Sarbajaya Pati vs State Of Odisha & Others
2023 Latest Caselaw 12600 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                               CRLMC No.4651 of 2023

            Sarbajaya Pati                           ....            Petitioner
                                         Mr. Alok Kumar Mohanty, Advocate
                                        -versus-
            State of Odisha & Others                 ....      Opposite Parties
                                                   Mr. Debasish Biswal, A.S.C.

                          CORAM:
                          JUSTICE CHITTARANJAN DASH

                                        ORDER

Order No. 13.10.2023

01. 1. Heard learned counsel for the Petitioner and the State.

2. By means of this application the Petitioner seeks indulgence of this Court to quash the impugned order dated 27.09.2023 passed by the learned Addl. Sessions Judge, Balasore in S.T. No.50/193 of 2018.

3. It is submitted by the learned counsel for the Petitioner that the Petitioner being the informant lodged F.I.R. before the Industrial Area P.S., Balasore alleging that while he and his elder brother were sleeping in their house, at about 2 A.M. in the mid-night they found fire set on their house and accordingly they immediately informed the Fire-Brigade and In-charge of the Out-Post of Remuna Chhak. It is further submitted by the learned counsel for the Petitioner that the accused persons in connection with C.T. Case Nos.1538 of 2012, 2024 of 2014, 2482 of 2015 and 305 of 2016 had previous enmity with the informant who had threatened the Petitioner to face the dire consequences.

// 2 //

4. The F.I.R. lodged by the Petitioner was registered as Industrial Area P.S. Case No.116 of 2016. Upon completion of the investigation, charge-sheet was submitted for the offences under Sections 427/436/307, I.P.C., and after commitment the aforesaid case has been registered as S.T. Case No.50/193 of 2018 pending before the Addl. Sessions Judge, Balasore.

5. It is further submitted that in course of the trial, the I.O. who was examined on 16.09.2021, found to have deposed/given incorrect information before the Court. The Petitioner collected the relevant documents through R.T.I. Act as well as the certified copy and procured those documents through the prosecution under a motion made under Section 340, Cr.P.C. read with Section 195, Cr.P.C. to initiate an enquiry against the Investigating Officer. Learned trial court having heard the parties, did not pass any specific order. On the contrary, on the motion of the accused persons, who moved a petition under Section 311, Cr.P.C. to recall P.W.10, i.e. the Investigating Officer, the same was allowed and the case was posted for hearing on 21.06.2023. As far as the motion initiated by the present Petitioner under Section 340, Cr.P.C., the learned court held that the petition itself being frivolous was intended only to protract the litigation. Being aggrieved thereby the Petitioner moves in the present.

6. Section 195 Cr.P.C. deals with distinct categories of offences prescribed under Clauses (a), (b)(i), (b)(ii) and (b)(iii). Section 195(1) mandates a complaint in writing of the court for taking cognizance of the offences enumerated in clause (b) thereof. The offences mentioned in clause (b) relate to giving or fabricating false

// 3 //

evidence or making a false declaration in any judicial proceeding or before a court of justice or before a public servant who is bound or authorized by law to receive such declaration, and also to some other offences which have a direct good co-relation with the proceedings in a court of justice.

7. Section 340 Cr.P.C. provides the procedure for filing complaint; as per the procedure prescribed, when an application is made to the Court, or even otherwise, if a Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) of sub Section (1) of Section 195 Cr.P.C. which appears to have been committed in or in relation to proceedings 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 record a finding to that effect after such preliminary inquiry, if any, as it thinks necessary.

8. In Pritish versus State of Maharashtra and others (2002) 1 SCC 253 the Hon'ble Supreme Court has held that the hub of Section 340 Cr.P.C. is formation of an opinion by the Court, before which proceedings were held, that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed but, even when the court forms such an opinion it is not mandatory that the court should make a complaint. Sub section (1) of Section 195 Cr.P.C. confers power on the court to do so, but, it does not mean that the court should, as a matter of course, make a complaint.

9. In Iqbal Singh Marwah versus Meenakshi Marwah 2005(2) SCC 549 the Constitution Bench of the Hon'ble Supreme Court has held

// 4 //

that "under Section 340, Cr.P.C. the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b) as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint".

10. In Pritish (Supra), Iqbal Singh Marwah (Supra), and also in the State of Goa Vs. Jose Maria Albert Vales @ Robert Vales, (2018) 11 SCC 659, the Hon'ble Supreme Court has held that "the Court at the stage envisaged in Section 340 of the Code would not decide the guilt or innocence of the party against whom the proceedings are to be instituted before the Magistrate and at that stage the Court is to examine as to whether it was expedient in the interests of justice that an inquiry should be made into any offence affecting the administration of justice and that no expression of the guilt or

// 5 //

innocence of the persons should be made while passing the order under Section 340 of the Code".

11. So far as holding of a preliminary enquiry as contemplated by Section 340, Cr.P.C. is concerned in Pritish (supra) it was held that "the court is empowered to hold a preliminary enquiry although it is not peremptory that such an enquiry should be held and even without such a preliminary enquiry the court can form an opinion when it appears to the court that an offence of the nature contemplated by Section 195(1)(b) has been committed in relation to a Court. In Pritish (supra) it was also held that in such preliminary enquiry, if held, an opportunity to the would-be accused before the filing of the complaint is not mandatory. However, the Hon'ble Apex Court in Sharad Pawar versus Jagmohan (2010) 15 SCC 290 observed that it was necessary to conduct a preliminary inquiry under Section 340, Cr.P.C. and to afford an opportunity of hearing to the would-be accused. In this regard we may also refer to the judgment in State of Punjab versus Jasbir Singh (2020) 12 SCC 96, wherein the Hon'ble Supreme Court has referred the matter to the Larger Bench for consideration of the questions as to whether Section 340, Cr.P.C. mandates a preliminary inquiry and an opportunity of hearing to the would-be accused, before a complaint is made under Section 195 of the Code, by a Court".

12. In the Petition filed by the Petitioner before the learned court below, in the instant case, suggests a detail narration as to how the I.O. adduced evidence contrary to the investigation. Such narrations made in various paragraphs of the Petition viz; paragraph 4 to 9 are matters of argument which, of course the Prosecution may urge in

// 6 //

argument. Further, it is submitted by the learned counsel for the petitioner that the court has recalled the I.O. to face further cross examination at the behest of the accused. In such eventuality, the Prosecution is not precluded from confronting the I.O. if the same is beyond the purview of investigation. This situation could have been averted well had the court been alive at the time of recording the evidence of the I.O. The trial court, therefore, is advised to remain alive while recording the evidence and not to remain oblivious of what is being brought in evidence by the I.O. that does not form part of the investigation and found not reflected in the case diary to avoid such an eventuality accepting it as gospel truth which otherwise need to be dealt by the Court later on.

13. As far as the submission of the learned counsel as to his grievance that the learned court below did not pass appropriate order on his Petition in tune with the provision under section 195 Cr.P.C to initiate an enquiry under section 340 Cr.P.C, as discussed above, and held by the Apex Court is absolutely on the domain of the court and an action can be initiated only when it appears to the court that an offence of the nature contemplated by Section 195(1)(b) has been committed in relation to a Court and the Court is of opinion that it is expedient in the interest of justice and not on the dissatisfaction of the party. The court is also not bound to initiate a complaint even if it satisfies the court that there are materials appearing in the record before it to initiate a complaint. In essence, therefore, mere initiation of a motion by the party seeking indulgence of the court concerned creates no obligation on the court in insisting an action under the relevant provisions.

// 7 //

14. In view of the observation as above, this Court is not inclined to interfere with the impugned order passed by the learned Addl. Sessions Judge. The CRLMC being devoid of merit stands dismissed. Office to communicate the order to the court concerned forthwith.

(Chittaranjan Dash) Judge

S.K.Parida

Signature Not Verified Digitally Signed Signed by: SAMIR KUMAR PARIDA Designation: ADR-cum-ADDL. PRINCIPAL SECRETARY Reason: Authentic Copy Location: ORISSA HIGH COURT, CUTTACK Date: 17-Oct-2023 15:19:34