IN THE HIGH COURT OF UTTARKHAND AT NAINITAL C-482 No. 273 of 2006 Dr. Nakli Singh .……Applicant. Versus State of Uttaranchal …….….…..Respondent. Present: Mr. Lokendra Dobhal, Advocate for the revisionist. Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent. Date of Decision : 1.9.2010 Hon’ble Sudhanshu Dhulia, J (Oral) 1. Heard Mr. Lokendra Dobhal, Advocate for the revisionist and Mr. Nandan Arya, AGA for the State of Uttarakhand/respondent. 2. The applicant by means of the present application under Section 482 of Cr.P.C. has challenged the proceeding initiated against him for an offence under Section 193 of I.P.C. 3. Brief facts of the case are that a complaint was filed by the applicant against certain persons being Complaint Case No. 105 of 1991 under Section 420/406 I.P.C. In the said complaint after due process, the case proceeded against the accused persons, who were ultimately acquitted by the trial Court. However, the trial Court while acquitting the accused also observed that the present applicant in his deposition to the Court as a witness had given false evidence and therefore, the Court suo moto took cognizance of the offence under Section 193 of I.P.C. and initiated proceeding against him in the same order dated 29.3.2006. In short, the matter now proceeded against the applicant under Section 344 (1) of Cr.P.C. This order, whereby the cognizance has been taken against the applicant for the alleged offence committed by him has been challenged by the applicant on various grounds. The applicant alleges that before passing the order under Section 340, a preliminary inquiry was mandatory. 4. Section 340 of Cr.P.C. reads as under:- “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 interest 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 2 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 or by such officer of the Court as the Court may authorize in writing in this behalf.] …………..” 5. It has hence been argued that cognizance could not be taken without there first being a preliminary enquiry held by the Court. The counsel has relied upon clause (1) of Section 340 which states “after such preliminary enquiry, if any,” However this sentence is preceded by the word “may”. Therefore, it is the discretion of the Court to hold or not to hold an enquiry. 6. A perusal of the aforesaid provision shows that having a preliminary inquiry is not mandatory. It all depends on the discretion of the Court. The Court on its discretion has chosen to dispense with preliminary inquiry and has straight away initiated proceeding. Therefore, the contention as far as the preliminary inquiry is not being conducted is not correct. Since it was a complaint case, the complainant, who is present applicant before this Court has filed an Appeal the order of acquittal being Criminal Appeal No. 33 of 2006 Dr. Nakli Singh Vs. State of Uttaranchal against the acquittal, which is pending before this 3 Court. Hence the matter would also be governed by Clause (4) of Section 344 of Cr.P.C. 7. Section 344 of Cr.P.C. reads as under:- “344. Summary procedure for trial for giving false evidence.— (1) If, at the time of delivery of any judgment or final order disposing of any judicial proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had knowingly or willfully given false evidence or had fabricated false evidence with the intention that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months, or to fine which may extend to five hundred rupees, or with both. (2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials. (3) Nothing in this section shall effect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to proceed under this section. (4) Where, after any action is initiated under sub-section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub-section has been expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.” 8. Admittedly, against the acquittal an Appeal has been filed by the applicant/complainant before this Court being Criminal Appeal No. 33 of 2006 Dr. Nakli Singh Vs. State of Uttaranchal. In view of sub-section (4) of Section 344 of Cr.P.C., the proceedings initiated against the applicant are liable to be stayed. It has been stated at the bar that the proceedings have been stayed in view of the aforesaid provision. 9. Apart from the aforesaid technical objection, this Court has also examined the case on its merits. What prompted the Court to take cognizance against the applicant/complainant and initiate criminal proceeding against him is the conflicting statements given by him under 4 Sections 244 and 246 of Cr.P.C. Whereas in his deposition under Section 244 of Cr.P.C., the applicant/complainant has stated that he had gone to a Guest House located in “Chhatikhal” for engagement with Ms. Shashi Prabha with “one friend”, in his statement under Section 246 of Cr.P.C. he has stated that he had gone for engagement with Ms. Shashi Prabha, with “three friends”. There is though a discrepancy in these statements, however, it is not of such a nature or magnitude which would bring it in the ambit of a “false evidence”. In the considered view of this Court, against this discrepancy, no criminal proceeding is liable to be initiated. On merits itself, therefore, for the reasons stated above, the proceedings initiated against the applicant appear to be totally an abuse of the process of Court. Therefore, to meet the ends of justice, it is necessary to set aside the order dated 29.3.2006 as well as the proceedings in which the applicant has been summoned by the Judicial Magistrate, Srinagar, Garhwal. Therefore, the order dated 29.3.2006 so far as it relates to the proceeding initiated against the applicant for an offence under Section 193 of I.P.C. is concerned is hereby set aside. 10. The instant C-482 application is allowed. No order as to costs. 11. The Registry is directed to send a copy of this order to the Court concerned for necessary compliance. (Sudhanshu Dhulia, J) 1.9.2010 Rathour