Hon'ble Arvind Kumar Tripathi (II),J.
We have heard learned counsel for the parties at some length and have perused the record.
The present Habeas Corpus writ petition has been filed by petitioner Shyam Manohar Tewari with the following prayer:
"a) Issue a writ, direction or order in the nature of Habeas Corpus directing the opposite parties to produce the petitioner before this Hon'ble Court and there after set him free as the police has detained him without any wrong committed by petitioner.
b) ......"
At the very outset, it would be apposite to mention that during the course of arguments, it was admitted by the learned counsel for petitioner Shyam Manohar Tewari that the petitioner was bailed out by the Court of Session, Hardoi on 27.3.2014, and now he is not in the custody of the opposite parties.
Thus, it is evident that since the petitioner is not in the custody of the opposite parties, the relief prayed for stands exhausted.
It may also be mentioned that the petitioner has moved C.M. Application No. 61011 of 2014 for making an inquiry under Section 340 Code of Criminal Procedure (for short, the Code) against Manoj Kumar Misra, Station Officer, Police Station Ganga Ghat, District Unnao for making a false statement in the counter affidavit to the effect that the police of Police Station Ganga Ghat, District Unnao does not have any information relating to the fact of taking away of the petitioner by the police of Police Station Sandila, district Hardoi.
It was vehemently submitted that the Station Officer of Police Station Ganga Ghat, district Unnao (Manoj Kumar Misra has made a false statement in counter affidavit filed by him, thus, an inquiry be conducted and proper action be taken against him.
At this stage, we feel it necessary to make a mention of the bare facts of the case.
The petitioner has pleaded in the Habeas Corpus writ petition that one Girdhar Gopal Gupta (opposite party no.6) has political connections. He threatened petitioner's son and demanded illegal money from him. In that regard, petitioner's son move application before the police on 21.12.2013 for which proceedings under Section 107/116/116(3) of the Code were initiated against said Girdhar Gopal Gupta. It has further been pleaded that in the intervening night of 12th and 13th March, 2014 the police of Police Station-Ganga Ghat, District- Unnao came to the petitioner's house and started searching for Sanjay Tiwari, son of the petitioner. Since he was not at home the police took the petitioner with them.
An application was moved before the Chief Judicial Magistrate, Unnao on 13.3.2014 by petitioner's wife and a report was called for from the Police Station. Later on, it was known that the police of Police Station-Sandila, District-Hardoi had detained the petitioner illegally at the Police Station at the instance of said Girdhar Gopal Gupta.It is pleaded that arrest and detention of the petitioner by the police Police Station-Sandila, District-Hardoi was illegal and arbitrary and also in violation of fundamental right guaranteed under Article 21 of the Constitution.
It appears that when an application was moved by the wife of the petitioner before the Chief Judicial Magistrate, Unnao on 13.3.2014, the following report was submitted by the police of Police Station Ganga Ghat, District Unnao.
"fjiksVZ Fkkuk xaxk?kkV] tuin mUuko-
egksn;] fuosnu gS fd Fkkuk xaxk?kkV dh iqfyl bldk dksbZ lEca/k ugha gS] irk pyk gS fd laMhyk iqfyl ds fdlh ekeys okafNr gSA ftUgs Jh ";ke euksgj frokjh s/o Hkxorh izlkn frokjh r/o _f"k uxj] p/s xaxk/kkV] mUuko dks p/s laMhyk tuin gjnksbZ fd iqfyl vius lkFk ys xbZ gS- Lfkkuh; Fkkuk ls dksbZ lEca/k ugha gS.
fjiksVZ lsok esa izf"kr gSA Sd/ 22.03.2014"
Again, when the Habeas Corpus writ petition was filed before this Court on 14.3.2014, a counter affidavit was filed by Manoj Kumar Misra on 12.5.2014 to the following effect.
";g fd lEekfur U;k;ky; ds le{k fuosnuiwoZd ;g dguk gS fd Fkkuk xaxk?kkV] tuin mUuko ij izdj.k mijksDr ds lEcU/k esa u rks dksbZ eqdnek iathd`r gS vkSj u gh ;kph fdlh ekeys esa okafNr gS vkSj u gh ;kph dks xaxk?kkV dh iqfyl }kjk fxjQ~rkj fd;k x;k gSA izdj.k mijksDr ls lEcfU/kr dksbZ Hkh tkudkjh Fkkuk Lfkkuh; ij miyC/k ugha gSA"
It was argued by learned counsel for the petitioner that the report and the averments made in paragraph 4 of the counter affidavit are contradictory and clearly go to show that Manoj Kumar Misra, the then Station Officer of Police Station Ganga Ghat, district Unnao has given a wrong statement in his counter affidavit.
Before proceeding further, it may be appropriate to reiterate provision of Section 340 (1) of the Code.
"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).....
(b)....."
A perusal of the above quoted Section 340 (1) of the Code makes it very clear that before proceeding, any Court has to give a positive finding that it is expedient in the interest of justice that an inquiry should be made into the matter. It is well settled proposition of law that an inquiry held under Section 340 (1) of the Code is to be scrutinized with care and caution in order to ensure that on the basis of frivolous complaint, action is not taken against a person who has a right to purse his cause. Further Section 340 (1) of the Code confers a discretion on the Court to decide whether the complaint should be filed after inquiry is held under Section 340 (1) of the Code. It is also well settled that provisions of Section 340 (1) of the Code cannot be resorted to on mere allegations or to vindicate personal vendetta. The Court, in a proceeding under Section 340 (1) of the Code, or before directing a complaint to be lodged, must form an opinion of being satisfied, or come to a conclusion of such satisfaction, that the person charged has intentionally given false facts or statement.
On the above principles, the present case is to be scrutinized. As earlier we have quoted verbatim, in the report given by the police of Police Station Ganga Ghat, district Unnao, it has been mentioned "irk pyk gS fd laMhyk iqfyl ds fdlh ekeys okafNr gSA ftUgs Jh ";ke euksgj frokjh s/o Hkxorh izlkn frokjh r/o _f"k uxj] p/s xaxk/kkV] mUuko dks p/s laMhyk tuin gjnksbZ fd iqfyl vius lkFk ys xbZ gS- LFkkuh; Fkkuk ls dksbZ lEca/k ugha gS." The report does not show that it was made on the basis of personal knowledge. The report has also not been filed on affidavit. So it is a simple report. The averments made in the counter affidavit, referred to above, have been made on oath whereby it has been stated that "izdj.k mijksDr ls lEcfU/kr dksbZ Hkh tkudkjh Fkkuk Lfkkuh; ij miyC/k ugha gSA". This averment in the counter affidavit cannot be said to be false because till the filing of the counter affidavit, neither any case was lodged against the petitioner, nor was pending in Police Station Ganga Ghat, District Unnao, and the petitioner was not arrested by the police of said police station. It has come through affidavits that the petitioner was arrested by the police of Police Station Sandila, district Hardoi. An affidavit filed by the Circle Officer, Shahbad, District Hardoi is also on record wherein it is mentioned that a case under Section 419, 420, 406, 506, 354Ka, 354Gha, 376 IPC and Sections 65 & 66 of the I.T. Act was lodged as Crime No. 362 of 2014 at Police Station Sandila, district Hardoi against son of the petitioner, and during the course of investigation, name of the petitioner also cropped up, and he was arrested by Sub-Inspector Altaf Ansari on 14.3.2014 at Lucknow-Hardoi road.
The main contention of learned counsel for the petitioner is that even before report was submitted to the Chief Judicial Magistrate, Unnao, deponent Manoj Kumar Misra was aware of the fact that the petitioner has been arrested by the police of Police Station Sandila, district Hardoi. Thus, non submission of the above fact before this Court in his counter affidavit, would amount to giving a false statement.
We are unable to accept this submission of learned counsel for the petitioner for the simple reason that report submitted to the Chief Judicial Magistrate, Unnao was given on 22.3.2014, but the counsel for the petitioner was unable to show that as to how this report comes within the purview of Section 195 of Cr.P.C.
In view of the above, we are of the considered opinion that considering the entire facts and circumstances of the case, there is no need to enquire into the matter as it cannot be said that it would be expedient in the interest of justice to enquire.
The result of the above discussions is that the Habeas Corpus writ petition deserves to be dismissed and the application under Section 195/340 of the Code also deserve to be rejected.
We order accordingly.
Order Date :- 09.10.2014 anb