CRM No.M-37[SECTION] of 2010 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH CRM No.M-37[SECTION] of 2010 Date of decision:18.09.2012 [ENTITY] Petitioner Versus [ENTITY] Respondent CORAM: HON'BLE Ms. JUSTICE [ENTITY] Present: Mr.[ENTITY], Advocate, for the petitioner. Mr.[ENTITY], AAG, Punjab. [ENTITY], J.
Quashing of FIR No.12 dated 14.2.2009 registered under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] at Police Station, [ENTITY], District [ENTITY] and the proceedings consequential thereto are being sought.
On 3.7.2002 [ENTITY], Accountant of [ENTITY] was sent to B.C.L. for collecting empty cylinders. He did not come out of the BCL for 4-5 hours. Then truck driver [ENTITY] went inside to enquire about him and he was told that [ENTITY] never came there. The driver informed [ENTITY], Works Executive of [ENTITY] telephonically. On 4.7.2002, [ENTITY] reached the premises of M/S B.C.L. where he met with hostility by the staff. He approached the SHO, Police Station Sadar, Bathinda, who did not take any action in the matter. On 5.7.2002, [ENTITY] filed [CASE NUMBER] in this Court for issuance of a writ in the nature of habeas corpus directing the release of the detenue [ENTITY] from the illegal detention of the respondents. The said habeas corpus was duly supported by the affidavit of [ENTITY] and he accompanied the Warrant Officer to Bathinda for search. [ENTITY] was not traceable during search, but 102 cylinders were found and these were either marked as "DV" written with the white paint or with mark "Seema" and "AGL" engraved on the cylinders. The mark "DV" was appeared to have been removed with read paint and re-written as "BCL".
On 20.9.2002, a complaint was made by [ENTITY], Works Executive of [ENTITY] to SSP, [ENTITY] regarding illegal confining [ENTITY] and not returning the empty cylinders, but no action was taken. He filed another [CASE NUMBER] in this Court on 27.1.2003 with a prayer to direct the [ENTITY] and SSP [ENTITY] and the SHO Police Station, Naya Nangal to register a FIR for the offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT]. Again the petition was duly supported by the affidavit of [ENTITY], Works Executive, [ENTITY].
On 5.4.2003 M/s [ENTITY] Gasses Pvt. Ltd. Through [ENTITY], Director and [ENTITY], Works Executive filed a complaint bearing No.85/2003 under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] read with [SECTION] of [ACT] in the court of ld. Sub Judicial Divisional Magistrate, [ENTITY]. M/s Bathinda Chemicals Ltd. and 7 other officials of M/s Bathinda Chemicals Ltd. Including its Chairman and Managing Director and Directors were impleaded as the accused.
After filing of the complaint on 5.11.2003 [ENTITY], Director, [ENTITY] petitioner appeared as CW1; [ENTITY] as CW2 before the court of learned SDJM [ENTITY] and [ENTITY] appeared as CW3. On 6.7.2004, the learned Sub Divisional Judicial Magistrate, [ENTITY] summoned the accused under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT].
In December 2004, a [CASE NUMBER] was filed by [ENTITY] for quashing of the complainant Annexure P-3 and the summoning order dated 6.7.2004. At this stage, it requires mention that the accused had already won over one witness [ENTITY], Works Executive, [ENTITY] and had procured the affidavit of some person [ENTITY] son of [ENTITY]. It is wrongly stated that CW2 [ENTITY] and [ENTITY] CW3 were impersonated by the court of learned SDJM [ENTITY] and they had not given any statement before the Court in the complaint case and consequently it was prayed that the summoning order has been wrongly passed. In view of this, this Court was pleased to direct the learned SDJM to conduct an enquiry and to verify as to whether CW2 [ENTITY] and CW3 [ENTITY] son of [ENTITY] had appeared or not. It was also observed that in case it is found that the said 2 persons had appeared and deposed, the Magistrate would proceed with the complaint. In case, it is found that someone else has impersonated in place of the said person, appropriate action would be taken under the [ACT].
During enquiry, the statement of [ENTITY], Works Executive was recorded. It was apparent that [ENTITY] had colluded with the accused. He clearly resiled from his earlier statement and stated that he never made any such statement in the court and had never appeared. However, he stated that he identified his signatures on each and every page of the complaint filed by M/s [ENTITY] Gases Private Ltd. He also stated that he never filed any complaint in any Court, however, the complaint bears his signatures. He still further admitted that he has seen his signatures on the statement as CW2 (Annexure P-4) and identified his signatures, but he had not made the statement. The second dispute in the said enquiry was with regard to the statement of CW3 [ENTITY] son of Sh. [ENTITY]. Suprisingly during enquiry, a person [ENTITY] son of [ENTITY] was produced. [ENTITY] also belongs to the same village. This person clearly stated that he had no knowledge regarding the case of M/s [ENTITY] Gases Private Ltd. Versus Bathinda Chemicals Ltd. and has not appeared as a witness in the case. Even he further stated that he does not know as to who is [ENTITY] son of [ENTITY], whose statement was recorded as CW3.
The learned SDJM [ENTITY] observed that [ENTITY] son of [ENTITY], who had appeared in the Court now during enquiry was different and his parentage is different from [ENTITY] son of [ENTITY], who had appeared as CW3 earlier. As such, he ordered issue of fresh notice to [ENTITY] son of [ENTITY].
On 3.1.2009, the summons issued to [ENTITY] resident of Delhi were received back with the report that no such person was residing at the given address.
On 14.2.2009, the learned SDJM, [ENTITY] directed the SHO, Police Station, [ENTITY] to register the present FIR bearing No.12 dated 14.2.2009 under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] Police Station [ENTITY], District [ENTITY].
Counsel for the petitioner has argued that direction given by the SDJM , [ENTITY], on 14.2.2009 to register an FIR is against the provisions of [SECTION] of [ACT] The only course open to the learned SDJM was that after making enquiry he could record the finding to that effect; he could make a complaint in writing and send it to the Magistrate of First Class having jurisdiction; after taking sufficient security, he could seek appearance of the accused before the Magistrate.
On the other hand, counsel for the State has submitted that this Court in [CASE NUMBER] issued direction to SDJM to conduct an inquiry and to verify whether CW2 [ENTITY] and CW3 [ENTITY] son of [ENTITY] had appeared in the court or not. During enquiry, the learned SDJM came to conclusion that [ENTITY] son of [ENTITY] appeared in the Court and now during enquiry was different and his parentage is different from [ENTITY] son of [ENTITY], who had appeared as CW3 earlier. After coming to this conclusion, a direction was given to register the FIR.
The essential ingredients to proceed with complaint under [SECTION] as laid down by [SECTION] is that the Court has to form an opinion that it is expedient in the interest of justice that such an enquiry should be made into any offence. It is not sufficient that false affidavit has been given in the Court which necessitate initiation of inquiry. No doubt that the petitioner has given two affidavits in criminal proceedings in the Court of law. However, at the time of entertaining the complaint made by the complainant, the Court has to record a finding that affidavit was false and also that it was in the interest of justice, further enquiry should be made. It is not necessary that in every case where false affidavit or statement has been given in the Court proceedings, the Court has to refer the matter for for further enquiry against the person who has given a false affidavit. Hon'ble the Supreme Court in [PRECEDENT] has held that if the complaint is made, the Scheme of [SECTION] [ACT] is that the Court will have to act in the interest of justice on the complaint or otherwise. It cannot straightway proceed to issue notice against the person, who has appeared to commit an offence. In the absence of opinion of the Court on a complaint that it is in the interest of justice to refer the complaint for further proceedings are initiated and the conviction is liable to be set aside. Hon'ble the Supreme Court in [PRECEDENT]'s case (supra) has held in para 2, which reads as under:
"2. Learned counsel appearing for the appellant urged that there is nothing on record to show that the High Court while making an inquiry under [SECTION] [ACT] applied its mind whether it was expedient in the interest of justice that a complaint be filed against the appellant. Under [SECTION] [ACT], if the Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into an offence referred to in Clause (b) of Sub-Section (i) of [SECTION] [ACT] in relation to any proceedings in that Court, the Court after such preliminary inquiry may direct for filing a complaint before the appropriate Court against such person."
The mandatory provision of [SECTION] [ACT] requires that the Court has to form an opinion that it is in the interest of justice that inquiry should be made to an offence under Clause (b) of sub-Section (i) of [SECTION] [ACT]
Reference was made in para 18 of the judgment of Hon'ble the Supreme Court in [PRECEDENT], which reads as under:
"18. In view of the language used in [SECTION] [ACT] the Court is not bound to make a complaint regarding commission of an offence referred to in [SECTION](1)
(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice."
This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in [SECTION]. This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)
(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remedyless. Any interpretation which leads to a situation where a victim of a crime is rendered remedyless, has to be discarded."
Following the law laid by Hon'ble the Supreme Court, a Coordinate Bench of this Court in [PRECEDENT] had quashed the proceedings initiated on a complaint filed under [SECTION] on the ground that order did not show that the Court had formed an opinion that it was in the int4erest of justice that the complaint should be entertained and enquiry should be conducted.
In [PRECEDENT], a Coordinate Bench of this Court had an occasion to examine the case where a false certificate from the Doctor that the accused had suffered a fracture had been obtained. Thereafter, accused filed a private complaint in the Court against the complainant and tendered false certificate in evidence. Aggrieved party lodged an FIR and the accused was convicted under [SECTION] [ACT] and sentenced to three years RI by the Court. The conviction and sentence was set aside. Applying the law laid down by Hon'ble the Supreme Court to the facts of the present case, the investigating agency proceeded against the petitioner on the letter sent to the Superintendent of Police, the proper course should have been that the Court of District and Sessions Judge should have passed an order expressing its opinion that it was in the interest of justice to make preliminary enquiry on the issue of filing false affidavit in the Court straightway directing the the Superintendent of Police to initiate the criminal proceedings and register FIR is not in accordance with law.
In the facts of the present case, the learned SDJM [ENTITY] directed the SHO Police Station [ENTITY] on 14.02.2009 to register the present F.I.R bearing No.12 dated 14.2.2009 under [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] Police Station [ENTITY], District [ENTITY]. As per the mandatory provisions of [SECTION] [ACT], the SDJM was required to record the finding after making the enquiry that it is in the interest of justice that the complaint should be registered for making a false statement in the Court. After recording so, he could make a complaint in writing and send it to the the Magistrate of First Class having jurisdiction; after taking sufficient security, he could seek appearance of the accused before the Magistrate. Giving a direction to the SHO Police Station [ENTITY] to register the F.I.R is against the provisions of [SECTION] [ACT] as held by Hon'ble the Supreme Court in the above cited judgments.
Accordingly, FIR No.12 dated 14.2.2009 registered under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] of [ACT] at Police Station, [ENTITY], District [ENTITY] is quashed.
However, a liberty is given to SDJM, [ENTITY] to proceed afresh in accordance with law.
Accordingly, the present petition is allowed.
([ENTITY]) JUDGE 18.09.2012 Mks/G.Arora