Delhi High Court
Anil Kajora vs Kiran Devi And Anr. on 19 September, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 01.05.2014
Date of Decision: 19.09.2014
+ CRP 42/2014 & CM APPLs. 6854-55/2014
ANIL KAJORA ...... Petitioner
Through: Mr. S.C. Sagar, Adv.
Versus
KIRAN DEVI AND ANR. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J.
1. This petition under Section 115 of the CPC seeks setting aside of an
order dated 3rd March, 2014 passed by the learned Additional District Judge
in a proceeding under Section 340 Cr. P.C. read with Section 195 of Cr. P.C.
The proceeding related to an offence under Sections 193, 196, 200, 420,
467, 468, 471 and 344 of Indian Penal Code. The case under Section 340
Cr. P.C. pertained to commission of perjury by the respondent. The Trial
Court noted that the arguments and statement of the applicant had warranted
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the proceedings under Section 340 Cr. P.C. The Court was of the view that
non-applicant No. 2, who is 85 years old had been falsely implicated in the
application and had been subjected to harassment hence the application was
dismissed with cost of Rs.5,000/-.
2. The learned counsel for the petitioner relies upon the judgment of the
Supreme Court in Devendra Kishan Lal Dagalia v. Dwarkesh Diamonds
Pvt. Ltd. & Ors. 2014 (1) JCC (NI) 20 to contend that imposition of cost of
Rs.5,000/- was not warranted since the summons to the petitioner was on
account of the Cr.P.C. itself. The aforesaid judgment relied upon by the
learned counsel for the petitioner dealt with section 204 of the Cr.P.C. which
relates to examination of a plaint, and if the Magistrate is of the opinion that
there is sufficient ground for proceeding with the case, he shall summon the
attendance of the accused in a summons-case. Once the decision is taken
and summons are issued in the absence of power to review the same
including the inherent power to do so, the remedy would lie before the High
Court under Section 482 Cr. P.C. or under Article 227 of the Constitution of
India and not before the Magistrate. He submits that the Trial Court could
not have passed the impugned order.
3. This Court notices that the present petition has been filed not under
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Article 227 of the Constitution of India, but under Section 115 of the CPC.
It emanates from a proceeding under Section 340 Cr.P.C. and therefore,
proper remedy would lie elsewhere and not under the CPC. This Court is of
the view that provisions of Section 115 of the CPC are not attracted since
the order was passed under Section 340 Cr. P.C. Remedy, as may be against
the said order, would have to be pursued under the appropriate provisions of
the law. The petition is accordingly dismissed as being without merit.
NAJMI WAZIRI, J.
SEPTEMBER 19, 2014/acm
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