elaborately discussed the law and applied the
said law to the facts to hold that the petitioner
has not stated the correct facts on oath. She has
stated that she was doing household work and
has no source of income while her income is
Rs.40,000/ per month from the business. She has
of course, revealed that she has received sum of
Rs. 4 lakhs from the earlier marriage. With
regard to the income tax returns, she is found to
have given false evidence. With regard to the
fixed deposit and the amount that has been
credited in her FDR, she stated that she has no
knowledge with regard to her accounts in Central
Bank of India and Rajkot Cooperative Bank. The
husband also examined the witness, who was
Inspector in the IncomeTax Department, wherein
she submitted her personal income and her incometax
returns have been brought on the record to
indicate that from the year 201112 she has
income from business at Rs.1,48,251/. The
business profit was worth Rs.1,84,251/. The
Court has given the details from IncomeTax
returns of her income of every assessment year.
Senior Manager of Central Bank of India of Rajkot
also has given the details that total of Rs. 17
lakhs, which are deposited in the name of the
petitioner that towards the fixed deposit
receipt, which she has not disclosed. The Court
on noticing that she was getting sufficient
income from the fixed deposit receipt and yet has
not admitted in the evidence produced by her
stating that she has no source of income, had
directed the initiation of the prosecution under
section 195 read with section 340 of the Code of
Criminal Procedure.
15. The Apex Court in the case of Pritish vs.
State of Maharashtra reported in 2002(1) SCC 253
was considering section 340 of the Code of
Criminal Procedure to hold that the hub of this
provision is formation of an opinion by the
court(before which proceedings were to be 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. In order to
form such opinion the Court is empowered to hold
a preliminary inquiry. It is not peremptory that
such preliminary inquiry should be held. Even
without such preliminary inquiry the Court can
form such an opinion when it appears to the Court
that an offence has been committed in relation to
a proceeding in that Court. It is important to
notice that even when the Court forms such an
opinion, it is not mandatory that the court
should make a complaint. This subsection has
conferred a power in the Court to do so. It does
not mean that the Court should, as a matter of
course, make a complaint. But once the Court
decides to do so, then the Court should make a
finding to the effect that on the fact situation
it is expedient in the interest of justice that
the offence should further be probed into. If the
Court finds it necessary to conduct a preliminary
inquiry to reach such a finding it is always open
to the Court to do so, though absence of any such
preliminary inquiry would not vitiate a finding
reached by the Court regarding its opinion. The
purpose of preliminary inquiry, even if the Court
opts to conduct it, is only to decide whether it
is expedient in the interest of justice to
inquire into the offence which appears to have
been committed.
Laws which are otherwise in favour of the
distressed wife when are sought to be misused by
declaring completely incorrect facts and also by
suppressing the material aspect, the trial Court
at the time of considering the case found that
the impact on the administration of justice would
make it expedient for it to direct the
prosecution.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7666 of 2016
SEJALBEN TEJASBHAI CHOVATIYA.
V
STATE OF GUJARAT..
CORAM: MS JUSTICE SONIA GOKANI
Date : 20/10/2016
Citation: 2016 SCC ONLINE GUJ 6333
1. Leave to amend to join the husband as respondent
No.2 is permitted. To be carried out forthwith.
2. At the outset, it is to be mentioned that in this
petition, challenge is made to the order dated
6.9.2016 passed by the learned Judge, Family
Court below Exh.88 in Criminal Miscellaneous
Application No.346 of 2013, attempts were made by
the Court to see that the parties can reach to
any kind of settlement. However, as the same
could not be worked out, both the sides have been
heard extensively. The petitioner is the wife,
who is married to respondent No.2.
3. The petitioner is married to respondent No.2 on
20.11.2008 and a son is begotten out of the said
wedlock on 21.12.2010. It is the say of the
petitioner that after the birth of the son, the
husband got shifted at Jetpur and started
residing in a rented premise. He had once again
started residing with joint family at Rajkot. The
petitioner urged that she was deserted in August,
2012 and thereafter she made an application under
section 125 of the Criminal Procedure Code by
preferring Criminal Miscellaneous Application
No.346 of 2013 for herself and her son.
4. The trial Court, on an application Exh.88 under
sections 195 and 340 of the Code of Criminal
Procedure preferred by respondent No.2 on
13.5.2016, recorded the evidence on both the
sides and directed the Registrar of Family Court
to file an application before the Pradyuman Nagar
police station under sections 191,192 and 193 of
the Indian Penal Code.
5. After staying the said order for a period of 30
days, the dissatisfied wife is before this Court
with various averments and following reliefs:
“(10) The petitioner on the aforesaid
premises, prays before Your Lordships that:
(A) Your Lordships may kindly be pleased to
quash and set aside the Order impugned
Dt.6/09/2016 passed by the learned Judge
Family Court, Rajkot below Ex88 in
Cri.M.A.No.346 of 2013.
(B) Pending admission, hearing and final
disposal of present application, Your
Lordships may kindly be pleased to stay the
implementation, execution and compliance of
the Order Dt. 6/09/2016 passed by the learned
Judge Family Court, Rajkot below Exh88 in
Cri.M.A.No.346 of 2013.
(C) Your Lordships may kindly be pleased to
pass such other and further relief as may be
deemed just and proper in favour of the
petitioners, in the interest of justice.”
6. Learned advocate Chandrani appearing for the
petitioner has urged that even if there is any
perjury, the petitioner need not be prosecuted.
He has urged that Court below was in error in
appreciating the evidence, specifically the
income tax return to conclude that the petitioner
had suppressed her true income. It is not the
case of the petitioner that she was serving and
was drawing the salary. Her income tax returns
have been managed by her father and it is not
unusual for family members to have the income tax
returns from the business of family. It is
further his say that the lady is a graduate.
However, she would not know about any return
being filed by the father nor would she be aware
of the income of the family members and of hers
in absence of any work that she was performing.
It is not the case of the other side that she was
serving and getting the salary from the account
of Kirit Traders owned by her father.
7. He further has urged that the order passed by the
learned Judge is contrary to the provision of
sections 195 and 340 of the Indian Penal Code
and, therefore, also the same deserves to be
quashed.
8. Learned advocate appearing for respondent No.2
has urged that it is very rare that the Court
would go out of the way to hold that perjury has
been committed and, in the instant case, it is
quite obvious from the record that she had not
revealed the fact that she is given permanent
alimony of the sum of Rs.4,00,000/ so also all
her income is shown under the IncomeTax Act.
9. Learned Additional Public Prosecutor for
respondent No.1 has urged this Court not to
interfere. According to him, the Court has in
detail given the reasonings for initiating the
proceedings against the present petitioner.
10. Admittedly, this order has arisen on account
of the affidavit given by the petitioner, wherein
she declared herself a housewife having no
source of income. However, she has admitted in
her crossexamination that she has obtained Rs.4
lakhs from her previous husband at the time of
taking divorce from him.
11. An application came to be moved before the
Family Court, Ahmedabad by the husband that
though she is earning a salary of Rs.40,000/
from business, she has mentioned in her affidavit
that she is a house wife and has no source of
income. The earlier application came to be
disposed of on the ground that the evidence was
not recorded.
12. Later on, when similar application came to
be moved, the Court had questioned as to whether
the applicant had produced false evidence on oath
and vide order dated 23.5.2016 directed that the
same would be decided at the time of deciding the
main application.
13. Another application came to be moved being
Criminal Revision Application No.429 of 2016
before this Court, which was withdrawn on
10.8.2016. Thereafter, an application was moved
before the Family Court, Rajkot to take action
against the petitioner under sections 195 read
with section 340 of the Code of Criminal
Procedure committing an offence under sections
191, 192 and 193 of the Indian Penal Code. The
Court below held in affirmation, which has
aggrieved the petitioner for ventilating the
grievance in this petition memo.
14. This Court notices that the Court has
elaborately discussed the law and applied the
said law to the facts to hold that the petitioner
has not stated the correct facts on oath. She has
stated that she was doing household work and
has no source of income while her income is
Rs.40,000/ per month from the business. She has
of course, revealed that she has received sum of
Rs. 4 lakhs from the earlier marriage. With
regard to the income tax returns, she is found to
have given false evidence. With regard to the
fixed deposit and the amount that has been
credited in her FDR, she stated that she has no
knowledge with regard to her accounts in Central
Bank of India and Rajkot Cooperative Bank. The
husband also examined the witness, who was
Inspector in the IncomeTax Department, wherein
she submitted her personal income and her incometax
returns have been brought on the record to
indicate that from the year 201112 she has
income from business at Rs.1,48,251/. The
business profit was worth Rs.1,84,251/. The
Court has given the details from IncomeTax
returns of her income of every assessment year.
Senior Manager of Central Bank of India of Rajkot
also has given the details that total of Rs. 17
lakhs, which are deposited in the name of the
petitioner that towards the fixed deposit
receipt, which she has not disclosed. The Court
on noticing that she was getting sufficient
income from the fixed deposit receipt and yet has
not admitted in the evidence produced by her
stating that she has no source of income, had
directed the initiation of the prosecution under
section 195 read with section 340 of the Code of
Criminal Procedure.
15. The Apex Court in the case of Pritish vs.
State of Maharashtra reported in 2002(1) SCC 253
was considering section 340 of the Code of
Criminal Procedure to hold that the hub of this
provision is formation of an opinion by the
court(before which proceedings were to be 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. In order to
form such opinion the Court is empowered to hold
a preliminary inquiry. It is not peremptory that
such preliminary inquiry should be held. Even
without such preliminary inquiry the Court can
form such an opinion when it appears to the Court
that an offence has been committed in relation to
a proceeding in that Court. It is important to
notice that even when the Court forms such an
opinion, it is not mandatory that the court
should make a complaint. This subsection has
conferred a power in the Court to do so. It does
not mean that the Court should, as a matter of
course, make a complaint. But once the Court
decides to do so, then the Court should make a
finding to the effect that on the fact situation
it is expedient in the interest of justice that
the offence should further be probed into. If the
Court finds it necessary to conduct a preliminary
inquiry to reach such a finding it is always open
to the Court to do so, though absence of any such
preliminary inquiry would not vitiate a finding
reached by the Court regarding its opinion. The
purpose of preliminary inquiry, even if the Court
opts to conduct it, is only to decide whether it
is expedient in the interest of justice to
inquire into the offence which appears to have
been committed.
16. Likewise, in the decision rendered by the
Apex Court in the case of Iqbal Singh Marwah and
another vs. Meenakshi Marwah and another
reported in (2005) 4 SCC 370, it has been
emphasized that even when there is a case of
forgery noticed by the Court and the Court forms
the opinion that unless it is expedient in the
interest of justice to prosecute a person, the
Court is not to do it in a referred manner. The
expediency will normally be judged by the Court
by weighing not the magnitude of injury suffered
by the person affected by the offence, but having
regard to the effect or impact of that offence
upon administration of justice. The Court also
held that bar under section 195(1)(b)(ii) that no
Court shall take cognizance of any such offence
except on the complaint in writing of such
matter. It also held that the bar would be
attracted only when the offences enumerated in
section 195(1)(b)(ii) have been committed with
respect to a document, after it has been produced
or given in evidence in a proceeding in any
Court. If said offence is committed or given in
evidence in Court, no complaint by Court would be
necessary and a private complaint would be
maintainable.
17. The only aspect that needs to be considered
by this Court is as to whether it is expedient in
the interest of justice that such prosecution
would be necessary. This expediency, as held by
Apex Court, is not weighing the magnitude of the
injury suffered by the person affected by it but
having regard to the effect or impact that the
offence would have on administration of justice
and considering the factual scenario, the Court
has formed a preliminary opinion to hold that it
is a case of perjury.
18. As can be noticed from the chronology of
events and the evidence that has been adduced
before the Court concerned, it is certain that
the injury which could have been sustained by the
other side has not resulted on account of this
alleged falsehood because respondent No.2 could
find out at an appropriate time the details which
he has furnished before the Court. So far as its
impact on the administration of justice is
concerned, this Court has no reason to interfere
as often it is found that the litigants coming
before the Court chose to speak blatant lies and
do so with complete impudence.
19. Laws which are otherwise in favour of the
distressed wife when are sought to be misused by
declaring completely incorrect facts and also by
suppressing the material aspect, the trial Court
at the time of considering the case found that
the impact on the administration of justice would
make it expedient for it to direct the
prosecution.
20. This Court finds no justification in
interfering with the order. Even otherwise, the
petitioner is going to get all the opportunities
to defend her case effectively. It is also,
therefore, necessary for this Court not to
elaborate further on the merits of the matter.
21. Petition stands disposed of with above
directions.
(MS SONIA GOKANI, J.)
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