Gujarat High Court
Gobarbhai Mahadevbhai Thesia vs State Of Gujarat on 2 August, 2021
Bench: B.N. Karia
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9411 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 10530 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
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1 Whether Reporters of Local Papers may be allowed -YES-
to see the judgment ?
2 To be referred to the Reporter or not ? -YES-
3 Whether their Lordships wish to see the fair copy -NO-
of the judgment ?
4 Whether this case involves a substantial question -NO-
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
CRIMINAL MISC. APPLICATION NO. 9411 OF 2017
GOBARBHAI MAHADEVBHAI THESIA
Versus
STATE OF GUJARAT & 1 other(s)
CRIMINAL MISC. APPLICATION NO. 10530 of 2017
BHAGWANJIBHAI HARIBHAI VADODARIYA
Versus
STATE OF GUJARAT & 1 other(s)
======================================
Appearance:
IN CRIMINAL MISC. APPLICATION NO. 9411 OF 2017
MR TUSHAR L SHETH(3920) for the Applicant(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
IN CRIMINAL MISC. APPLICATION NO. 10530 OF 2017
MR ANKIT SHAH for the Applicant(s) No. 1
Page 1 of 25
Downloaded on : Sun Jan 16 05:13:45 IST 2022
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
LAW OFFICER BRANCH(420) for the Respondent(s) No. 2
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 2
MR HK PATEL, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 02/08/2021
COMMON ORAL JUDGMENT
1. Rule returnable forthwith in Criminal Misc. Application
No. 9411 of 2017. Learned APP waives service of notice of rule
for and on behalf of the respondent-State and learned advocate
Ms. Trusha K. Patel waives service of notice of rule for and on
behalf of the Respondent No.2.
2. As the issue involved in these both the applications are
arising out of the same FIR, thus both of these applications are
concluded with common order with the consent of either side.
3. Present both the applications have been filed by the
respective applicants praying to quash and set aside the
complaint being C.R.No. I-40 of 2017 registered with Dhoraji
Police Station, Rajkot Rural for the offence punishable under
Sections 193, 200, 420 and 114 of the Indian Penal Code and
consequential proceedings arising therefrom.
4. The factual matrix of this case arises from the complaint
lodged against the applicant in Criminal Misc. application No.
9411 of 2017 that he is a practicing advocate at Dhoraji,
District: Rajkot, who represented as an advocate before the
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
Motor Accident Claims Tribunal in M.A.C.P. No. 430 of 2012
(Old No.194 of 2010), the original claimants who are the
applicants in Criminal Misc. Application No. 10530 of 2017
and the FIR is registered against the original claimants, who
have lost their son in the motor vehicular accident and against
the applicant being an advocate of that claimants. As alleged in
the FIR, claimants ie. Bhagwanjibhai Haribhai Vadodaria and
Lilaben Bhagwanjibhai Vadodaria in Claim Petition No. 430 of
2012 before the Motor Accident Claims Tribunal, District
Court, Rajkot at Dhoraji have filed claim petition along with
affidavit in support of their claim. An affidavit on examination
in chief and written arguments through advocate were also
filed. It is further alleged in the complaint that the age of the
deceased son was mentioned as 18 years. It is further alleged
that in the aforesaid document, income of the deceased was
shown as Rs. 12,000/- per month though it was within
knowledge of the advocate and original claimants that
deceased was a minor, however, in the claim petition, affidavit
of examination in chief and in the written arguments also, the
age of the deceased was shown as an adult and thereby,
claimants have misguided the Tribunal for getting more
compensation and by this way, they have filed false affidavit of
the original claimants before the Tribunal and have colluded
with each other and helped each other. From the record, it
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appears that the Claim Petition No. 430 of 2012 (Old No. 194
of 2010) was filed by the original complainant through their
learned advocate Mr. Gobarbhai Mahadevbhai Thesia, who is
the applicant in Criminal Misc. Application No. 9411 of 2017.
On the basis of the information supplied to him by the original
claimants namely Bhagwanjibhai Haribhai Vadodaria and
Lilaben Bhagwanjibhai Vadodaria, such claim petition was
filed. The Motor Accident Claims Tribunal, vide judgment and
award dated 16.03.2017, in para 14, has inter-alia observed
that the claimants have shown wrong age of the deceased for
getting higher compensation and learned advocate has not
taken into consideration the real age shown in the School
Leaving Certificate and searched the truth about the age of the
deceased and mentioned wrong age and also identified the
applicant and produced the affidavit before the learned
Tribunal for consideration.
5. In the operative part of the order in para 6, it was
ordered to issue notice to the petitioners as well as their
advocate. In pursuance of the observations made in the
judgment, Registrar of the MACT, Dhoraji issued a show cause
notice to the petitioners on 16.03.2017 ie., on the very same
day of the pronouncement of the judgment inter-alia stating
that though the deceased was minor at the time of accident, in
the claim petition, affidavit of examination in chief and in a
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written arguments, his age has been shown as 18 years
meaning thereby he was adult on the date of accident. It was
further stated that actually as per the School Leaving
Certificate, age of the deceased was 17 years and 6 months.
Moreover, it was further stated on oath that the
petitioner/advocate is in the profession of advocacy and
having knowledge of law, however, by filing false affidavit of
claimants, minor was shown as adult to see that the Tribunal
may take the income of the deceased as major. That, the reply
of the show cause notice was submitted by the present
petitioner on 7th April 2017. The petitioner namely Gobarbhai
Mahadevbhai Thesia (applicant in CRMA 9411 of 2017)
interalia stated that the age of the deceased was stated in the
claim petition as 18 years, affidavit of examination-in-chief
and written arguments as per the instructions from the
claimants, the school leaving certificate of the deceased is
produced on record, the affidavit was affirmed before the
registry of the court declaring that he has read and understand
what is stated in the affidavit and the contents are true and
correct. It was further answered in the reply of the show cause
notice that the age of the deceased was not shown as major as
the running age was shown. Moreover, the evidence of the age
was also produced, and therefore, same was not suppressed
and hence, no question of claiming more compensation. That,
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legal submissions were advanced for getting compensation in
accordance with law. It was further answered that in the
written arguments, judgments of Hon'ble High Court and
Hon'ble Supreme Court rendered in the cases of minor have
been referred as well as other judgments. It was further
answered that no professional misconduct was there on his
part and no any false fact was stated by him. If there was any
intention to show the deceased as major then the age would
have been shown more than 18 years and the true fact of age is
brought on record by submitting school leaving certificate. It
was ultimately requested to withdraw it and file the notice.
6. The original claimants in MACP No. 430 of 2012
(applicants in CRMA 10530 of 2017) while replying the show
cause notice on 7th April 2017, inter-alia stated that the age of
the deceased was stated as 18 years in the claim petition and
affidavit of examination-in-chief, the running age of the
deceased was shown as 18 years, however, proof of birth
certificate was also produced, therefore, there was no intention
for showing 18 years to get more compensation. It was further
stated that they have not stated the age of the deceased as adult
in the claim petition or affidavit of examination in chief, they
were not aware about the fact and law that the running age is
18 years then 18 years should not been written or stated and
tendered apologies before the Tribunal. The learned Tribunal
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Judge, was not satisfied to accept the answer given by the
petitioners and on the very same day ie., on 7 th April 2017
passed an order to register a criminal complaint. Then
Registrar, MACT(Aux) Dhoraji filed a criminal complaint to
Police Inspector, Dhoraji Police Station against the petitioners
including their advocate, pursuant to which, an FIR came to be
registered being CR NO. I-40 of 2017 with Dhoraji Police
Station, Rajkot (Rural) for the offence punishable under
Sections 193, 200, 420 and 114 of the Indian Penal Code.
7. Heard learned advocate Mr. Tushar L. Sheth appearing
for the applicant in Criminal Misc. Application No. 9411 of
2017 and learned advocate Mr. Ankit Shah appearing for the
applicant in Criminal Misc. Application No. 10530 of 2017;
learned advocate Ms. Trusha K. Patel appearing for the
respondent no.2 and learned APP Mr. H. K. Patel appearing for
the respondent-State in both of these applications.
8. Learned advocate Mr. Tushar L. Sheth appearing for the
applicant in Criminal Misc. Application No. 9411 of 2017 has
submitted that the applicant is an advocate in MACP No. 430
of 2012 and was appeared for the original claimants namely
Bhagwanjibhai Haribhai Vadodaria and Lilaben Bhagwanjibhai
Vadodaria of village Motidudhivadar, Ta: Jamkandorana. It is
further submitted that he is practicing advocate since last 32
years and is dealing with the cases relating to Motor Vehicle
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
Act and Workmen Compensation Act. That, an opinion was
given by the learned Motor Accident Claims Tribunal in the
judgment to the effect that the age of the deceased was
different. It is further submitted that in fact, age of the
deceased was not shown as an adult in any of the documents,
and therefore, there is no misconduct on the part of the
applicant. That, the running age of the deceased was
mentioned as 18 years instead of 17 years and 6 months in the
claim petition, affidavit of examination-in-chief and in the
written arguments. That, the opponents No.2 and 4 Insurance
Companies have filed their written submissions and written
statements at Exh. 36, wherein they have not raised any
ground stating that the age is wrongly shown to get more
compensation. That, no case is made out against the applicant
for giving false evidence as defined under Section 191 of IPC
which is punishable under Section 193 of IPC. Similarly, no
false declaration was made and therefore, the case would not
fall under Section 200 of IPC. He has referred the copy of the
claim petition preferred by the original claimants; school
leaving certificate of the deceased namely Nirav
Bhagwanjibhai showing his birth date as 10 th September 1992,
pleadings of the claim petition preferred by the original
claimants, written submissions made on behalf of the
Insurance Company ie., the New India Assurance Company
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
Limited and HDFC ERGO General Insurance Company Limited,
Examination in chief on oath of the original claimant namely
Lilaben Bhagwanji Vadodariya. It is further submitted that
before registering the complaint against the present applicant,
the reply given by the applicant to the show cause notice
should have been considered by the learned Tribunal Judge in
its true perspective. That the decision of filing the FIR has been
taken arbitrarily on the same day. That, even no preliminary
inquiry was envisaged under Section 340 of IPC nor
satisfactory findings were recorded. That, the award passed by
the learned Tribunal in MACP No. 430 of 2012 has got finality
and is not challenged by Insurance Companies. There was no
difference in the amount of compensation awarded to the
original claimants by the learned Tribunal. That, no case is
made out against the applicant under Section 415 of the IPC as
he has not deceived the court nor fraudulently or dishonestly
inducted the court by deceiving it, as the running age of the
deceased is mentioned as 18 years as per the instructions of
claimants. That, FIR is not maintainable in view of bar created
in Section 195 of the Code of Criminal Procedure, as no court
shall take cognizance of Section 193 and 200 of IPC except any
complaint in writing of that Court or by such officer of the
Court. That, there is no disclosure how the applicant is found
guilty under Section 193, 200, 420 and 114 of the Indian
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
Penal Code. Hence, it as requested by learned advocate for the
applicant in Criminal Misc. Application No. 9411 of 2017 to
quash and set aside the complaint being C.R.No. I-40 of 2017
registered with Dhoraji Police Station, Rajkot Rural for the
offence punishable under Sections 193, 200, 420 and 114 of
the Indian Penal Code and consequential proceedings arising
therefrom qua the applicant.
9. Learned advocate Mr. Ankit Shah appearing for the
applicants in Criminal Misc. Application No. 10530 of 2017
has submitted that claim petition No. 430 of 2012 was
preferred by the present applicants under Section 166 of the
MV Act before the learned Tribunal. That, such claim petition
was decided by the learned Tribunal Judge on 16 th March
2017. In that judgment, in para 14, it was observed that "in
the petition Exh.1 as well as in the affidavit filed by applicant
no.2, the age of the deceased Niravkumar was shown as 18
years on oath, but to support the age they have produced his
School Leaving Certificate at Exh. 47, wherein the date of birth
is shown as 10th September 1992 and the date of accident was
dated 14th March 2010, and therefore, at the time of accident,
deceased was aged 17 years and 6 months and not more than
18 years. In view of the observation made in para 14, in the
operative part of the order in para 6, it was ordered to issue
notice to the applicants as well as their advocate. That, on the
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very same day of the judgment, show cause notice was issued
to the present applicant. It is further submitted that reply was
given by the present applicant in detailed on 7 th April 2017
interalia stating that running age of the deceased was 18 years
and therefore, she was shown as 18 years but not for getting
more compensation. That, the applicant has never stated the
age of the deceased as adult in the claim petition or affidavit on
examination in chief. That, without considering the reply of
the applicants, on 7th April 2017, the Registrar, MACT (Aux.),
Dhoraji has given written complaint to the to the Police
Inspector, Dhoraji Police Station for registering the FIR against
the applicants. That, the FIR itself is not maintainable in view of
the bar created under Section 195 of the Code of Criminal
Procedure, as no court can take cognizance of the offence
punishable under Section 193 and 200 of the Indian Penal
Code except on the complaint in writing. That, the applicant
has never decieved the court nor fraudulently or dishonestly
induced the court by deceiving it, as the running age of the
deceased is mentioned as 18 years and they have tendered the
school leaving certificate of the deceased, which shows correct
age of the deceased. Hence, it was requested by learned
advocate for the applicants in Criminal Misc. Application No.
10530 of 2017 to quash and set aside the complaint being
C.R.No. I-40 of 2017 registered with Dhoraji Police Station,
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
Rajkot Rural for the offence punishable under Sections 193,
200, 420 and 114 of the Indian Penal Code and consequential
proceedings arising therefrom.
10. Per contra, learned advocate for the respondent no.2 in
both of these applications has strongly objected the
submissions made by learned advocates appearing for the
applicants in these petitions and submitted that there was an
intention of the respective applicants to induce the court and
complainant to show the age of the deceased as major,
however, deceased was a minor. Material facts are suppressed
by the respective applicants in their claim petition before the
learned Tribunal. Being an advocate, it is pious duty to produce
correct information before the learned Tribunal, which is
supported by documentary evidence supplied to him and
instead of doing so, the age of the deceased has been shown as
major instead of minor. That, the respective applicant, being
practicing advocate, must be conversant with the record. That,
the age of the deceased was shown as 17 years in post mortem
report and the respective applicants have tried their level best
to convince the court that the deceased had attained majority
and also supported it by mentioning on oath, petition, written
arguments. On such conduct, the learned Tribunal was pleased
to issue show cause notice calling upon the explanation of the
petitioners as to why such type of misrepresentation had been
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made by them. That, from the School Leaving Certificate
produced on record, age of the deceased was found to be 17
years and 6 months wherein in the affidavit it was shown as
18 years. That, the applicants have deliberately tried to show
that the deceased had attained majority with sole intention to
believe the income of the deceased as major in order to get
higher monetary benefits from the learned Tribunal. That, the
learned Tribunal has given an opportunity to the original
claimants as well as their learned advocate to clarify as to why
age of the deceased is shown as 18 years though he was minor.
That neither the claimants nor the applicants made satisfactory
submissions before the learned Tribunal. That, there is no
malafide intention on the part of the judicial officer or the
Registrar of the learned Tribunal in lodging complaint. At the
end, it was requested by learned advocate for the respondent
no.2 in both of these applications to dismiss both the
applications.
11. Learned APP for the respondent-State in both of these
applications has supported the arguments advanced by learned
advocate for the respondent No.2 and submitted that in the
complaint itself, it is clearly stated that the original claimants
have filed their claim petition No. 430 of 2012 before the
learned Tribunal and in the affidavit of examination in chief,
the age of the deceased was shown as 18 years, meaning
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thereby adult and she was earning Rs. 12,000/- per month
before the accident. That, learned advocate appeared for the
original claimants before the learned Tribunal was knowing
well that the deceased was minor, however, he had made false
statement on oath in the affidavit filed by the original
claimants as well as in the written arguments about the age of
the deceased as adult and thereby, they misguided the learned
Tribunal for getting more compensation and in this way, they
have filed false affidavit before the learned Tribunal of the
claimants, and therefore, act committed by the applicants
clearly falls under the purview of Sections 193, 200 and 420
read with Section 114 of the Indian Penal Code. Hence, it was
requested by learned APP for the respondent-State in both
applications to dismiss these applications.
12. Having heard learned advocates for the respective parties
as well as learned APP for the respondent-State in these
applications.
13. First of all we refer Section 191 of the Indian Penal Code;
"Section 191 of the Indian Penal Code is reproduced as under:
Section 191: Giving false evidence.--Whoever, being legally
bound by an oath or by an express provision of law to state the
truth, or being bound by law to make a declaration upon any
subject, makes any statement which is false, and which he either
knows or believes to be false or does not believe to be true, is said
to give false evidence.
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Explanation 1.--A statement is within the meaning of this section,
whether it is made verbally or otherwise.
Explanation 2.--A false statement as to the belief of the person
attesting is within the meaning of this section, and a person may
be guilty of giving false evidence by stating that he believes a
thing which he does not believe, as well as by stating that he
knows a thing which he does not know."
14. Section 193 of the Indian Penal Code provides for
punishment for intentionally given false evidence in any stage
of a judicial proceedings for fabricating false evidence for the
purpose of being used in any stage of a judicial proceedings.
15. If we refer the documents produced on record by the
applicants before the learned Tribunal in MACP No. 430 of
2012 preferred by the original claimants-parents of the
deceased, the age of the deceased was shown as 18 years in
Para 2(b) of the claim petition. The motor accident was
occurred on 14.03.2010 at around 08.30 p.m. in the night. In
para 11 of the petition preferred by the parents at page no.3 in
clause 11 para 2 it was stated that:
"the deceased was hell and hearty and below the age of
18 years, unless he had not lost his life, he could have
lived 90 years but on account of sad demise of their son,
they have suffered a great mental shock and pain"
16. True that, in para No. 2(b) of the claim petition, age of
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the deceased was shown as 18 years but further they have
shown the age of the deceased below 18 years in their claim
petition itself. It further appears that vide Exh. 32, original
petitioners have produced documentary list wherein School
leaving Certificate of the deceased dated 31.05.2008 was
produced at serial No. 1. If we refer School Leaving Certificate
issued by Shri Kumar Vidhyalaya- Jamkandorana dated
31.05.2008, birth date of the deceased namely Vadodariya
Nirav Bhagwanjibhai was shown as 10th September 1992. The
written statement was filed by the New India Assurance
Company Limited and others before the Tribunal. Page No.3 in
para 6, it was submitted as under:
"To prove the age of deceased, claimants have produced birth
certificate, wherein the age of the deceased is mentioned to be
10.09.1992 which means deceased was 18 years old at the time of
accident. It is submitted that as per claim petition, mother of deceased
was 40 years old and father of deceased was 42 years old. It is
submitted that to prove the age of claimants, they have not produced
any evidence. AS per the judgment of Hon'ble Apex Court, multiplier
should be considered as per the age of claimants and not as per the age
of deceased and, therefore, considering the age of parents of deceased,
15 years multiplier should be adopted"
17. Another written statement was produced by the
Opponent No.4-HDFC Ergo General Insurance Company
Limited, in connection with the age and income of the
deceased, Opponent No.4 contested the claim petition in para
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21, which reads as under:
"21. The contents of para (1) to (9) of the claim application
regarding the age and income of the deceased, date, time and place of
the alleged accident, involvement of the vehicle No. GJ-05-AR-9631
Maruti 800, the deceased Niravkumar sustained injuries in the so
called accident and died due to the injuries sustained in the accident is
not true and not admitted. The applicants must be put to strict proof
thereof"
18. Examination In chief was filed by the mother of the
deceased namely Lilaben Bhagwanjibhai Vadodaria before the
learned Tribunal vide Exh. 33 and in para 4 thereof, it is stated
that "my son was hell and hearty and at the age of 18 years, if
he could not meet with motor vehicular accident, maximum he
might have alived up to 70 years. They have suffered mental
shock on account of sad demise of their son. There was no
working member in the family after the death of their son as
he was the only son.
19. It also appears that written arguments were submitted by
the original claimants before the learned Tribunal including
School Leaving Certificate of the deceased vide Exh. 47
showing the correct birth date of the deceased. Certain
judgments of the Hon'ble Supreme Court of India as well as
High Courts were also cited in the written arguments.
20. Learned Tribunal, while passing the judgment and award
dated 16.03.2017, has observed in para 14 that:
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14. As it is observed by this tribunal that in the petition Exh. 1
as well as in the affidavit filed by the applicant No.2, the age of
the deceased Niravkumar was shown as 18 years on aoth, but to
support the age they have produced his school leaving certificate
at Exh. 47, the birth date of the deceased Niravkumar was stated
as 10-09-1992 and the date of accident was dated 14-03-2010,
therefore, at the time of accident, the applicant was aged 17 years
and 6 months and not more than 18 years. Further the applicants
have produced the salary Certificate of Krishna Fashion at Mark
32/8 and when it is proved that the deceased was studying in
Diploma Mechanical Engineering, it looks like the documents is
got up. Further, considering the documents, the applicants have
stated on aoth in petition as well as affidavit that the deceased was
aged 18 years to show the more income than notional income of
the deceased, who is only studying and minor at the time of
accident. Therefore, the applicants have stated wrong age of the
deceased for getting higher compensation than they deserved to
be, which is required to be depricated. Further, the learned
advocate for the applicant side has also not taken into
consideration the real age shown in school leaving certificate and
search the truth about the age of deceased and mentioned wrong
age and also identified the applicant prepared and produced the
affidavit before the tribunal for consideration. Therefore he aslo
liable for professional misconduct. Therefore, the applicants as
well as their advocates are liable to be taken actions against them
as per IPC and before initiating criminal proceeding it is required
to given an opportunity to applicant and his advocate to explain
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and show why they have mentioned adult age of deceased instead
of minor under the provision of rules of natural justice, therefore,
it is required to issue notices against applicants as well as their
advocates for why not taking action against the Indian Penal
Code.
21. True that in proceedings of MACP preferred by the
parents of the deceased, mistakenly, the age of the deceased
was mentioned as 18 years, but we cannot forget the school
leaving certificate of the deceased produced on record by the
petitioner vide Exh. 47 showing exact birth date of the
deceased ie., 10th September 1992. Further more, we cannot
forget the averments made in the claim petition preferred by
them in para 11 stating that the deceased was below 18 years
of age and accident was occurred on 14 th March 2010 and
actual age of the deceased on the date of accident, as observed
by the learned Tribunal, was 17 years 6 months. As per the
evidence produced before the learned Tribunal, age of the
deceased was 18 years but it was the running age as per the
averments made by the petitioners before the learned Tribunal
in their claim petition and compensation was awarded by the
learned Tribunal by considering the age of the deceased as 17
years on inquiry made by this Court, judgment and award
passed by learned Tribunal on 16.03.2017 in MACP No. 430
of 2012 has got finality as they are not challenged by the
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Insurance Company or any party before the higher forum. The
compensation as awarded by the learned Tribunal is also
received by the petitioners-parents of the deceased. There is no
finding of the learned Tribunal that claim made by parents was
false. The parents and an advocate before this court are seeking
to enforce or protect the interests or rights of the writ
petitioners, purely based on legal contentions saying that they
cannot be termed as "playing of a fraud by them against the
Court."
22. In case of S. Palani Velayutham & Ors. versus District
Collector, Tirunvelveli, Tamil Nadu & Ors. reported in
2009(10) SCC 664, Hon'ble Apex Court has held that the
power to order a prosecution has to be used sparingly and in
exceptional circumstances, either to maintain the majesty of
law or to ensure that clearly established offences relating to
fraud/forgery with reference to court proceedings do not go
unprosecuted or unpunished. Ordering prosecutions in a
casual manner while reversing the decision of a learned Single
Judge in a writ petition, without any investigation or enquiry
either by itself or by any independent investigation agency, is
to be deprecated. Criminal law cannot be set into motion
against a litigant, as a matter of course.
23. Section 340 of Code of Criminal Procedure 1973 lays
down a special procedure, which applies to persons who has
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committed in relation to the proceedings before the court or as
the case may be in respect of the document produced or given
in evidence in a proceeding in that forum and such court may
after such preliminary inquiry, if any, as it appears necessary
to make a complaint thereof in writing into any offence
referred to in Clause(b) of Sub Section 1 Section 195.
24. Under Section 193 of IPC, before initiating prosecution, it
should be the opinion of the Court that prima facie the person
in guilty of an offence of giving false evidence or of fabricating
false evidence for the purpose of being used in a judicial
proceedings with an intention the first reference to an offence
under Section 191/193 and second to that under Sections
192/193 of the Indian Penal Code. In respect of such offences
when committed by a witness action under Section 340 of the
Code of Criminal Procedure can be taken. The petitioners in
Criminal Misc. Application No. 10530 of 2017 are the original
claimants and Lilaben Bhagwanjibhai Vadodaria was the
witness before the learned Tribunal and she has fabricated
false evidence. If any prosecution was to be supported against
the petitioners, learned Tribunal ought to have filed the
procedure under Section 340 of the Code of Criminal
Procedure not have done so, the action to initiate prosecution
under Section 193, 200, 420 and 114 of the Indian Penal Code
was not open because of Section 340 of Code of Criminal
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
Procedure. The act of giving false evidence at any stage of the
judicial proceedings and the act of fabricating false evidence
for the purpose of being used in any stage of a judicial
proceedings mainly Section 195 of Indian Penal Code are the
act which are made punishable under Section 193 of the
Indian Penal Code. It will be unreasonable to read into section
340 of Code of Criminal Procedure the meaning that where a
person who appears to have have committed an offence under
Section 193 of the Indian Penal Code by giving false evidence
or fabricating false evidence appears to have committed some
other offence also, say, forgery, cheating, for the very purpose
of fabricating false evidence and complaint for such other
offence also can be made under Section 195 of the Indian
Penal Code following the procedure as provided under Section
340 of the Code of Criminal Procedure.
25. Section 340 of the Code of Criminal Procedure has no
application to prosecution for offences other than an offence
under Section 193 of the Indian Penal Code. Further as
observed by this Court that at one stage, age of the deceased
was shown as 18 years in column no.2 of the claim petition
and thereafter, in column no.11, it was stated below 18 years,
thus parents of the petitioner have made contradictory
statements at two different stages in judicial proceedings,
would not by itself always sufficient to justify a prosecution for
R/CR.MA/9411/2017 JUDGMENT DATED: 02/08/2021
perjury under Section 193 of the Indian Penal Code, but it
must be established that the deponent has intentionally given a
false statement in any stage of the 'judicial proceedings' or
fabricated false evidence for the purpose of being used in any
stage of the judicial proceedings. Further, such a prosecution
for perjury should be taken only if it is expedient in the interest
of justice.
26. Further in a case of AIR 1978 SC 1753, it is held that
prosecution for perjury should be sanctioned by courts only in
those cases where it appears to be deliberate and conscious and
the conviction is reasonably probable or likely. It is also well
recognized that there must be a prima facie case of deliberate
falsehood on a matter of substance and the court should be
satisfied that there is reasonable foundation for the charge. In
cases of this nature, it is highly desirable and indeed very
necessary that the portions of the witness's statement in regard
to which he has, in the opinion of the court, perjured himself
should be specifically set out in or form annexure to the notice
issued to the accused so that he is in a position to furnish an
adequate and proper reply in regard thereto and be able to
meet the charge.
27. The necessary ingredients to attract Section 420 of the
Indian Penal Code are (1) abetting (2) dishonest inducement to
deliver property or to make, alter or destroy any valuable
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security or anything which is sealed or is capable of being
converted into a valuable security and (3) means rea of the
accused at the time of making the inducement. From the
record, in the present case, there is no evidence to show that
there was such fraudulent dishonest intention on the part of
the petitioners in claiming compensation before the learned
Tribunal in their petition under the provisions of MV Act
showing the age of the deceased as 18 years, however, birth
date of the deceased was also placed on record correctly
showing the birth date of 10th September 1992. Admittedly, at
the time of filing the claim petition by the original claimants
before the learned Tribunal, the deceased was more than 17
years and 6 months and his age was running 18 years on the
date of accident ie., 14.03.2010. Since ingredients of Section
420 of the Indian Penal Code were not established prima facie,
initiating proceedings under Section 420 of the Indian Penal
Code against the petitioners cannot be sustained.
28. Mere allegations of fraud or cheating in the complaint is
not sufficient for taking cognizance of the offence, particularly,
when the accused/petitioners preferred their claim petition on
the account of sad demise of their son in a motor vehicular
accident occurred on 14.03.2010 and the petitioner in
Criminal Misc. Application No. 9411 of 2017 namely
Gobarbhai Thesia rendered his service before the learned
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Tribunal as an advocate.
29. Such a complaint may be quashed under the inherent
powers under Section 482 of the Code of Criminal Procedure.
The petitioner-advocate cannot be made liable for prosecution,
particularly, in the absence of tangible evidence as he
associated with other accused persons in getting compensation
by producing false or fabricated evidence. There is no prima
facie case for proceeding ion respect of the charges alleged
against any of the applicants. Hence, present applications are
hereby allowed.
30. The impugned complaint being CR No. I-40 of 2017
registered with Dhoraji Police Station, Rajkot-Rural and
subsequent proceedings thereof stands quashed and set aside
qua the applicants in both the applications.
Rule is made absolute to the aforesaid extent in both the
applications.
(B.N. KARIA, J)
K. S. DARJI
