# Ravinder Talwar v. State of U.P. & Anr. Oposite Parties

- **Citation:** (2020) 1 ILRA 1649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-19
- **Case number:** Application U/S 482 Cr.P.C. No. 11175 of 2004
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ravinder-talwar-v-state-of-u-p-anr-oposite-parties-45031
- **Pages:** 10

## Headnote

A. Requirements of Section 340 Cr.P.C -
two conditions are required to be fulfilled
- first, false affidavit in a proceedings
before Court - second, in the opinion of
the Court it should be expedient in the
interest of justice to make an inquiry
against such a person in relation to
offence committed - in order to form an
opinion, the Court is empowered to
conduct preliminary enquiry - after the
opinion is formed, the Court makes a
complaint to the Magistrate of First Class
concerned.

Absence of preliminary enquiry to reach such a
finding would not vitiate the finding reached by
the Court regarding the opinion. (Para 16)
There is no magic in recording the words that
"Court find it expedient in the interest of justice
1 All. Ravinder Talwar Vs. State of U.P. & Anr.
1651
that inquiry should be made" but from the
order of court, it should appear that Court
formed such opinion. (Para 23)

The Court, under Section 340 Cr.P.C., is not to
decide guilt or innocence of party against
whom proceedings are to be taken before
Magistrate. At this stage, Court only considers
whether it is expedient in the interest of justice
that an enquiry should be made for any offence
affecting administration of justice. (Para 17)

B. Section 195 Cr.P.C. - procedure given
under Section 340 Cr.P.C. is required to
be observed in order to proceed against
the offences given under Section 195
(1)(b)(i).

The offences under Section 195(1)(b)(i) Cr.P.C. is
a serious offence and relates to public confidence
in the system of justice, therefore, Section
195(1)(b) should be adopted cautiously and only
when the Court is satisfied that prosecution of
person concerned is in the interest of justice.
Court must be satisfied about the deliberate
falsehood as a matter of substance and that there
is a reasonable foundation for the charge. There
may be cases where a false affidavit may have
been filed or offence under Section 195 (1)(b)
might appear to have been committed, yet
proceedings ought to be initiated only when the
Court is satisfied that it is expedient in the interest
of justice that an inquiry should be made or a
complaint should be directed to be filed. (Para 13)

C. Natural Justice - no opportunity of
hearing is required to be given against
whom the complaint is filed.

The Scheme of the Statute would clearly show
that there is no statutory requirement to afford
an opportunity of hearing to persons against
whom
Court
may
file
complaint
before
Magistrate
for
initiating
prosecution
for
committing an offence under Section 195(1)(b)
of Cr.P.C. (Para 17)

Application u/s 482 rejected. (E-10)

List of cases cited: -

## Text

1650 INDIAN LAW REPORTS ALLAHABAD SERIES
respective first information report in their
official capacity on behalf of the same
department i.e. 45th Vahini P.A.C.,
Aligarh and not in their personal capacity.

30. After reading of the aforesaid
facts and after applying the principle of
sameness, this Court finds that both the
first information reports relate to the same
incident in respect of the same occurrence,
therefore, the submissions made by the
learned counsel for the applicant has
substance. The second first information
report dated 28th May/June, 2008 is liable
to be quashed. The judgment relied upon
by the learned Additional Government
Advocates for the State in the case of
Surender
Kaushik
(Supra)
is
not
applicable in the facts of the present as in
the instant case, there is no rival versions
or any improvisation in respect of the
same incident in both the first information
reports.

31. In the light of the judgements of
the Apex Court, referred to above, it is
explicitly clear that the second first
information report is cryptic and does not
stand the test laid down by the Apex
Court.

32. Accordingly, the present criminal
misc. application succeeds and is allowed.
The second first information report dated
28th May/June, 2008 and the impugned
charge-sheet dated 20th August, 2008 in
Case No. 7710 of 2008 arising out of Case
Crime No. 457 of 2008, under Sections
420, 468, 467 and 471 I.P.C., Police
Station-Quarsi,
District-Aligarh,
are
quashed leaving it open for opposite party
no.2 to file protest petition, if not already
filed, in Case Crime No. 457 of 2008,
under Sections 420, 468, 467 and 471
I.P.C., Police Station-Quarsi, DistrictAligarh. In case the final report submitted
by the Police in the said case has already
been accepted by the court concerned,
opposite party no.2 may file a fresh
application for re-investigation of the
matter in pursuance of the earlier first
information report lodged by him against
the applicant.
----------
(2020)1ILR 1649

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.10.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Application U/S 482 Cr.P.C. No. 11175 of 2004

Ravinder Talwar ...Applicant
Versus
State of U.P. & Anr. ...Oposite Parties

Counsel for the Applicant:
Sri G.S. Chaturvedi, Sri Samit Gopal

Counsel for the Opposite Parties:
A.G.A.

A. Requirements of Section 340 Cr.P.C -
two conditions are required to be fulfilled
- first, false affidavit in a proceedings
before Court - second, in the opinion of
the Court it should be expedient in the
interest of justice to make an inquiry
against such a person in relation to
offence committed - in order to form an
opinion, the Court is empowered to
conduct preliminary enquiry - after the
opinion is formed, the Court makes a
complaint to the Magistrate of First Class
concerned.

Absence of preliminary enquiry to reach such a
finding would not vitiate the finding reached by
the Court regarding the opinion. (Para 16)
There is no magic in recording the words that
"Court find it expedient in the interest of justice
1 All. Ravinder Talwar Vs. State of U.P. & Anr.
1651
that inquiry should be made" but from the
order of court, it should appear that Court
formed such opinion. (Para 23)

The Court, under Section 340 Cr.P.C., is not to
decide guilt or innocence of party against
whom proceedings are to be taken before
Magistrate. At this stage, Court only considers
whether it is expedient in the interest of justice
that an enquiry should be made for any offence
affecting administration of justice. (Para 17)

B. Section 195 Cr.P.C. - procedure given
under Section 340 Cr.P.C. is required to
be observed in order to proceed against
the offences given under Section 195
(1)(b)(i).

The offences under Section 195(1)(b)(i) Cr.P.C. is
a serious offence and relates to public confidence
in the system of justice, therefore, Section
195(1)(b) should be adopted cautiously and only
when the Court is satisfied that prosecution of
person concerned is in the interest of justice.
Court must be satisfied about the deliberate
falsehood as a matter of substance and that there
is a reasonable foundation for the charge. There
may be cases where a false affidavit may have
been filed or offence under Section 195 (1)(b)
might appear to have been committed, yet
proceedings ought to be initiated only when the
Court is satisfied that it is expedient in the interest
of justice that an inquiry should be made or a
complaint should be directed to be filed. (Para 13)

C. Natural Justice - no opportunity of
hearing is required to be given against
whom the complaint is filed.

The Scheme of the Statute would clearly show
that there is no statutory requirement to afford
an opportunity of hearing to persons against
whom
Court
may
file
complaint
before
Magistrate
for
initiating
prosecution
for
committing an offence under Section 195(1)(b)
of Cr.P.C. (Para 17)

Application u/s 482 rejected. (E-10)

List of cases cited: -

1. B.K. Gupta Vs. Damodar H. Bajaj and ors
2001 (9) SCC 742
2.
Syed
Asadullah Kazmi Vs. Additional
Magistrate 1988 (3) Crimes 330 (All)

3. Pritish Vs. State of Maharashtra 2002 (1)
SCC 253

4. M.S. Sheriff and anr Vs. State of Madras abd
ors AIR 1954 sc 397

5. Prem Sagar Manocha Vs. State (NCT of
Delhi) 2016 (4) SCC 571

6. Sidhartha Vashisth @ Manu Sharma Vs.
State (NCT of Delhi) 2010 (6) SCC 1

7. Sh. Narendra kumar Srivastava Vs. State of
Bihar and ors 2019 AIR (SC) 2675 (followed)

8. Santokh Singh Vs. Izhar Hussain and anr.
(1973) 2 SCC 406 (followed)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri G.S. Chaturvedi, learned
Senior Counsel assisted by Sri Samit
Gopal, learned counsel for applicant and
learned AGA for State of U.P.

2. This application under Section 482
Code
of
Criminal
Procedure,
1973
(hereinafter referred to as "Cr.P.C.") has
been filed by applicant- Ravinder Talwar
with a prayer that proceedings of Criminal
Complaint Case No. 3505 of 2000, High
Court of Judicature at Allahabad through
its Registrar General Vs. Ravinder Talwar
and another, under Sections 193, 196, 205,
209, 466, 468 IPC, Police Station Cantt.,
District Allahabad, pending in the Court of
Chief Judicial Magistrate, Allahabad, be
quashed. A further prayer has been made
to quash order dated 24.06.2000 passed by
Chief
Judicial
Magistrate,
Allahabad
(hereinafter referred to as "C.J.M.") in the
above criminal complaint case.

3. Facts in brief, giving rise to the
present application, are that a Writ Petition
1652 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 282 of 1989 was filed in the name of
Kashi Ram son of Sri Kabool Ram Sharma
through
Power
of
Attorney
Holder
Ravinder Talwar seeking a declaration that
U.P. Excise (Amendment) Act, 1998
(hereinafter referred to as "Amendment
Act, 1998") is ultravires. Further a
mandamus was also prayed for refund of
entire wholesale vending fee of foreign
liquor under licence F.L.II. An affidavit in
support of writ petition was sworn by one
Sri Suresh Kumar Goel son of Sri Banarh
Das, resident of 8/427, Kamoh Katera,
Saharanpur being Pairokar of agent
deputed by Principal.

4. Contesting writ petition, Excise
Authorities filed reply wherein a copy of
affidavit sworn by Kashi Ram himself was
appended stating that he has not authorized
anyone to file writ petition in the High Court.

5. Taking cognizance of this fact and
observing that above affidavit shows that
Power of Attorney Holder as well as
deponent of affidavit, both, have played
fraud with Court and presentation of writ
petition amounts to filing of a false
affidavit, a Division Bench consisting of
Hon'ble Ravi S. Dhavan, J. (as His
Lordships then was) and Hon'ble B.
Dikshit, J., vide order dated 22.07.1999
directed Registrar General of this Court to
file a complaint against both the above
persons, namely, Ravinder Talwar i.e.
applicant and Suresh Kumar Goel. Both
these persons were directed to answer
charge before C.J.M. and findings and
result of proceedings were directed to
return to High Court for conclusion of
proceedings and further action under
Procedure of High Court for Uttar Pradesh
(Act No. 13 of 1869). Writ Petition,
however,
was
dismissed
by
above
judgement.

6. Pursuant to above direction, a
complaint got registered as Complaint
Case No. 3505 of 2000 by Registrar
General vide complaint dated 24.06.2000,
under Sections 193, 196, 205, 209, 466,
468
IPC.
C.J.M.
vide
order
dated
24.06.2000 summoned accused persons
under aforesaid Sections. The above
proceedings have been challenged in the
present application.

7. It is contended that complaint in
question is purported to have been filed
under Section 195 Cr.P.C. which is not
attracted; procedure and requirement of
Section 340 Cr.P.C. is also not satisfied,
inasmuch as, there is no finding recorded
by Division Bench in its judgement dated
22.07.1999 that "it is expedient in the
interest of justice to make an inquiry";
Court has not applied its mind regarding
condition whether it was expedient in the
interest of justice to make an inquiry into
false affidavit given by accused applicant
and in absence of such observation,
Section 340 Cr.P.C. is not attracted. In
support of his contention, learned counsel
for applicant has placed reliance on a
Supreme Court's decision in B.K. Gupta
Vs. Damodar H. Bajaj and Others 2001
(9) SCC 742.

8. A short question up for consideration
is "whether complaint has been made in
compliance of requirement of Section 340
read with 195 Cr.P.C. or not".

9. Section 340 Cr.P.C., reads as
under:-

"340.
(1)
When,
upon
an
application made to it in this behalf or
otherwise any Court is of opinion that it
is expedient in the interest of justice that
an inquiry should be made into any
1 All. Ravinder Talwar Vs. State of U.P. & Anr.
1653
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 subsection (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.

(4) In this section," Court" has
the same meaning as in section 195."

(Emphasis added)

10. A perusal of Section 340 Cr.P.C.
shows that first of all, it is applicable in
respect of such cases which are covered by
Section 195(1)(b) Cr.P.C. and thus, I
reproduce above section also:-

"195(1) No Court shall take cognizance -

(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 authorise in
writing in this behalf, or of some other
Court to which that Court is subordinate"
(Emphasis added)

11. Section 195(1)(b)(i) Cr.P.C.
covers offenses under Sections 193 to 196,
199, 200, 205 to 211 and 228 IPC and,
therefore, it cannot be doubted that
procedure under Section 340 Cr.P.C. has
to be observed. It is not the case of
applicant that complaint has not been filed
by
competent
authority.
The
only
argument is that requirements of Section
340 Cr.P.C. are not satisfied.

12. The object of Section 340 Cr.P.C.
is to provide a safeguard against frivolous
1654 INDIAN LAW REPORTS ALLAHABAD SERIES
and vexatious prosecution. For taking
action under Section 340 Cr.P.C. it is no
doubt true that Court has to form an
opinion that it is expedient in the interest
of justice that an inquiry should be made
for an offence referred to in Section
195(1)(b) Cr.P.C. which appears to have
been committed or in relation to a
proceeding in that Court.

13. This Court in Syed Asadullah
Kazmi Vs. Additional Magistrate 1988
(3) Crimes 330 (All) has observed that
Sections 340 and 195 Cr.P.C. are closely
connected and in order to have a
harmonious consideration, they should be
read together. An offence under Section
195(1)(b)(i) Cr.P.C. is a serious offence
and relates to public confidence in the
system of justice, therefore, Section
195(1)(b)
should
be
adopted
very
cautiously and only when Court is satisfied
that prosecution of person concerned is in
the interest of justice. Section 340 Cr.P.C.
commenced with words "It is expedient in
the interest of justice that an inquiry
should be made" and this is a guiding
factor
constituting
a
foundation
for
proceeding of this nature. In other words,
it is only in glaring cases of deliberate
falsehood where Court should direct that
an inquiry should be made or complaint
should be filed but this discretion has to be
exercised judicially in the light of all
relevant circumstances, and not with a
view to satisfy personal feelings or
vindictiveness. Court must be satisfied
about the deliberate falsehood as a matter
of substance and that there is a reasonable
foundation for the charge. There may be
cases where a false affidavit may have
been filed or offence under Section
195(1)(b) might appear to have been
committed, yet proceedings ought to be
initiated only when Court is satisfied that
it is expedient in the interest of justice that
an inquiry should be made or a complaint
should be directed to be filed.

14. It is not necessary to burden this
judgement with number of authorities on
the subject but suffice it to refer a few very
straight on the point.

15. In B.K. Gupta (supra), learned
Single Judge of Bombay High Court while
deciding writ petition found that a false
statement on oath was made and litigant
also adduced evidence known to be false
and fabricated. Exercising power under
Section 340 Cr.P.C., learned Single Judge
issued notice to accused to show-cause for
having committed offence referred to
under
Section
195(1)(b)
Cr.P.C..
Thereupon concerned person appeared
through counsel and learned Single Judge
found that incumbent had intentionally
made false statement on oath and adduced
evidence known to be false and fabricated,
therefore, direction was issued for filing
complaint before Magistrate against said
person. This order was challenged before
Supreme Court and it was argued that
learned Single judge has not applied its
mind whether it was expedient in the
interest of justice that a complaint be filed
against such person. Supreme Court said
that there are two conditions on fulfillment
whereof, a complaint can be filed against a
person who has given a false affidavit or
evidence in a proceeding before Court.
First, such person has given a false
affidavit in a proceeding before Court and
secondly, in the opinion of Court, it is
expedient in the interest of justice to make
an inquiry against such a person in relation
to an offence committed by him. Court
allowed appeal after recording its finding
that from record, it could not find
application of mind by learned Single
1 All. Ravinder Talwar Vs. State of U.P. & Anr.
1655
Judge on the aspect that it was expedient
in the interest of justice to make an
inquiry.

16. Section 340 Cr.P.C. then came up
for consideration before a three Judges'
Bench
in
Pritish
Vs.
State
of
Maharashtra 2002 (1) SCC 253. Therein
State Government for construction of a
canal under Arunwati Project in 1985
sought to acquire 3.9 acres of land. Land
Acquisition Officer awarded compensation
of Rs. 24,000/- for entire land. Owner
being dissatisfied with award went for
reference under Section 18 of Land
Acquisition
Act,
1894
(hereinafter
referred to as "L.A. Act, 1894") whereon
Reference Court on the basis of evidence
adduced
by
parties
increased
compensation to Rs. 10,30,000/-, besides
other benefits like solatium etc., vide
award dated 23.04.1993. Appellant Pritish
was one of the beneficiary of this award
which was made on the basis of evidence
adduced by parties including Pritish. Land
owners still felt dissatisfied with such
enhancement and moved further in appeal
to High Court but it was dismissed. In
1995, some persons of locality brought to
the notice of Reference Court that land
owners
had
wrangled
a
whopping
enhancement after playing chicanery on
the Court by producing forged copies of
sale deeds for supporting their claim for
enhancement. The documents marked as
Exts. 31, 32 and 35 were fabricated copies
of sale deeds. Reference Court made
inquiry and found such documents forged.
It called upon relevant record from SubRegistrar and found that documents
presented before it were forged. Court thus
found that appellant Pritish and one
Rajkumar
Anandrao
Gulhane
have
committed
offence
affecting
administration of justice by making forged
documents. Court passed an order for
filing complaint in writing against above
two persons before Magistrate concerned.
The person who complaint about this
forgery felt that action should have been
taken against some others also, hence,
preferred an appeal before District Judge
who passed an order on 12.08.1996
directing that complaint should be filed
against
five
more
persons
besides
appellant Pritish and Rajkumar Anandrao
Ghulane whereagainst Reference Court
has passed order. Those five persons went
to High Court and got proceedings against
them quashed. Pritish came to High Court
filing an appeal under Section 341 and
said that Reference Court has passed order
in violation of principles of natural justice
and made inquiry without giving any
opportunity to him. Learned Single Judge
repelled contention and observed that
under Section 340 Cr.P.C., no opportunity
is required to be given to person against
whom complaint is to be filed and such
person has no right to be heard. Same
issue was raised before Supreme Court.
Referring to Section 340, Court observed
that basic requirement to apply Section
340 is formation of an opinion by Court
that it is expedient in the interest of justice
that an inquiry should be made for an
offence which appears to have been
committed. In order to form such opinion,
Court is empowered to hold a preliminary
inquiry. Even without holding such
preliminary inquiry, Court can form such
opinion when it appears to Court that such
offence is made out in relation to a
proceeding in that Court. When Court
forms such an opinion, it is not mandatory
that Court should make a complaint.
Section 340 confers power to do so but it
does not mean that Court should give a
complaint but once Court decides to do so,
then Court should make a finding to the
1656 INDIAN LAW REPORTS ALLAHABAD SERIES
effect that on the fact situation it is
expedient in the interest of justice that
offence should further be probed into. If
Court finds it necessary to conduct a
preliminary inquiry to reach such a
finding, it is always open to Court to do
so,
though
absence
of
any
such
preliminary inquiry would not vitiate a
finding reached by Court regarding its
opinion.
Further,
preliminary
inquiry
contemplated is not for finding whether a
particular person is guilty or not. The
purpose of preliminary inquiry, if 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 or not.
Court also examined inquiry as defined in
Section 2(g) of Cr.P.C. and said that
observation made by Court that it is
expedient to hold inquiry means an inquiry
to be conducted by Magistrate. Once Court
forms an opinion, whether it is after
conducting preliminary inquiry or not, it is
expedient in the interest of justice that an
inquiry should be made into an offence,
said Court has to make a complaint in
writing to Magistrate of First Class
concerned as such offences are all falling
within the purview of warrant case as
defined under Section 2(x) Cr.P.C.,
Magistrate concerned has to follow the
procedure prescribed in Chapter XIX of
Cr.P.C.. Section 343 Cr.P.C. specifies that
Magistrate to whom complaint is made
under Section 340 or 341 Cr.P.C. shall
proceed to deal with the case as if it were
instituted on a police report. That being so,
Magistrate on receiving complaint, shall
proceed under Section 238 to 243 of
Cr.P.C. Thus, the legal right of person
against whom complaint is made to be
heard, arises only when Magistrate calls
accused to appear before him and not
earlier thereto.

17. The scheme of Statute would
clearly show that there is no statutory
requirement to afford an opportunity of
hearing to persons against whom Court
may file complaint before Magistrate for
initiating prosecution for committing an
offence
under
Section
195(1)(b)
of
Cr.P.C.. Having said so, it was further
observed by Supreme Court that Section
340 Cr.P.C. is not to decide guilt or
innocence
of
party
against
whom
proceedings are to be taken before
Magistrate. At that stage, Court only
consider whether it is expedient in the
interest of justice that an inquiry should be
made
for
any
offence
affecting
administration of justice.

18. In M.S. Sheriff and Another vs.
State of Madras and Others AIR 1954
SC 397, a Constitution Bench said that no
expression on the guilt or innocence of
persons should be made by Court while
passing an order under Section 340 of
Cr.P.C.. An exercise at that stage is not for
finding
whether
any
offence
was
committed or who committed the same.
The scope is confined to see whether
Court could then decide on the materials
available that the matter requires inquiry
by a criminal Court and that it is expedient
in the interest of justice to have it inquired
into. This decision of Constitution Bench
has also been followed by a three Judges'
Bench in Pritish (supra) observing that
Court when decide to make a complaint
under Section 340 is not to record finding
of guilt or innocence of person against
whom complaint is to be made before
Magistrate.

19. Above authorities explain as to
what is required to be done and what is the
scope of consideration by Court whether
1 All. Ravinder Talwar Vs. State of U.P. & Anr.
1657
an offence enumerated under Section
195(1)(b) has been committed.

20. In Prem Sagar Manocha Vs.
State (NCT of Delhi) 2016 (4) SCC 571,
in connection with FIR No. 287 of 1999
registered as P.S. Mehrauli (Jessica Lal
Murder Case), Police sought an expert
opinion from State Forensic Science
Laboratory, Rajasthan by letter dated
19.01.2000
on
the
following
three
questions:

"1. Please examine and opine
the bore of the two empty cartridges
present in the sealed parcel.

2. Please opine whether these
two empty cartridges have been fired from
a pistol or a revolver.

3. Whether both the empty
cartridges have been fired from the same
firearm or otherwise."

21. Appellant Prem Sagar Manocha
was working as Deputy Director of said
Laboratory. He forwarded a report dated
04.02.2000 with following result of
examination:

"(i) The caliber of two cartridge
cases (C/1 and C/2) is .22.

(ii) These two cartridge cases
(C/1 and C/2) appear to have been fired
from pistol.

(iii) No definite opinion could be
given on two .22 cartridge cases (C/1 and
C/2) in order to link firearm unless the
suspected
firearm
is
available
for
examination."

22. During trial before Sessions
Court, New Delhi, 101 witnesses were
examined for prosecution and appellant
Prem Sagar Manocha was witnessed PW95. Trial Court acquitted all ten persons. In
Appeal, Delhi High Court convicted all of
them vide judgement dated 20.12.2006.
Conviction was also upheld by Supreme
Court
vide
judgment
in
Sidhartha
Vashisht @ Manu Sharma vs. State
(NCT of Delhi) 2010 (6) SCC 1.
Anguished by conduct of some witnesses
turning hostile, High Court in appeal
against acquittal, conducted suo motu
proceedings against 32 witnesses including
appellant Prem Sagar Manocha. In respect
of appellant, High Court was of the
opinion that he had reflected a shift in the
stand from written opinion and that is how,
helped accused, which is an offence under
Section 193 IPC. Court, therefore, directed
for registration of a case under Section 340
Cr.P.C. vide order dated 22.05.2013
whereagainst Sri Manocha filed an appeal
before Supreme Court. Supreme Court
relied on an earlier judgement in Pritish
(supra) and said that Section 340 Cr.P.C.
can be successfully invoked even without
a preliminary inquiry since the whole
purpose of inquiry is only to decide
whether it is expedient in the interest of
justice to inquire into the offence which
appears
to
have
been
committed.
Thereafter, in para-13 of judgement quoted
relevant part of High Court's order and
said that said order shows that High Court
did form an opinion after inquiry.

23. There is no magic in recording
the words that "Court find it expedient in
the interest of justice that inquiry should
be made" but from order of Court, it
should appear that Court has formed such
opinion. Court also referred to an earlier
Section 479-A of Code of Criminal
Procedure, 1898 (hereinafter referred to as
"Cr.P.C., 1898") which became Section
340 Cr.P.C. and pointed out distinction
that under old statute, it was mandatory to
record a finding after preliminary inquiry
1658 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding the commission of offence but
the word ''shall' as it was in Section 479-A
of Cr.P.C., 1898 is substituted by word
''may' in Section 340 Cr.P.C. as a result
thereof it is no more mandatory that Court
should record a finding. What is now
required is only recording the finding of
preliminary inquiry which is meant only to
form an opinion of Court, and that too,
opinion on an offence which appears to
have been committed, as to whether the
same should be duly inquired into.

24. I find a very recent judgement in
Sh. Narendra Kumar Srivastava Vs.
State of Bihar and Others 2019 AIR
(SC) 2675, dealing with this aspect. It is
held therein that requirement of formation
of opinion of Court that it is expedient in
the interest of justice that an inquiry
should be made, is with an objective that
prosecution should be ordered if it is in the
larger interest of administration of justice
and not to gratify feelings of personal
revenge or vindictiveness or to serve the
ends of a private party. Court referred to
an earlier decision in Santokh Singh vs.
Izhar Hussain and Another (1973) 2
SCC 406 and observed that too frequent
prosecutions for such offences tend to
defeat its very object. It is only in glaring
cases of deliberate falsehood where
conviction is highly likely that Court
should direct prosecution.

25. Now, I proceed to examine the
order of this Court whether satisfy the
requirement of law as discussed above.

26. An extraordinary constitutional
remedy under Article 226 was invoked by
filing a writ petition under Article 226
before this Court in the name of Kashi
Ram, (petitioner) but he himself did not
file writ petition. Instead, it was filed
through Ravinder Talwar who claims to be
a Holder of Power of Attorney of Kashi
Ram. Writ petition involves an important
question of vires of Amendment Act, 1998
and also seeks a mandamus that entire
vend fee deposited by petitioner should be
refunded. State Government and Excise
Department while contesting writ petition
filed an affidavit of Kashi Ram son of
Kabool Ram Sharma stating that he has
not authorized anyone to file writ petition.
Meaning thereby, a writ petition involving
serious issue of constitutional validity of a
Statute was filed by an unauthorized
person, making false claim that he was
holding Power of Attorney of Kashi Ram
and authorized to file writ petition. Court
prima facie found that it is a case of fraud
played upon Court and it may have
resulted in interfering with legislation at
the instance of a person who had no
authority to bring an action in writ Court.
Observation of Court that this kind of
fraud cannot be allowed to encourage, so
as to bring any unwarranted writ petition
before
this
Court,
shows
that
administration of justice in larger public
interest required action in such matter and
also inquiry need be conducted against
person concerned who has played fraud
with Court. Court has observed that in a
fraudulent manner and by filing an
unauthorized writ petition with a false
affidavit, an attempt was made to utilize
prerogative jurisdiction of Court and to
seek extraordinary remedy by claiming
that legislative enactment is ultravires and
also
to
seek
refund
from
Excise
Department and this is a serious matter.

27. In my view, impugned order of
Court if read as a whole, it cannot be said
that Court has not recorded its opinion that
it is expedient in the interest of justice that
an inquiry should be made, inasmuch as,
1 All. Ravinder Talwar Vs. State of U.P. & Anr.
1659
entire order of Court shows that Court
found that action in question amounts to
playing fraud with Court and unauthorized
and unwarranted invocation of prerogative
writ jurisdiction that too involving such a
serious matter cannot be encouraged
which shows that Court was clearly of the
opinion that larger public interest required
inquiry in the matter. For considering the
compliance of requirement of Section 340
Cr.P.C. one has to look into substance of
the order and should not expect a technical
literal compliance by using the word stated
in the Statute. If order shows substantive
compliance and requirement of statute,
such
order
does
not
require
any
interference.

28. Hence, I do not find any
substance in the argument advanced on
behalf of applicant.

29. No other point has been argued.

30. Application lacks merits and is
accordingly dismissed.

31. Interim order, if any, stands
vacated.
----------
(2020)1ILR 1658

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2019

BEFORE
THE HON'BLE VIVEK KUMAR SINGH, J.

Application U/S 482 Cr.P.C. No. 11645 of 2007

Sartaj ...Applicant
Versus
State of U.P. ...Oposite Party

Counsel for the Applicant:
Sri Anil Mullick
Counsel for the Opposite Party:
A.G.A.

A. Double Jeopardy - applicant was
acquitted of charges levied under Section
384/506 IPC read with Section 7 of
Criminal Law Amendment Act - during the
pendency of the abovementioned trial
proceedings, an FIR was lodged under
Section 2/3 of the U.P. Gangster AntiSocial Activities (Prevention) Act, 1986 -
applicant cannot be tried for the same
offence again - proceedings under the
Gangster
Act
are
not
independent
proceedings - trial under the Gangster
Act is illegal and unjustified.

Application u/s 482 allowed. (E-10)
List of cases cited: -

1. Pritam Singh and anr Vs. State of Punjab
AIR 1956 Supreme Court 415

2. N.R. Gosh Vs. The State of West Bengal AIR
196 Supreme Court (SC) 239

3.
Manipur
Adminstration,
Manipur
Vs.
Thokchon Veere Singh AIR 1965 (SC) 87

4. Lalta and ors Vs. State of U.P. AIR 1970 (SC) 1381

5. Municipal Corporation of Delhi Vs. Shiv Singh
1971 (1) SCC 422

6. Bhagat Ram Vs. State of Rajasthan (1972) 2
SCC 466

7. Masood Khan Vs. State of U.P. (1974) 3 SCC 469

8. V.K. Agarwal, Assistant Collector of Customs
Vs. Vasant Raj Bhagwan Ji Bhatia and ors
(1988) 3 SCC 467

9. Kolla Vira Raghav Rao Vs. Gorantia
Vlalalalalal Rao, (2011) 2 SCC 703

(Delivered by Hon'ble Vivek Kumar Singh, J.)

1. Heard Sri Anil Mullick learned
counsel for the applicant and Sri Abhinav