IN THE HIGH COURT OF JUDICATURE AT BOMBAY Y CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1328 OF 2008 Jainuddin Babamiya Maniyar .. Petitioner Vs. Shraddha Sanjay Gaikwad & Ors. .. Respondents Mr.S.K.Shinde with Mr.P.R.Arjunwadkar for the Petitioner. Mr.J.P.Yagnik, A.P.P for Respondent No.2-State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 18th July 2008. P.C.: . Heard Mr.Shinde, learned Counsel for petitioner. The petitioner is the complainant who has alleged commission of offence under section 193 of I.P.C. by filing a private complaint. On the said complaint, the learned Magistrate issued a process for offence punishable under section 193 of I.P.C. The first respondent filed a criminal revision application before the Sessions Court for challenging the order issuing process. The Sessions Court has interfered and has set aside the order issuing process. 2. The allegation of the petitioner in the complaint was that he was in possession of an immovable property more particularly described in para 3 of the complaint. The allegation is that the first respondent had intentionally and fraudulently given false, frivolous and fabricated evidence along with the application dated 9th February 2001 in the form of an affidavit dated 9th February 2001. Para 6 of the complaint reads thus:- : 2 : "(6) Complainant states and submits that one Balam J. Maniyar/Shriddha Sanjay Gaikwad had intentionally and fraudulently given the false, frivolous and fabricated evidence pursuant to her application and the affidavit dated 09th February 2001 to the office of the Talathi, Dhanori, to mutate her name respecting the said plot. Complainant states and submits that so shrewed Shraddha is that in her statement and affidavit she had gone to the pitch of making averment therein that Ratanmala/Ruksana Jainuddin Maniyar "no husband". What has been stated above is a perjury. Complainant states and submits that Shraddha Sanjay Gaikwad, the accused herein, has thus rendered herself liable for penal action under Section 193 of the Indian Penal Code." 3. In para 7 of the complaint, the petitioner alleged that the first respondent has knowingly and deliberately made certain statements in the affidavits, thereby committing an act of purgery and fabricating evidence in the office of Talathi. : 3 : 4. Learned Sessions Judge held that office of Talathi is not a Court. Learned Judge also held that an affidavit cannot be treated as an evidence in view of the provisions of section 3 of Indian Evidence Act, 1872. On these two grounds, the learned Judge held that no offence was made out. 5. Learned Counsel for petitioner submitted that section 193 prescribes a punishment for false evidence and, therefore, the relevant section to be seen is section 192. The same reads thus:- "192. Fabricating false evidence.-Whoever causes any circumstance to exist or [makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement], intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such : 4 : proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence"." 6. He submitted that the document was filed in a proceeding before the Talathi who is a public servant. He submitted that the proceeding was one under the Maharashtra Land Revenue Code, 1966. He placed reliance upon a decision of Karnataka High Court, in the case of Smt.Musthan Bee Vs. H.Amir Pasha reported in 2005 Cri.L.J. 4619 and a decision of Calcutta High Court in the case of Benodini Debya and others Vs. Hridoy Nath Ghoshal and others reported in A.I.R. 1918 Calcutta 161. 7. He, therefore, submitted that a clear case of offence under section 192 of I.P.C. was made out. 8. I have carefully considered the submissions. It must be noted here that an application was made by the first respondent on 9th February 2001 to the Talathi along with which the affidavit sworn on 9th February : 5 : 2001 was filed. There cannot be a dispute that the proceedings before the Talathi are not judicial proceedings. The application dated 9th February 2001 cannot be termed as "proceeding taken by law". It is, therefore, obvious that an offence under section 192 of I.P.C. was not made out and consequently the process could not have been issued for offence punishable under section 193 of the I.P.C. 9. Reliance placed on the decision of Karnataka High Court (supra) will not help the petitioner as the issue before the Karnataka High Court was totally different. The issue was whether cognizance of offence under section 193 can be taken on the basis of a private complaint. The decision of the Calcutta High Court is in the facts of the case before it and the same does not lay down any proposition of law. No case is made out for interference. Petition is accordingly rejected. 10. It is made clear that observations made by the learned Sessions Judge as well as observations made in this order are made only for the purpose of testing legality and validity of the order passed on the complaint. The order of the Sessions Court and this order will not preclude the petitioner from taking any : 6 : other proceedings in accordance with law. (A.S.Oka, J)