Ajit Rai And Others vs State Of Haryana
- Court
- Punjab and Haryana High Court
CRA-S-422-SB-2018 (O&M) -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CRA-S-422-SB-2018 (O&M)
Ajit Rai and others ...Appellants
Versus
State of Haryana ...Respondent
Sr. No. Particulars Details
1 The date when the judgment is reserved 25.08.2026
2 The date when the judgment is pronounced 01.09.2026
3 The date when the judgment is uploaded on the website 02.09.2026
Whether only operative part of the judgment is pronounced or full
4 Full
judgment is pronounced
The delay, if any, of the pronouncement of full judgment, and Not
5
reasons thereof applicable
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present:- Mr. R. S. Cheema, Senior Advocate with
Ms. Tanu Bedi, Advocate,
Mr. Satish Sharma, Advocate,
Mr. Prince Bharol, Advocate and
Ms. Vibhuti Manchanda, Advocate
for appellants No. 1 to 7.
Appellant No. 8 has died.
Mr. Ashok Kumar Khubbar, Addl. A.G., Haryana.
MANISHA BATRA, J.
1. The present appeal has been filed by the appellants against the
order dated 12.09.2017, passed by the Court of learned Sessions Judge,
Kaithal in connection with case arising out of FIR No.31 dated 28.03.2015,
registered under Section 307 IPC and Section 25 of the Arms Act, 1959 at
Police Station Dhand, District Kaithal, whereby direction was given to treat
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the said order as a complaint filed under Section 340 Cr.P.C. with a further
direction to proceed against the appellants for commission of offences
punishable under Sections 166, 167, 195, 196, 211, 220, 346, 465 and 471
IPC. The appellants are police officials who were posted at different places in
the State of Haryana.
2. The facts giving rise to the present appeal are that an FIR bearing
No.31 dated 28.03.2015 was registered at Police Station Dhand, District
Kaithal, under Section 307 IPC and Section 25 of the Arms Act. The FIR was
registered on the statement of Dei Ram in relation to a firing incident which
had taken place at a marriage function in village Ahun on 27.03.2015. During
investigation, the police collected material from the place of occurrence and
recorded statements of the witnesses. The investigation was thereafter
transferred to CIA Staff-I, Kaithal on 29.03.2015. According to the police
version, on 31.03.2015 accused Shivam alias Saurabh and Gaurav alias Sonu
were produced before the police by Tej Pal, former Sarpanch of the village.
They were arrested and brought to Police Station Dhand. DDR No.35 dated
31.03.2015 at 7:30 p.m. was recorded and thereafter both were taken to CIA
Staff, Kaithal for further interrogation.
3. In the meantime, a habeas corpus petition, being Criminal Writ
Petition No.511 of 2015, was filed before this Court on 31.03.2015 seeking
release of Gaurav. A Warrant Officer was appointed by this Court to visit CIA
Staff, Kaithal and locate the alleged detenue. The Warrant Officer reached
CIA Staff, Kaithal at about 9:30 p.m. on 31.03.2015. He found the two
accused inside the CIA premises. The report records that there was no entry in
the Roznamcha regarding their presence there. The Warrant Officer
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consequently got the two persons released from the CIA Staff. The said writ
petition was ultimately disposed of by this Court as having become
infructuous. The criminal case, however, proceeded before the learned
Sessions Judge, Kaithal. During the trial, the prosecution witnesses did not
support the prosecution case in material particulars. The complainant and the
injured witnesses did not identify the accused as the persons who had caused
the injuries. The learned Sessions Judge, therefore, acquitted the accused vide
judgment dated 22.04.2016. However, while acquitting the accused, the
learned Sessions Judge noticed serious discrepancies regarding their arrest and
custody. It was noticed that the arrest memos were available as part of the
police report but no corresponding entry regarding their arrest was found in
the Daily Diary Register of CIA Staff, Kaithal. The learned Judge also noticed
that the accused had allegedly been arrested on 31.03.2015, taken to CIA Staff
on the same day and yet were found there by the Warrant Officer without the
relevant entry in the Roznamcha. The learned Sessions Judge accordingly
directed that a preliminary inquiry under Section 340 Cr.P.C. be conducted to
examine whether the FIR produced in evidence was ante-dated, whether the
accused had actually been formally arrested on 31.03.2015 and whether, after
their formal arrest, they had been lawfully taken from Police Station Dhand to
CIA Staff, Kaithal. The police file, relevant Daily Diary Registers, arrest
memos, statements of police witnesses and the report of the Warrant Officer
were directed to be summoned for the purpose of the inquiry.
4. The proceedings under Section 340 Cr.P.C. thereafter continued
before the learned Sessions Judge. The record was summoned and the matter
was repeatedly adjourned for arguments. The report of the Warrant Officer and
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the relevant police records were considered. The learned Public Prosecutor
was also heard. Upon consideration of the material, the learned Sessions
Judge, vide order dated 12.09.2017, recorded that the Daily Diary entry at
Police Station Dhand showed the alleged arrest of the accused on 31.03.2015,
whereas there was no corresponding entry regarding their presence at CIA
Staff, Kaithal. The learned Judge noticed the evidence of the police witnesses,
the report of the Warrant Officer and the police records and observed that the
material disclosed a prima facie case of preparation and production of false or
forged documents before the Court. The learned Sessions Judge further
noticed that the case had already been transferred to CIA Staff on 29.03.2015,
but DDR No.35 dated 31.03.2015 was subsequently recorded at Police Station
Dhand regarding the arrest of the accused and their proposed movement to
CIA Staff. The learned Judge considered these circumstances suspicious and
recorded that there seemed to be a case of fabrication of evidence intending
thereby to cause the accused to be convicted under Sections 307 and 324 of
IPC read with Section 25 of the Arms Act and that there appeared to be a
prima facie case for offences under Sections 166, 167, 195, 196, 211, 220,
346, 465 and 471 IPC and also Section 120-B IPC. The order dated
12.09.2017 was directed to be treated as a complaint and was forwarded to the
learned Chief Judicial Magistrate, Kaithal.
5. Aggrieved against the aforesaid action, the appellants initially
approached this Court by filing a petition bearing CRM-M-43146-2018 . The
said petition was dismissed as withdrawn with liberty to the appellants to avail
the remedy under Section 341 Cr.P.C. The present appeal has thereafter been
filed.
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6. It is argued by learned Senior Counsel for the appellants the
impugned order dated 12.09.2017, which itself is ordered to be treated as a
complaint, is not at all sustainable in the eyes of law and is liable to be set
aside as while passing this order, the learned Sessions Judge proceeded
against the appellants under Section 340 Cr.P.C. without recording any
necessary satisfaction that it was expedient in the interest of justice to
prosecute them. Learned counsel referred to the judgment of acquittal dated
22.04.2016 and argued that the prosecution witnesses had themselves not
supported the prosecution case. The complainant and the injured witnesses
had not identified the accused and had stated before the Court that the accused
had not fired at them. It is also argued that the learned Sessions Judge, instead
of examining why the witnesses had resiled from their earlier statements,
proceeded on the assumption that the police had fabricated the evidence. The
Roznamcha of CIA Staff could not lead to a conclusion that the FIR was ante-
dated or that the arrest memos were fabricated. There was a specific DDR
No.35 dated 31.03.2015 recorded at Police Station Dhand showing the arrest
of the accused. The police had consistently maintained that the accused were
arrested according to law and were thereafter taken to CIA Staff for
investigation.
7. It is further argued that this Court, while disposing of the
aforementioned habeas corpus petition, had not taken any action against the
appellants and had merely disposed of the petition as having become
infructuous. The report of the Warrant Officer, therefore, could not by itself
constitute sufficient material for initiating proceedings against the appellants
under Section 340 Cr.P.C. It is lastly argued that the preliminary inquiry
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ordered on 22.04.2016 was confined to three questions, i.e., whether the FIR
was ante-dated, whether the accused were formally arrested on 31.03.2015
and whether they were lawfully taken from Police Station Dhand to CIA Staff.
However, the learned Sessions Judge, while passing the order dated
12.09.2017, did not properly answer these three questions and instead relied
mainly upon the report of the Warrant Officer. With these broad submissions,
it is urged that the appeal deserves to be accepted and the impugned order
dated 12.09.2017 along with proceeding initiated under Section 340 Cr.P.C.
including all the subsequent proceedings are liable to be quashed. To fortify
his arguments, learned Senior Counsel has relied upon M.S. Sherief v. State of
Madras, AIR 1954 SC 397; K. Karunakaran v. T.V. Eachara Warrier, AIR
1978 SC 290; Pritish v. State of Maharashtra & Ors., (2002) 1 SCC 253;
Chajoo Ram v. Radhey Shyam, AIR 1971 SC 1367; Dr. S.P. Kohli v. High
Court Punjab and Haryana, AIR 1978 SC 1753; Hargobind & Ors. v. State
of Haryana, AIR 1979 SC 1760 and Iqbal Singh Marwah & Anr. v.
Meenakshi Marwah & Anr., (2005) 4 SCC 370 .
8. On the other hand, learned State counsel, while relying upon the
status report, has submitted that the circumstances emanating from the record
did not make out any case of fabrication of evidence on the part of the
appellants since the accused were acquitted on account of material witnesses
having been turned hostile.
9. Having heard the arguments advanced by learned counsel for the
parties at length and on going through the material placed on record, this
Court is of the considered opinion that the first and foremost question, which
is required to be considered, is as to whether on the material available before
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the learned Sessions Judge, the requirement for invoking the provisions of
Section 340 Cr.P.C. were satisfied and secondly; as to whether the order dated
12.09.2017, passed by the learned Sessions Judge, could itself be ordered to
be treated as complaint and thirdly; if the same itself could be treated as
complaint, as to whether such complaint could be legally made against the
appellants. Before adverting to the facts of the case, it would be appropriate to
consider the provisions of Sections 195 and 340 of Cr.P.C., which are relevant
for the purpose and are reproduced below:
“ 195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence .-(1) No Court shall take
cognizance—
(a) (i) of any offence punishable under sections 172 to 188 (both
inclusive) of the Indian Penal Code, (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on
the complaint in writing of the public servant concerned or of some
other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections
of the Indian Penal Code (45 of 1860), namely, sections 193 to 196
(both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when
such offence is alleged to have been committed in, or in relation to,
any proceeding in any Court, or
(ii) of any offence described in section 463, or punishable under
section 471, section 475 or section 476, of the said Code, when such
offence is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or
the abetment of, any offence specified in sub-clause (i) or sub-clause
(ii),
[except on the complaint in writing of that Court or by such officer
of the Court as that Court may authorize in writing in this behalf, or
of some other Court to which that Court is subordinate.]
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340. Procedure in cases mentioned in section 195 .—(1) When,
upon an application made to it in this behalf or otherwise, any Court
is of opinion that it is expedient in the interests of Justice that an
inquiry should be made into any offence referred to in clause (b) of
sub-section (1) of section 195, which appears to have been
committed in or in relation to a proceeding 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, after such preliminary
inquiry, if any, as it thinks necessary,—
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before
such Magistrate, or if the alleged offence is non-bailable and the
Court thinks it necessary so to do, send the accused in custody to
such Magistrate; and
(e) bind over any person to appear and give evidence before such
Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of
an offence may, in any case where that Court has neither made a
complaint under sub-section (1) in respect of that offence nor
rejected an application for the making of such complaint, be
exercised by the Court to which such former Court is subordinate
within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,—
(a) where the Court making the complaint is a High Court, by such
officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court or by such
officer of the Court as the Court may authorise in writing in this
behalf.
(4) In this section, "Court" has the same meaning as in section 195.
10. Section 195(1) Cr.P.C. creates a restriction upon the Court taking
cognizance of certain specified offences except upon a complaint in writing of
the concerned Court or of a Court to which that Court is subordinate. Section
340 Cr.P.C. provides the procedure by which such a complaint may be made
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by the Court. Thus, Section 340 is not an independent provision enabling a
Court to direct prosecution for every offence which, in its opinion, may have
been committed in connection with a judicial proceeding. The offence must
first fall within the category referred to in Section 195(1)(b) Cr.P.C. and the
Court must further form the opinion that it is expedient in the interests of
justice to make a complaint .
11. The Constitution Bench of the Hon'ble Supreme Court in Iqbal
Singh Marwah’s case (supra) , while examining the scope of Sections 195 and
340 Cr.P.C., has explained that Section 195 is an exception to the general
power of a Magistrate to take cognizance of an offence and that the procedure
for making a complaint by the Court is contained in Section 340 Cr.P.C. The
Constitution Bench has further held that the Court is not bound to make a
complaint merely because an offence referred to in Section 195(1)(b) appears
to have been committed. The provision is conditioned by the requirement that
the Court should be of the opinion that it is expedient in the interests of justice
to do so. Such expediency has to be judged not merely by the injury caused to
an individual but by considering the effect or impact of the alleged offence
upon the administration of justice. Similarly, in Pritish’s case (supra) , the
Hon’ble Supreme Court has held that the power under Section 340 Cr.P.C. is
not to be exercised merely because the Court notices that an offence appears
to have been committed. The Court has to form an opinion that it is expedient
in the interest of justice to make a complaint in respect of such offence. The
preliminary inquiry, where considered necessary, is only intended to assist the
Court in arriving at such opinion and is not meant to determine the guilt of the
person against whom proceedings are proposed. Thus, even where some
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irregularity or prima facie offence is noticed, the Court must independently
consider whether setting the criminal law in motion would serve the interests
of justice.
12. Reference can also be made to Chajoo Ram’s case (supra) ,
wherein the Hon'ble Supreme Court has held that prosecution for perjury
should be initiated only where the alleged falsehood is deliberate and
conscious, there is a prima facie case of deliberate falsehood on a matter of
substance and there is a reasonable foundation for the charge. It was cautioned
that prosecution should not be launched merely on inconclusive or doubtful
material or for an inaccuracy which may be innocent or immaterial. Reliance
can also be placed upon Dr. S.P. Kohli’s case (supra) , wherein the Hon’ble
Supreme Court emphasised that prosecution for perjury should not be
launched mechanically and that there should be a reasonable foundation for
the proposed charge. Similar observations were made by Hon’ble Supreme
Court in K. Karunakaran’s case (supra).
13. Now coming to the facts of the present case, the learned Sessions
Judge, while acquitting the accused in the main criminal case vide judgment
dated 22.04.2016, primarily proceeded on the ground that the material
prosecution witnesses had not supported the prosecution case. The
complainant and the injured witnesses did not identify the accused as the
persons who had fired upon them. The prosecution was unable to obtain any
material from the witnesses during their cross-examination which could
establish the involvement of the accused. Thus, the acquittal was not founded
upon a finding that the FIR, arrest memos or other police documents had been
fabricated. This aspect is important. The learned Sessions Judge did not record
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a finding in the judgment of acquittal that the prosecution case had failed
because the appellants had fabricated the arrest or custody record. The
acquittal was on account of failure of the prosecution evidence to establish the
guilt of the accused.
14. It is, therefore, necessary to examine the basis on which
proceedings under Section 340 Cr.P.C. were initiated. The order dated
22.04.2016, passed by the learned Sessions Judge, noticed the report of the
Warrant Officer and certain discrepancies concerning the arrest and custody of
the accused. The learned Sessions Judge directed that an inquiry be made into
three following questions:
(i) whether the FIR produced in evidence was ante-dated;
(ii) whether the accused were formally arrested on
31.03.2015;
(iii) whether, after their formal arrest, they were taken from
Police Station Dhand to CIA Staff, Kaithal in accordance
with law.
The learned Sessions Judge observed at that stage that it was expedient
in the interest of justice that an inquiry be made into an offence which
appeared to have been committed. The fact that the learned Sessions Judge
used the expression “expedient in the interest of justice” in the order dated
22.04.2016, however, cannot conclude the matter. The subsequent proceedings
were required to result in a considered opinion, on the material collected
during the inquiry, that the statutory requirements for making a complaint
under Section 340 Cr.P.C. were satisfied.
15. The material relied upon by the learned Sessions Judge while
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passing the order dated 12.09.2017 also, essentially consisted of the report of
the Warrant Officer, the absence of a corresponding entry regarding the
arrest/presence of the accused in the CIA Roznamcha and the statements of
the concerned police officials. The learned Judge noticed that according to the
police version the accused had been formally arrested at Police Station Dhand
on 31.03.2015 and were thereafter taken to CIA Staff, whereas the Warrant
Officer, on reaching CIA Staff at about 9:30 p.m. on the same day, found the
two accused there and did not find a corresponding entry in the CIA record.
These circumstances may certainly raise a doubt regarding the manner in
which the arrest and subsequent custody of the accused were recorded. They
may also justify an administrative or departmental examination of the conduct
of the concerned police officials. However, the question before this Court is
whether such circumstances, by themselves, satisfy the requirements of
Section 340 Cr.P.C.? In the considered view of this Court, they do not.
16. The learned Sessions Judge has not identified with sufficient
clarity any particular statement made on oath before the Court which was
deliberately false, nor has the impugned order identified any particular
document which was fabricated in the course of or in relation to the judicial
proceeding and thereafter knowingly used for misleading the Court. The order
proceeds substantially on the discrepancy in the police record and draws an
inference that the documents might have been manipulated to show the arrest
of the accused. There is a distinction between a circumstance which creates
suspicion regarding the correctness of a police record and the establishment of
a prima facie case of deliberate fabrication of evidence for the purpose of
misleading a Court. The former may justify further inquiry into the conduct of
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the officials and the latter is required before the extraordinary procedure
contemplated by Sections 195 and 340 Cr.P.C. is set in motion.
17. The principle laid down in Chajoo Ram’s case (supra) , wherein
the Hon’ble Supreme Court has cautioned that the power to prosecute for
perjury should be exercised with care and only where the alleged falsehood is
deliberate and conscious and there is a reasonable foundation for the charge, is
relevant in this regard. It was also observed in this case that the purpose of
Section 340 is not to convert every discrepancy appearing in the evidence or
record into a criminal prosecution.
18. There is yet another important aspect. While passing the
impugned order, the learned Sessions Judge observed that it appeared to be a
case of fabrication of evidence since no entry regarding arrest of the accused
was found to be made in the daily diary register of CIA, Kaithal, which
suggested that the FIR was ante-dated and the documents produced with
challan report were manipulated. On this premise, the learned Sessions Judge
further observed that a prima facie case for commission of offences
punishable under Sections 166, 167, 195, 196, 211, 220, 346, 465 and 471 IPC
was made out. It is relevant to mention at this juncture that Section
195(1)(b)(i) Cr.P.C. covers only offences punishable under Sections 193 to
196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of IPC,
whereas sub-section (b)(ii) of this Section deals with offence described in
Section 463 IPC or punishable under section 471, Section 475 or section 476
of IPC, subject to the conditions mentioned therein. As such, the offences
punishable under Sections 166, 167, 220 and 346 are obviously not the
offences specified in Section 195(1)(b) of Cr.P.C. and are not covered under
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the statutory scheme of either Section 195 or Section 340 of Cr.P.C. Likewise,
the mere reference to Section 465 IPC does not by itself satisfy Section
195(1)(b)(ii), which refers to an offence described in Section 463 IPC or an
offence punishable under Sections 471, 475 or 476 IPC. The learned Sessions
Judge has not separately examined this statutory requirement. So far as the
provisions of Section 195 and 196 of IPC, are concerned, Section 195
provides punishment for giving or fabricating false evidence, whereas, as per
Section 196 IPC, whoever corruptly uses or admits to use as true or genuine
evidence, any evidence which he knows to be false or fabricated, is liable for
punishment. So far as Section 211 IPC is concerned, it provides punishment
for a person who with intent to cause injury to any person, institutes or causes
to be instituted any criminal proceeding against that person, or falsely charges
any person with having committed an offence, knowing that there is no just or
lawful ground for such proceeding. Offence of forgery punishable under
Section 465 IPC pertains to making any false document or false electronic
record or part of a document of electronic record with intent to cause damage
or injury. However, while passing the impugned order, the learned Sessions
Judge did not take into consideration the ingredients of aforementioned
offences. The observations made by him in the impugned order do not make
out any prima facie case for commission of aforementioned offence against
the appellants.
19. The Constitution Bench of Hon’ble Supreme Court in Iqbal
Singh Marwah’s case (supra) has explained the scope of Section 195(1)(b)(ii)
and held that the provision is attracted where the offence concerning the
document is committed after the document has been produced or given in
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evidence in Court, that is, while it is in the custody of the Court. The said
pronouncement also makes it clear that the underlying object is to protect the
purity of the administration of justice and that the Court is not required to
make a complaint in every case merely because an offence appears to have
been committed. In the present case, the allegation regarding the FIR, arrest
memos and police records is essentially that the documents were prepared or
manipulated during the investigation and were thereafter placed before the
trial Court along with the police report. There is no finding that the alleged
fabrication was committed after those documents had been produced in Court.
This distinction assumes significance in view of the law laid down in Iqbal
Singh Marwah’s case (supra) .
20. More importantly, even assuming that the allegations regarding
manipulation of the police record are taken at their highest and the same are
presumed to be correct for the purposes of the present appeal, the learned
Sessions Judge was still required to consider the further statutory requirement
i.e. whether it was expedient in the interests of justice to prosecute the
appellants? This requirement cannot be treated as a mere formality. In Iqbal
Singh Marwah’s case (supra) , the Constitution Bench specifically held that
the Court has to consider the effect or impact of the alleged offence upon the
administration of justice. The fact that an act may cause injury to an individual
does not by itself make prosecution under Section 340 expedient.
21. In the present case, the connection between the alleged
irregularities in the arrest/custody record and the administration of justice has
not been demonstrated in the manner required by law. The accused in the main
criminal case were acquitted because the material prosecution witnesses did
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not support the prosecution case. There is no finding that the alleged
manipulated arrest record or the alleged ante-dating of the FIR was relied
upon by the Court for recording the acquittal or that the ultimate adjudication
of the criminal case was affected by the alleged acts of the appellants. Moreso,
there could not be any question of ante-dating of the FIR which already stood
registered as on 29.03.2015 i.e. two days before the accused were detained
illegally as alleged and if at all, there was ante-dating of any material, the
same was DDR No.35 entered at Police Station Dhand on 31.03.2015, which
was not considered at all for the purpose. However, this does not mean that
the allegations regarding the conduct of the police officials are to be treated as
correct or that such conduct, if ultimately established, would be insignificant.
The question is different. Section 340 Cr.P.C. is not intended to punish every
wrong or irregular act noticed by a Court. The Court has to be satisfied that
the particular offence is one covered by Section 195(1)(b) and that, having
regard to its effect upon the administration of justice, it is expedient to set the
criminal law in motion. The learned Sessions Judge, therefore, was required to
consider whether the alleged irregularity in the arrest and custody record, even
if accepted, had such a direct and substantial bearing upon the administration
of justice as to make prosecution of the appellants expedient in the interests of
justice. The impugned order does not undertake this exercise. The observation
in the order dated 22.04.2016 that it was expedient in the interest of justice to
conduct an inquiry cannot substitute this consideration. At that stage, the
Court was directing a preliminary inquiry into the circumstances. After the
inquiry was completed and the complaint was ultimately directed to be made,
the Court was required to examine the material collected during that inquiry
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and arrive at the requisite satisfaction in accordance with Section 340 Cr.P.C.
which has not been done.
22. It is also significant that a preliminary inquiry under Section 340
is not itself a finding of guilt. As held in Pritish’ case (supra) , the purpose of
such inquiry is only to enable the Court to decide whether the matter requires
further inquiry by a criminal Court and whether it is expedient in the interests
of justice to have such inquiry. In the present case, the learned Sessions Judge
appears to have proceeded from the existence of discrepancies to the
conclusion that there was fabrication of false evidence, without sufficiently
identifying the precise false evidence or document, the manner in which the
same constituted an offence covered by Section 195(1)(b) and the reason why
prosecution was expedient in the interests of justice. The Court is conscious
that police officers are expected to maintain accurate records concerning the
arrest and custody of persons. Any deliberate manipulation of such records is
a matter which may call for appropriate action in accordance with law. But the
existence of a possible irregularity in the police record cannot, by itself, be
equated with an offence warranting a complaint under Section 340 Cr.P.C.
23. The principles laid down in the aforecited judgments support and
suggest a cautious approach. The Hon’ble Supreme Court has observed that
launching prosecution too readily and too frequently on inconclusive or
doubtful material defeats the very purpose of the provision. There should be a
reasonable foundation for the charge and the alleged falsehood should be
deliberate and conscious. The Court is required to look beyond the mere
existence of an alleged offence and examine whether prosecution would serve
the interests of administration of justice. The provision is discretionary and is
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not intended to be invoked as a matter of course. Viewed from the perspective
as discussed above, this Court is of the opinion that the impugned order
cannot be sustained. The material relied upon by the learned Sessions Judge
may have justified the expression of doubt regarding the arrest and custody of
the accused and may even have justified further examination of the conduct of
the concerned police officials. However, the material did not justify invoking
the special procedure under Section 340 Cr.P.C. in the absence of a clear
finding satisfying the statutory requirements of Section 195(1)(b) and Section
340 Cr.P.C. So far as the question as to whether order dated 12.09.2017 itself
could be directed to be treated as complaint as ordered by the learned Sessions
Judge is concerned, as per the provisions of Section 340 Cr.P.C., on being
satisfied that it is expedient in the interest of justice to make an inquiry, the
Court has to record a finding to that effect and then to make a complaint
thereof in writing. The learned Sessions Judge instead of making a complaint
in writing had passed the order for treating the impugned order itself as a
complaint, which, in the considered opinion of this Court, was not proper
procedure to be adopted.
24. Therefore, for the reasons recorded above, this Court finds that
the learned Sessions Judge exceeded the permissible scope of Section 340
Cr.P.C. by directing prosecution without adequately satisfying the statutory
requirements governing such a complaint. Consequently, the present appeal is
allowed. The complaint/order dated 12.09.2017 passed by the learned
Sessions Judge, Kaithal, whereby proceedings under Section 340 Cr.P.C. were
directed to be initiated against the appellants, is set aside.
25. It is clarified that this Court is not recording any finding that the
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allegations regarding the arrest, custody or preparation of police records are
false. Nor is this Court expressing any opinion on whether any departmental
or other action may otherwise be permissible in accordance with law. The only
question being decided is whether the complaint dated 12.09.2017 could be
sustained as a complaint under Section 340 Cr.P.C.
26. The pending application(s), if any, stand disposed of accordingly.
01.09.2026 (MANISHA BATRA)
Waseem Ansari
JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes
MOHAMMAD WASEEM ANSARI
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