Secondly, it is to be looked into whether it will be a expedient in the interest of justice to initiate action against him or her in the manner known to law. In short, a court of law should first see whether a person has tendered evidence before the court has contradicted his earlier statement which is a false one.

29. There is no legal mandatory duty cast upon a court of law to provide an opportunity of hearing to the Opposite Party/ Accused against whom the Learned Judicial Magistrate might commence prosecution proceedings, as per decision of Hon'ble Supreme Court in Pritesh Vs. State of Maharashtra reported in AIR 2002 SC 236.

30. Really speaking, a Respondent in a proceeding under Section 340 of Cr.P.C. is not an accused. It is to be remembered that in a Preliminary Enquiry under Section 340 of Cr.P.C. the other side is not entitled to cross examine the Petitioner's witnesses, as per decision in Hridayanshy Bhattarcharjee Vs. State of Jharkhand reported in 2003 CrlJ 624(626) (Jhar).

31. At this stage, this Court pertinently points out that an order passed under Section 340 of Cr.P.C. is an Appealable one. Furthermore, that appeal is right of a Party/Litigant as per decision reported in AIR 1935 Madras at page

673. Also, an Appeal against the order passed under Section 340 of Cr.P.C. is to be filed before the Competent Forum as specified under Code of Criminal Procedure. Moreover, the Appellate Court can take evidence and also additional evidence as per decision reported in 38 CrlJ at page 561. On consideration of all facts, the Appellate court should see whether there is merit. Otherwise, it will not proceed as per decision reported in AIR 1925 All at page 544.

32. As far as the present case on hand, this Court is of the considered view that as against the order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 passed by the Learned Principal District Munsif cum Judicial Magistrate, Karaikudi, the Petitioner/Husband is to prefer only an Appeal before the Appropriate/Competent Forum (not withstanding the fact whether it is a Full Fledge One or otherwise). As such, the instant Revision Petition filed by the Revision Petitioner/Husband as against the impugned order dated 05.09.2011 in Crl.M.P.No.1187 of 2011 passed by the Learned Principal District Munsif-cum- Judicial Magistrate, Karaikudi is not per se maintainable in law. Viewed in that perspective, the Criminal Revision Petition fails.

 

33. In the result, the Criminal Revision Petition is dismissed as not maintainable. Liberty is granted to the Petitioner/Husband to prefer an Appeal before the Competent Forum as per Section 341 of Cr.P.C. and to seek appropriate remedy in accordance with law, if so advised. As and when the Appeal is filed by the Petitioner/Husband, then it is open to the respective parties to raise all Factual and Legal Pleas before the Appropriate Forum and to seek remedy in the manner known to law.

 
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