Ram Dhan Vs. State of
U.P. & ANR.
Petition (CRL.) No.335 of 2012]
J U D G M E N T
Dr. B.S. CHAUHAN, J.
petition has been filed against the judgment and order dated 14.11.2011 passed
by the High Court of Judicature at Allahabad in Criminal Revision No.4259 of
2011 by which the High Court has rejected the said revision petition against
the impugned order dated 3.9.2011 passed by the Chief Judicial Magistrate, Bagpat,
rejecting the application under Section 239 of the Code of Criminal Procedure, 1973
(hereinafter called `Cr.P.C.).
and circumstances giving rise to this petition are that present petitioner Ram
Dhan lodged an FIR dated 4.6.1995 alleging that his son Dinesh had disappeared
and, subsequently, filed a complaint against Balraj alias Billu and others
(respondents) under Section 364 of the Indian Penal Code, 1860 (hereinafter called
IPC). The investigating agency concluded the investigation and filed a chargesheet
on the basis of which trial commenced against the respondents Balraj etc. and
the trial Court vide judgment and order dated 11.5.2005 convicted the
respondent No.2 Balraj and others for the offences punishable under Section 364
read with Section 149 IPC and awarded sentence of 9 years rigorous imprisonment
and imposed a fine of Rs.5,000/-.
aggrieved, Balraj, respondent No.2 and others preferred an appeal before the
High Court of Allahabad which was admitted and the respondent No.2 and other
convicts were granted bail by the High Court. The petitioners son for whose
kidnapping Balraj, respondent No.2 and others had been convicted, came back
home and disclosed to the public as well as to the police that he had not been kidnapped
rather had voluntarily gone to Punjab, where he worked for several years. Balraj,
respondent No.2 realised that he had been wrongly enroped and convicted in the
offence by the petitioner. Thus, he filed an FIR on 29.8.2009 under Sections 177,
181, 182, 195 and 420 IPC. After investigating the case, charge sheet was filed
against the petitioner and others under Sections 177, 181, 182 and 195 IPC on
petitioner filed an application under Section 239 Cr.P.C. before the Chief
Judicial Magistrate contending that the FIR at the behest of the respondent
No.2, Balraj was not maintainable in view of the provisions of Section 195 read
with Section 340 Cr.P.C. The Chief Judicial Magistrate rejected the said application
vide order dated 3.9.2011. The petitioner challenged the said order dated 3.9.2011
by filing a criminal revision before the High Court which has been dismissed
vide impugned order dated 14.11.2011. Hence, this petition.
Ashok Kumar Sharma, learned counsel appearing for the petitioner, has vehemently
contended that the prosecution of the petitioner is illegal and liable to be quashed
in view of the provisions of Sections 195 and 340 Cr.P.C, for the reason that as
the offence has been committed in the court, such a drastic action can be taken
against the petitioner only on a complaint lodged by the court and not by the
find no merit in the petition. After investigation, charge sheet has been filed
against the petitioner and others under Sections 177, 181, 182 and 195 IPC. The
petitioner has suppressed the material fact and has not disclosed anywhere in
this petition that he had approached the High Court under Section 482 Cr.P.C.
for quashing of the charge sheet, which stood rejected vide order dated
3.2.2010 and the said order attained finality as has not been challenged any further.
Thus, he is guilty of suppressing the material fact which makes the petition
liable to be dismissed only on this sole ground. We are of the view that it was
necessary for the petitioner to disclose such a relevant fact. The learned
Chief Judicial Magistrate while deciding the application under Section 239
Cr.P.C. has made reference to the said order of the High Court dated 3.2.2010.
We had been deprived of the opportunity to scrutinise the chargesheet as well
as the order of the High Court dated 3.2.2010 and to ascertain as to whether
the grievance of the petitioner in respect of the application of the provisions
of Section 195 read with Section 340 Cr.P.C. had been raised in that petition
and as to whether even if such plea has not been taken whether the petitioner
can be permitted to raise such plea subsequently.
such a fact-situation, the courts below may be right to the extent that
question of discharge under Section 239 Cr.P.C. was totally unwarranted in view
of the order passed by the High Court on 3.2.2010. For the reasons best known
to the petitioner, neither the copy of the chargesheet nor of the order dated
3.2.2010 passed by the High Court have been placed on record.
that as it may, the chargesheet has been filed under Sections 177, 181, 182,
195 and 420 IPC. Section 177 IPC deals with an offence furnishing false
information. Section 181 IPC deals with false statement on oath. Section 182
IPC deals with false information with intent to cause public servant to use his
lawful power to the injury of another person. Section 195 IPC deals with giving
or fabricating false evidence with intent to procure conviction of offence punishable
with imprisonment for life or imprisonment.
least the provisions of Sections 177 and 182 deal with the cases totally
outside the court. Therefore, the question of attracting the provisions of
Sections 195 and 340 Cr.P.C. are not attracted. Section 195 IPC makes
fabrication of false evidence punishable. It is not necessary that fabrication of
false evidence takes place only inside the court as it can also be fabricated
outside the court though has been used in the court. Therefore, it may also not
attract the provisions of Section 195 Cr.P.C. (See: Sachida Nand Singh & Anr.
v. State of Bihar & Anr. , (1998) 2 SCC 493).
Ashok Kumar Sharma, learned counsel appearing for the petitioner, has placed a
very heavy reliance on the judgment of this Court in Abdul Rehman & Ors. v.
K.M. Anees-ul-Haq, JT (2011) 13 SC 271. However, it is evident from the
judgment relied upon that the judgment in Sachida Nand Singh (Supra), which is
of a larger Bench, has not been brought to the notice of the court. (See also:
Balasubramaniam v. State & Anr., (2002) 7 SCC 649). The petitioner is guilty
of suppressing the material fact. Admittedly, filing of successive petition
before the court amounts to abuse of the process of the court. Thus, we are not
inclined to examine the issue any further. Considering the composite nature of
the offences, we do not see any cogent reason to interfere with the impugned
order. The petition lacks merit and is, accordingly, dismissed.
(DR. B.S. CHAUHAN)
(JAGDISH SINGH KHEHAR)