Subham Roy Choudhury vs Sreejoyee Chakraborty
2021 Latest Caselaw 2751 Cal

Form J(2)       IN THE HIGH COURT AT CALCUTTA
                   Civil Appellate Jurisdiction
                             Appellate Side

Present :
The Hon'ble Justice Bibek Chaudhuri


                           CRR 2303 of 2019

                           Subham Roy Choudhury
                                   Vs
                           Sreejoyee Chakraborty




For the Petitioner     :     Ajoy Roy Chowdhury


Heard on         : 12.04.2021

Judgment On      : 12.04.2021




Bibek Chaudhuri, J.

This is an application under Section 482 of the Code of Criminal

Procedure filed by one Subham Roy Choudhury against his wife

Sreejoyee Chakraborty praying for quashing of the proceedings being

Misc. Case No.515 of 2016 pending before the learned Judicial

Magistrate, 2nd Court at Barrackpore and the order dated 1 st August,

2018 passed by the learned Court below rejecting the application

under Section 340 of the Code of Criminal Procedure, 1973.

It is not disputed by the petitioner that the opposite party is his

legally married wife and the said marriage was solemnized on 22 nd

February, 2016. Within five days of marriage the opposite party went

back to her paternal house for some medical test. It subsequently

transpired that the respondent was suffering from relapsed ITP Post

Spleknectomy (advance stage of cancer) for nine years prior to

marriage.

Upon discovery of the said fact, the petitioner filed a suit for

nullity of marriage being MAT Suit No.42 of 2016 presently pending

before the learned Additional District Judge, 5 th Court at Alipore,

South 24 Parganas.

The respondent in turn filed an application for maintenance

before the learned Additional District Judge at South 24 Parganas in

Matrimonial Suit No.42 of 2016 in which she made false and

fabricated statement and allegations of criminal nature by swearing

affidavit against the petitioner and his old parents which compelled

the petitioner to file an application under Section 340 of the Code of

Criminal Procedure for prosecuting the respondent under Section 193

of the Indian Penal Code for knowingly making false statement in

Court proceeding. The said application under Section 340 of the Code

of Criminal Procedure was rejected.

Being aggrieved by and dissatisfied with the said judgment and

order of rejection of the aforesaid application under Section 340 of the

Code of Criminal Procedure, the petitioner has filed an appeal being

CRA 687 of 2017 before this Court.

The opposite party also filed an application under Section

498A /406/34 of the Indian Penal Code against the petitioner and his

parents after about four months of her departure from her

matrimonial home. The petitioner filed an application for self and on

behalf of his parents praying for their discharge under Section 239 of

the Code of Criminal Procedure the said application was also rejected

by the trial Court which prompted the petitioner to file criminal

revisions being CRR 321 of 2019 and CRR 341 of 2016.

The respondent also filed an application under Section 125 of

the Code of Criminal Procedure before the learned Judicial Magistrate,

2nd Court at Barrackpore with false, fabricated and contradictory

statement and allegations against the petitioner and her parents

which itself is chargeable for making false statement on affidavit

before the Court and for false evidence under Section 191 of the

Indian Penal Code and punishable under Section 193 of Indian Penal

Code. The petitioner filed an application under Section 340 of the

Code of Criminal Procedure praying for drawing up prosecution under

Section 193 of the Indian Penal Code against the respondent. The

said application was however, rejected by the learned trial Court

vide an order dated 1st August, 2018. Against the said order the

petitioner filed an appeal being CRA No. 452 of 2016 under Section

341 of the Code of Criminal Procedure before this Court and the said

appeal is still pending.

It is submitted by the petitioner that unless the proceeding

being Misc. Case No. 515 of 2016 under Section 125 of the Code of

Criminal Procedure is not rejected for committing perjury under

Section 340 of the Code of Criminal Procedure and another

proceeding in Misc. Case No. 515 of 2016 be quashed, the petitioner

will suffer irreparable loss and injury. It is also submitted by the

petitioner that the entire proceeding in Misc. Case No. 515 of 2016

being filed on assertion of false and fabricated statement is abusive

of the process of Court and the said proceeding should be quashed to

secure the ends of justice.

Learned advocate for the petitioner first draws my

attention to Section 195 of the Code of Criminal Procedure. Section

195 deals with the prosecution for contempt of lawful authority of

public servants, for offences against public justice and for offences

relating to documents given in evidence. The object of Section 195(1)

(b) is that it is the Court before which an offence is alleged to have

been committed in respect of a document produced in a proceeding

before it which should file or caused to be filed a complaint and not

a private party. Commission of perjury in respect of a document

produced or given in evidence in a proceeding in any Court

committed prior to filing of that application before Court creates a

bar under Section 195 (1)(b)(ii) of the Code of Criminal Procedure

that no Court shall take cognizance of any such offence on the

complaint in writing of the Court concerned was not attracted to

this case. Criminal complaint under Section 193 for false statement

made by the respondent is cognizable by the Court under Section 195

only when the allegation of false and fabricated statement and

perjury created by the respondent is proved on the basis of evidence

on record during trial of the case.

Section 340 of the Code of Criminal Procedure lays down

the provisions as to offences affecting the administration of justice.

Section 340 runs thus:

"Section 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 interests

of justice that an enquiry 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 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).

(4) In this section, "Court" has the same meaning as in

Section 195."

Section 341 is the provision of appeal which reads as

hereunder:

"341. Appeal.- (1) Any person on whose application any

Court other than a High Court has refused to make a complaint

under sub-section (1) or sub-section (2) of Section 340, or against

whom such a complaint has been made by such Court, may appeal

to the Court to which such former Court is subordinate within the

meaning of sub-section (4) of Section 195, and the superior Court

may thereupon, after notice to the parties concerned, direct the

withdrawal of the complaint, or, as, the case may be, making of the

complaint which such former Court might have made under Section

340, and if it makes such complaint, the provisions of that section

shall apply accordingly.

(2) An order under this section, and subject to any such

order, an order under Section 340, shall be final and shall not be

subject to revision.

Plain reading of Section 341(1) suggests that if a Court has

refused to make a complaint on the basis of an allegation filed by any

person in a proceeding under sub-section (1) or sub-section (2) of

Section 340, or against whom such a complaint has been made by

such Court, may appeal to the Court to which such former Court is

subordinate within the meaning of sub-section 4 of Section 195.

Careful reading of Section 193, 195 and Section 340 and

341 suggest that in relation to offences affecting the administration

of justice, it is the Court which happens to be the complainant and

since an offence under Section 193 is triable by the Court of the

learned Magistrate, the trial Court shall send the complaint to the

learned Magistrate having jurisdiction to try the case. The learned

Magistrate shall try the case by serving notice to the parties. The

order passed by the Court of trial is appealable to the next higher

Court.

Therefore, an order passed under Section 340 of the Code of

Criminal Procedure is appealable before the learned Sessions Judge

under Section 341 of the Code of Criminal Procedure. The learned

advocate for the petitioner refers to a decision of the Hon'ble

Supreme Court in the case of Perumal -vs- Janaki, reported in

(2014) 1 S.C.R 591.

Learned advocate for the petitioner has referred to

paragraphs 24, 25 and 26 of the above mentioned report which is

quoted below :

"24. It can be seen from the language of Section

195 (4), Cr. P.C. that it creates a legal fiction whereby it is

declared that the original Court is subordinate to that court to

which appeals ordinarily lie from the judgements or orders of

the original court (hereinafter referred to as 'the appellate

court'). In our view, such a fiction must be understood in the

context of Article 227 of the Constitution of India and Section

10 (1) and 15 (1) of Cr. P.C. Article 227 confers the power of

superintendence on a High Court over all courts and tribunals

functioning within the territories in relation to which a High

Court exercises jurisdiction. Section 10 (1) and 15(1) of

Cr. P.C. declare that the Assistant Sessions Judge and Chief

Judicial Magistrate are subordinate to the Sessions Judge and

other Judicial Magistrates to be subordinate to the Chief

Judicial Magistrate subject to the control of the Session Judge.

It may be remembered that Section 195(4) deals with the

authority of the superior courts in the context of taking

cognizance of various offences mentioned in Section 195 (1).

Such offences are relatable to civil, criminal and revenue

courts etc. Each one of the streams of these courts may have

their administrative hierarchy depending upon under the law

by which such courts are brought into existence. It is also well

known that certain courts have appellate jurisdiction while

certain courts only have original jurisdiction. Appellate

jurisdiction is the creature of statute and depending upon the

scheme of a particular statute, the forum of appeal varies.

Generally, the appellate for a are created on the basis of either

subject matter of dispute or economic implications or nature of

crime etc.

"25. Therefore, all that sub-section (4) of Section

195 says is that irrespective of the fact whether a particular

court is subordinate to another court in the hierarchy of judicial

administration, for the purpose of exercise of powers under

Section 195(1), every appellate Court competent to entertain

the appeals either from decrees or sentence passed by the

original Court is treated to be a Court concurrently competent

to exercise the jurisdiction under Section 195 (1). High Courts

being constitutional courts invested with the powers of

superintendence over all courts within the territory over which

the High Court exercises its jurisdiction, in our view, is

certainly a Court which can exercise the jurisdiction under

Section 195(1). In the absence of any specific constitutional

limitation of prescription on the exercise of such powers, the

High Courts may exercise such powers either on an application

made to it or suo moto whenever the interests of justice

demand."

"26. The High Courts not only have the authority to

exercise such jurisdiction but also an obligation to exercise

such power in appropriate cases. Such obligation, in our

opinion, flows from two factors- (1) the embargo created by

Section 195 restricting the liberty of aggrieved persons to

initiate criminal proceedings with respect to offences

prescribed under Section 195; (2) such offences pertain to

either the contempt of lawful authorities of public servants or

offences against public justice."

The observation made by the Hon'ble Supreme Court in

paragraph 25 is stressed upon by the learned advocate for the

petitioner. Careful reading of paragraph 24 suggests that sub-section

4 of Section 195 states that irrespective of the fact whether a

particular Court is subordinate to another Court in the hierarchy of

judicial administration, for the purpose of exercise of powers under

Section 195 (1), every appellate Court competent to entertain

the appeals either from decrees or sentence passed by the

original Court is treated to be a Court concurrently competent

to exercise the jurisdiction under Section 195 (1)(empahsis

supplied).

On factual score it is ascertained that the trial of the Misc.

case No. 515 of 2016 has not been started yet. Whether the

petitioner in a case under Section 125 of the Cr. P. C. has made false

and fabricated allegation or not can only be decided upon enquiry

at the stage of trial. In the instant case hearing of the case has not

been started. On the other hand the trial Court passes an impugned

order on 1st August, 2018 without making any enquiry.

In view of such circumstances, while this Court finds that

Section 482 has no manner of application in the instant case, the

order passed on 1st August, 2018 in Misc. case No. 515 of 2016

under Section 125 of the Code of Criminal Procedure is set aside.

The learned Judicial Magistrate, 2 nd Court, Barrackpore is

directed to pass an order on the application filed by the petitioner

upon due enquiry along with trial of the case to see as to whether

the allegation made by the petitioner is truthful or not. If the

allegation is found to be truthful, the petitioner is at liberty to take

step in accordance with Section 195 of the Code of Criminal

Procedure.

Accordingly, the instant criminal revision is disposed of.

Urgent photostat certified copy of this order, if applied for, be

made available to the parties upon compliance of the requisite

formalities.

( Bibek Chaudhuri, J. )