Andhra Pradesh High Court - Amravati
Ganisetti Leela Padmaja vs The State Of Andhra Pradesh on 28 December, 2021
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION No.7483 of 2021
ORDER:-
Assailing the order returning the petition filed by the petitioner
under Section 340(2) r/w 195(b)(i) Cr.P.C, this Criminal Petition
under Section 482 Cr.P.C is filed.
Heard learned counsel for the petitioner and learned Additional
Public Prosecutor for the 1st respondent/State. Since this Criminal
Petition is filed only assailing the order returning the petition filed by
the petitioner, no notice is required to be given to the 2nd respondent.
Therefore, this Court is not inclined to order notice to the 2nd
respondent.
The petitioner is the plaintiff in O.S.No.304 of 2008 on the file
of the learned I Additional Junior Civil Judge, Tanuku, which was
filed for permanent injunction against the 2nd respondent and two
others. The said suit was dismissed in the trial Court. The petitioner
has preferred appeal in A.S.No.32 of 2019 on the file of the learned IV
Additional District Judge, Tanuku, against the said judgment and
decree passed by the trial Court. While the appeal is pending before
the trial Court, the petitioner has filed an application under Section
340(2) r/w 195(b)(i) Cr.P.C stating that the 2nd respondent herein has
committed an offence punishable under Section 191 r/w 193 IPC
alleging that he has given a false evidence during the course of trial
of the said suit and thereby prayed the Court to cause an inquiry in
this regard and initiate prosecution against him as per law. The
petitioner has invoked clause 2 of Section 340 Cr.P.C before the
appellate Court. Clause 2 of Section 340 Cr.P.C says that 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 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. Therefore, the petitioner by invoking clause 2 of
Section 340 Cr.P.C, has filed an application before the appellate
Court as the trial Court is subordinate to it.
The said application was returned by the impugned
endorsement by the appellate Court stating as to how the petition is
maintainable. The petitioner has answered the said objection by
relying on the judgment of the Division Bench of the Kerala High
Court rendered in the case of Lakshmi v. Santha and Ors1.
However, the said Court again returned the said application with the
same objection as to how the petition is maintainable.
A reading of Section 340(1) Cr.P.C makes it manifest that the
petitioner can file an application before the trial Court to prosecute
the concerned for giving false evidence. Now, it is relevant to note
clause 2 of Section 340 Cr.P.C thereof further clarifies that even the
Court to which the trial Court is subordinate can also entertain the
said application filed under Section 340(2) r/w 195(b)(1) Cr.P.C.
Therefore, the appellate Court is undoubtedly committed an error in
returning the petition without even registering the same on the
ground as to how the said application is maintainable.
However, it is brought to the notice of this Court by the learned
counsel for the petitioner at the time of hearing this Criminal Petition
that the said appeal is now disposed of in the appellate Court.
Therefore, the moment the appellate Court has disposed of the said
appeal, it becomes functus officio. So, the petitioner can now file a
similar application before the trial Court since Section 340 Cr.P.C
Passed in UNNUMB.CRL.A.No.16 of 2020, dated 30.04.2020
makes it clear that the said application can be filed either before the
trial Court or before the Court to which the said trial Court is
subordinate. Therefore, the petitioner can as well approach the trial
Court with a similar application. If the trial Court is satisfied with the
version of the petitioner, it can cause inquiry as contemplated under
Section 340(1) Cr.P.C and consider the said application according to
law.
So, in the said facts and circumstances of the case, the
Criminal Petition is disposed of accordingly with a direction to the
petitioner to approach the trial Court by way of filing a fresh
application under Section 340(1) r/w 195(b)(i) Cr.P.C. If any such
application is filed, the trial Court has to number the application and
consider the same according to law.
Miscellaneous petitions, if any pending, in the Criminal
Petition, shall stand closed.
_____________________________________________
JUSTICE CHEEKATI MANAVENDRANATH ROY
Date: 28.12.2021
AKN
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION No.7483 of 2021
Date: 28-12-2021
AKN
