- (1.) IN both these applications, similar question of law is involved and in both cases Kiran Kumari Mishra @ Kumari Kiran is O.P. No. 2, therefore, both the applications heard together and are being disposed of by this common order.
(2.) IT appears that the O.P. No. 2 had filed two complaints in the court of CJM, Dumka bearing number P.C.R Case No. 270 of 2005 against the petitioner of Cr.M.P. No. 686 of 2006 and another bearing P.C.R. Case No. 341 of 2005 against the petitioner of Cr.M.P. No. 687 of 2006. In both the complaints, O.P. No. 2 had stated that she had filed an application for maintenance under section 125 of the Cr.P.C. against her husband Uttam Kumar Choubey and the said application was registered as Cr. Misc Case No. 39 of 2002 and is pending in the court of Principal Judge, Family Court, Dumka. It is further alleged that petitioners Manikant Dubey and Pravash Chandra Mishra had deposed in the aforesaid Cr. Misc case no. 39 of 2002 as D.W. 1 and D.W. 4 respectively. It is alleged that they have given false evidence before the Principal Judge, Family Court, Dumka. Accordingly, she alleged that both the petitioners had committed an offence under section 193, 196, 200, 209, 417, 468 and 469 of the IPC and prayed that the petitioners be punished for the said offences after conducting a full fledged trial. It appears that the learned CJM, Dumka sent both the complaints to Officer -In -Charge, Dumka (T) police station for investigation as per the provisions contained under section 156(3) of the Cr.P.C. It appears that after receipt of the complaint petitions, two First Information Reports bearing Dumka(T) P.S. Case No. 273 of 2005 dated 18.12.2005 and Dumka ( T) P.S. Case No. 155 of 2005 dated 20.7.2005 instituted under section 193, 196, 200, 209, 417, 468 and 469 of the IPC and police took up investigation. The present applications filed for quashing the aforesaid two First Information Reports and also entire criminal proceeding arising from those First Information Reports. It is submitted by learned counsel for the petitioners that from perusal of complaint petitions, it appears that the allegation has been made against both the petitioners for adducing false evidence in court and it is alleged that the petitioners had committed an offence under sections 193, 196, 200, 209, 417, 468, 469 of the IPC. It is submitted that under the aforesaid circumstance, section 195 and 340 of the Code of Criminal Procedure come into play and as per the said provision the only procedure which could be followed was to make an application to the court in which the alleged false evidence was given. It is submitted that, that court has power under section 340 of the Cr.P.C. to make enquiry and if the said court is of opinion that the offences enumerated in section 195(1)(b) of the Code of Criminal Procedure has been committed, it may file a complaint in a competent court. It is submitted that in view of aforesaid provisions enumerated in section 195 and 340 of the Code of Criminal Procedure, no FIR and/or private complaint can be filed and the police have no power to investigate on the basis of the aforesaid FIR. Accordingly, it is submitted that the CJM, Dumka had committed serious illegality in sending the aforesaid two complaint petitions to Dumka (T) police station for registration of FIR and investigation. It is submitted that in view of the aforesaid bar prescribed in the Code of Criminal Procedure, the aforesaid two First Information Reports and further criminal proceeding initiated on the basis of said First Information Reports are liable to be quashed by this Court. The learned counsel for the petitioners in support of his contention had relied upon the judgment of Hon'ble Supreme Court in Iqbal Singh Marwah and another vs. Meenakshi Marwah and another reported in (2005) 4 SCC 370.
(3.) ON the other hand, learned counsel for the opposite party, submitted that section 195 and 340 of the Code of Criminal Procedure do not control the power of police to investigate a cognizable offence reported to it. It is further submitted that under section 195 of the Cr.P.C. the bar is with regard to the taking of the cognizance. Thus if after investigation police submits charge sheet then in view of section 195 of the Cr.P.C. the court concerned cannot take cognizance on the basis of said charge sheet. But, the court concerned can make enquiry as per the provisions contained under section 340 of the Cr.P.C. and if the court is of opinion that the offences enumerated under section 195 (1)(b) has been committed, it can file complaint. The learned counsel for the opposite party in support of his contention relied upon two judgments of Supreme Court delivered in State of Punjab Vs. Raj Singh and another (1998)2SCC391 and in M. Narayandas Vs. State of Karnataka and others (2003)11SCC251. It is submitted that in view of the aforesaid law laid down by their Lordships of Supreme Court, there is no illegality in institution of aforesaid two First Information Reports and therefore the present petitions filed by the petitioners is liable to be dismissed.;