Crl. Rev. No.1077 of 2004 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.1077 of 2004 Date of Decision: 12 - 5 - 2010 Jagdev Singh .....Petitioner v. State of Punjab and another .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Sukhbir Singh Mattewal, Advocate for the petitioner. Mr.J.S.Bhullar, AAG, Punjab for respondent No.1. Ms.Gursharan Kaur Mann, Advocate for respondent No.2. *** KANWALJIT SINGH AHLUWALIA, J. The present revision petition has been preferred by Jagdev Singh son of Amrik Singh. He was convicted by the Court of Chief Judicial Magistrate, Amritsar vide his judgment and order of sentence dated 26.10.2002 for offence under Sections 182, 193, 199, 200 IPC and sentenced as under:- Under Sections Sentencned to undergo:- 182 I.P.C. Rigorous imprisonment for six months 193 I.P.C. Rigorous imprisonment for one year Crl. Rev. No.1077 of 2004 [2] and to pay a fine of Rs.200/- and in default of payment of fine to undergo further rigorous imprisonment for 15 days. 199 I.P.C. Rigorous imprisonment for one year and to pay a fine of Rs.200/- and in default of payment of fine to undergo further rigorous imprisonment for 15 days. 200 I.P.C. Rigorous imprisonment for one year and to pay a fine of Rs.200/- and in default of payment of fine to undergo further rigorous imprisonment for 15 days. All the substantive sentences were ordered to run concurrently. Aggrieved against the same, the petitioner filed an appeal. The Court of Additional Sessions Judge, Amritsar on 3.4.2004 dismissed the appeal while upholding the conviction and maintaining the sentence. Criminal proceedings were set into motion against the petitioner in a complaint, Annexure P10 filed by the Court of Civil Judge (Sr. Division)-cum-Additional Chief Judicial Magistrate, Amritsar on 4.2.1999. This complaint was instituted in the Court of Chief Judicial Magistrate, Amritsar. In the complaint, it was stated that the complainant was posted as Civil Judge (Sr.Division)-cum-Additional Chief Judicial Magistrate, Amritsar. Jagdev Singh accused-petitioner had filed a suit for declaration to the effect that he was unmarried and prayed for issuance of a permanent injunction restraining Jaspinder Kaur, defendant to the suit to claim herself as married wife of the plaintiff (accused-petitioner). Along with the suit, an application under Order 39, Rules 1 and 2, read with Section 151 CPC was filed, in which temporary injunction was sought for Crl. Rev. No.1077 of 2004 [3] restraining Jaspinder Kaur defendant for claiming herself to be the married wife of the plaintiff. Along with the application, an affidavit was also filed. On 4.2.1999, case was fixed for consideration of the application filed under Section 151 CPC, when the statement of the plaintiff was recorded. He admitted that defendant was his legally wedded wife and the child who was present in Court was born out of their wedlock. The Court of Civil Judge (Sr. Division), Amritsar made a grievance in the complaint that a false suit for declaration was filed in order to induce the Court to exercise its lawful authority against the defendant. Thus, the plaintiff-accused-petitioner had committed an offence under Sections 182, 193, 199 and 200 IPC. It was further stated in the complaint that before instituting the complaint, an enquiry under Section 340 read with Section 195 Cr.P.C. was held. The Court of Chief Judicial Magistrate, Amritsar on 18.1.2000 charged the petitioner for offence under Sections 182, 193, 199 and 200 IPC. The charges framed against the petitioner read as under:- “That on 14.9.1998 you filed an affidavit in the court of Shri Kuldip Singh, Civil Judge (Senior Division)-cum- Additional Chief Judicial Magistrate, Amritsar, in which you made declaration to the effect that you are unmarried but after enquiry it was found that you were already married with Jaspinder Kaur and you gave false information by filing false affidavit and thereby you committed offence under Section 182 IPC and within my cognizance. 2. Secondly, on the same date, time and place, you filed false affidavit in the court of Shri Kuldip Singh in which you made declaration that you are unmarried but after enquiry it Crl. Rev. No.1077 of 2004 [4] was found that you were already married with Jaspinder Kaur and during the enquiry Jaspinder Kaur stated in her evidence that she was already married with you but you did not believe the same and thereby you committed offence under Section 193 IPC and within my cognizance. 3. Thirdly, on the same date, time and place by filing an false affidavit and making declaration in the court of Shri Kuldip Singh, Civil Judge (Senior Division), Amritsar, and during enquiry Shri Kuldip Singh, Civil Judge (Senior Division), Amritsar, found that your affidavit is false and that you thereby committed an offence under section 199 IPC and within my cognizance. 4. Lastly, on the same date, time and place you used your affidavit which was false and filed in the court of Shri Kuldip Singh, Civil Judge (Senior Division), Asr. which you know and believe that the same was false and thereby you committed an offence under section 200 IPC and within my cognizance.” The accused-petitioner pleaded not guilty and claimed trial. Jaspinder Kaur appeared as PW1. She stated that she was married with the accused-petitioner on 2.2.1997. After marriage, she lived with the accused in her matrimonial home at Village Talwandi Dasondha Singh Mal. Out of the wedlock, one male child, namely, Amrit Pal Singh was born. The child was 2½ years on the day of deposition. Accused- husband demanded a car in the dowry. Due to not fulfilling the demand, accused-husband harassed his wife and turned her out of the matrimonial Crl. Rev. No.1077 of 2004 [5] home. It was stated that the accused-husband had filed a false case alleging himself to be unmarried. In cross-examination, she admitted that she had filed an application under Section 125 Cr.P.C. which was pending in the Court at Ajnala. There the accused-husband also raised a plea that he was unmarried. However, afterwards, the accused-husband admitted the witness to be his legally wedded wife. PW2 Dalbir Singh, father of Jaspinder Kaur PW1 also reiterated the version as to what was stated by his daughter Jaspinder Kaur. PW3 Shri Kuldeep Singh, Additional Sessions Judge, Ropar stated that at the time of filing of the complaint, he was posted as a Civil Judge (Sr. Division), Amritsar. He stated that a civil case was filed seeking declaration. Along with the application, an affidavit was filed which was later on admitted to be false. He held an enquiry under Section 340 Cr.P.C. Thereafter, the evidence was closed. Statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him. Ex.P6 is the statement made by Jagdev Singh on 4.2.1999 when the civil case was fixed before the Court. The statement when translated into English reads as under:- “Statement of Jagdev Singh son of Amrik Singh, 30 years, posted as Constable, Punjab Police, Police Lines, Amritsar. On SA Stated that I am employed as a Constable in Punjab Police. My No. is 2383. Jaspinder Kaur present in Court is my wife. My marriage was performed with her according to Sikh rites. The child present in Court is my son. Defendant levelled false allegations against me. Therefore, I filed the present suit.” Crl. Rev. No.1077 of 2004 [6] The civil suit in the present case was filed on 10.9.1998. It was accompanied by an application of the same date under Order 39, Rules 1 and 2 read with Section 151 CPC, supported by an affidavit. In the present case, neither Giani Sulakhan Singh, Advocate has been examined to say that the contents of the plaint and the application were read by the accused- petitioner and believing the same to be correct, he had appended his signatures, nor the Oath Commissioner, Shri Ravi Kant, Advocate was examined to say that accused has affirmed the affidavit before him knowing its contents fully well. Plaint, application and the affidavit have been proved by Shri Kuldip Singh, Civil Judge (Sr. Division), as the one which were filed in the Court. No body has proved the signatures of the petitioner on these documents. The statement of the accused recorded under Section 313 Cr.P.C. reads as under:- “Statement of accused Jagdev Singh son of Amrik Singh son of Gurbachan Singh, aged 32 years, Constable in Punjab Police, resident of village Talwandi Dasondha Singh, Tehsil and District Amritsar, u/s 313 Cr.P.C. Without oath. Q.1. It is in evidence against you that you was married with Jaspinder Kaur on 2.2.1997 as per Sikh religious rites in the village Gaggo Mahal. After the marriage, she lived with you in your house at village Talwandi Dasondha Singh. Out of the wedlock one male child namely Amrit Pal Singh was born. From the very day of marriage, you demanded a car in the dowry which the father of the complainant was unable to give this car to you. From the beginning you also started maltreating her due to the demand of dowry and she was turned out of the Crl. Rev. No.1077 of 2004 [7] matrimonial house. What have you to say about it? Ans. It is correct that I was married with Jaspinder Kaur and out of our wedlock a male child namely Mariti Pal Singh was born. But rest of the allegations are denied. Q.2. It is further in evidence against you that you had filed a false case in the court of Shri Kuldip Singh, the then S.S.J. Amritsar, that yourself was an unmarried, for restraining Jaspinder Kaur from filing any suit or application or any proceedings against you. You also filed a false affidavit to this respect. Jaspinder Kaur appeared in the court and got recorded her statement. What have you to say about it? Ans. It is correct. Q.3. It is further in evidence against you that Shri Kuldip Singh, the then S.S.J. filed a complaint against you u/s 182,193,199, 200 IPC in the court of Shri P.S.Virk, the then CJM, Amritsar. What have you to say about it? Ans. It is correct. Q.4. Why the witnesses have deposed against you? Ans. Why the witnesses have deposed against you? Q.5. Why this case against you? Ans. This is a false case. Q.6. Anything else to say? Ans. “My father-in-law took my wife along with him from my house and when I went to them and called my father-in- law to send my wife with me, they refused and falsely Crl. Rev. No.1077 of 2004 [8] filed a petition u/s 125 Cr.P.C. As such, I filed a suit against my wife but I am not aware about the contents of the plaint which has been drafted by my then counsel and I have been only made to sign the same. I am not aware about the contents of that suit. Q.7. Do you want to lead defense evidence? Ans. Yes.” The fact that the accused-petitioner was unmarried was disclosed to the counsel, was not put to the accused. The contents of the affidavit have also not been put to the witness. On the very first day when the issues were framed, the accused made a statement that Jaspinder Kaur was his legally wedded wife and a child was born from their wedlock. Therefore, it was incumbent for the prosecution to prove that accused has the requisite mens rea to obtain a wrong order by giving a false affidavit. The contents of the affidavit were also not put to the accused in the statement recorded under Section 313 Cr.P.C. From the above-said factual matrix, it can be safely inferred that the evidence of the prosecution was lacking to prove the offence to the hilt. Non-examination of the Advocate who drafted the plaint and the Oath Commissioner who attested the affidavit, is a lapse which cannot be over looked, especially when in the statement under Section 313 Cr.P.C., accused has taken a categoric stand that he was not aware about the contents of the plaint. Further more, I find merit in the contention raised by Mr.Sukhbir Singh Mattewal, counsel for the petitioner that the Court which had filed a complaint after holding an enquiry under Section 340 Cr.P.C. Crl. Rev. No.1077 of 2004 [9] has neither stated in the complaint Ex.P10 nor in the order dated 4.2.1999, Ex.P9 that it was expedient and in the interest of justice to hold an enquiry and to file a complaint. Formulation of such an opinion was mandatory. Reference in this regard can be made to a judgment of Hon'ble Apex Court in B.K.Gupta v. Damodar H. Bajaj and others, (2001)9 SCC 742. Para 3 of the judgment reads as under:- “3. From the above, it follows that there are two conditions on fulfilment of which a complaint can be filed against a person who has given a false affidavit or evidence in a proceeding before a court. The first condition being that a person has given a false affidavit in a proceeding before the court and, secondly, in the opinion of the court it is expedient in the interest of justice to make an enquiry against such a person in relation to the offence committed by him. It is no doubt true that the High Court has recorded a finding that the appellant has made a false statement on oath and has also used evidence known to be false and fabricated. On a perusal of the record we do not find any material on record to show that there was any application of mind by the Court that it was expedient in the interest of justice to make an enquiry and file a complaint against the appellant. We have also perused the judgment in Writ Petition No.1442 of 1983 and the judgment does not show that the Court applied its mind regarding the second condition as to whether it is expedient in the interest of justice to make an enquiry into the false evidence given by the appellant and a complaint is to be filed. In the absence of application of mind Crl. Rev. No.1077 of 2004 [10] in regard to expediency for filing complaint against the appellant, the order passed by the High Court directing the Prothonotary and Senior Master of the High Court to file a complaint against the appellant was vitiated.” Taking the totality of circumstances into consideration, this Court is of the view that the petitioner is entitled to acquittal. Hence, the present revision petition is accepted and the petitioner is acquitted of the charge. ( KANWALJIT SINGH AHLUWALIA ) May 12, 2010. JUDGE RC