Object 1

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Neutral Citation No. - 2023:AHC:158255

In Chamber
Case :- APPLICATION U/S 482 No. - 15802 of 2023
Applicant :- Imran Khan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Rahul Kumar Tiwari,Sandeep Kumar
Counsel for Opposite Party :- G.A.

Hon'ble Surendra Singh-I,J.

1. This application under Section 482 Cr.P.C. has been filed against the
impugned order dated 08.04.2022 passed by the Additional Chief Judicial
Magistrate, Court No. 2, Budaun passed in Misc. Case No. 1664 of 2020,
Imran vs. Ahtesham Miyan, under Section 340 Cr.P.C., Police Station
Kotwali, District Budaun.

2. By the impugned order, the Trial Court rejected the applicant’s application
under Section 340 Cr.P.C.

3. The applicant had filed an application under Section 340 Cr.P.C. read with
Section 195 Cr.P.C. relating to Criminal Case No. 10063 of 2016, State vs.
Imran and others, arising out of Case Crime No. 592 of 2016, under Sections
498-A, 323, 504 I.P.C. and Section ¾ D.P. Act, Police Station Kotwali,
District Budaun.

4. The order taking cognizance was challenged in Application U/S 482 No.
23574 of 2018, Imran and 2 others vs. State of U.P. and 2 others, whereon
another co-ordinate Bench of this Court vide order dated 19.07.2018,
restrained the authorities to take coercive measures against applicant-
accused Afzal Hussain and Smt. Shameem Begam till the next date of
listing. The said order of this Court was vacated by the Trial Court relying
on the judgment of the Apex Court in Asian Resurfacing of Road Agency
Private Limited and Another v. Central Bureau of Investigation 1, and
notice was issued to the aforesaid co-accused to file any speaking order of

1. (2018) 16 SCC 299

 APPLICATION U/S 482 No. - 15802 of 2023, Imran Khan vs. State of U.P. and another

the High Court extending the stay granted to them against such proceedings
of the Trial Court.

5. Co-accused Afzal Hussain and Smt. Shameem Begam filed Application

U/S 482 No. 2655 of 2020, Afzal Hussain and another vs. State of U.P. and 2
others before this Court. Another Bench of this Court vide order dated
20.02.2020, consolidated this application u/s 482 with previous Application
U/S 482 No. 23574 of 2018 and directed the Trial Court not to take coercive
action against the applicants Afzal Hussain and Smt. Shameem Begam till
disposal of Application U/S 482 No. 23574 of 2018.

6. After lapse of more than six months, the informant Ahtesham Miyan
submitted an application dated 14.10.2020 before the Trial Court in the
aforesaid Criminal Case No. 10063 of 2016, stating that more than six
months have elapsed since the interim order was passed in favour of the
applicants and it has not been further extended by any speaking order. On
the application of the informant Ahtesham Miyan, the Trial Court issued
notice against the accused on 14.10.2020 directing them to file any fresh
order of the High Court extending the indulgence of no coercive action
passed in their favour on 20.02.2020.

7. Against the aforesaid notice issued by the Trial Court, applicant Imran
Khan filed Misc. Application No. 1664 of 2020, Imran Khan vs. Ahtesham
Miyan in the Trial Court on 21.11.2020, under Section 340 Cr.P.C. read with
Section 195 Cr.P.C.. In this application applicant had stated that the High
Court had passed order of no coercive action against them on 20.02.2020
and had fixed 13.03.2020 as the next date for hearing. The informant had
knowledge of this order and the date fixed in the Application U/S 482
Cr.P.C., nevertheless, he submitted application dated 14.10.2020 praying for
vacation of stay granted by the High Court in favour of the accused in
compliance with the judgment of the Apex Court in Asian Resurfacing of
Road Agency Private Limited (supra) and issuance of N.B.W. against the
accused. Therefore, proceedings against the accused under Section 340

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 APPLICATION U/S 482 No. - 15802 of 2023, Imran Khan vs. State of U.P. and another

Cr.P.C. read with Section 195 be started and accused be tried and punished
under Sections 182, 186, 190, 199 and 200 I.P.C. The Trial Court rejected
the application vide order dated 08.04.2022 on the ground that a perusal of
the order sheet dated 06.11.2020 of Criminal Case No. 10063 of 2016, it
transpires that the Trial Court had left the informant after admonishing him
that he may not file any misconceived application in future and, therefore,
there is no justification for further proceeding against the accused.

8. Against the impugned order dated 08.04.2022 passed by the Trial Court,
applicant filed Criminal Appeal No. 38 of 2022, under Section 341 Cr.P.C. in
the Court of Sessions which was transferred and rejected by the Court of
Additional Sessions Judge, Court No. 5, Budaun on the ground that
applicant had justification for filing application dated 14.10.2020 in the Trial
Court with the prayer that more than six months have passed since the order
of no coercive measures have been passed and no fresh orders have been
filed in the Trial Court and the Trial Court was justified in compliance with
judgement of the Apex Court in Asian Resurfacing of Road Agency
Private Limited (Supra) deem the interim order passed in favour of the
accused, vacated and ensure their presence by taking coercive measures.

9. The applicants have prayed in their application under Section 340 Cr.P.C.
read with section 195 Cr.P.C. that penal proceedings may be taken against
the accused under the provisions of Section 195(1)(a)(i) read with Section
340 Cr.P.C. for committing offnece under Sections 182, 186, 190, 199, 200
I.P.C. and Section 195(1)(b)(ii) I.P.C.

10. Section 195 Cr.P.C. deals with contempt of lawful authority of public
servants, for offences against public justice and for offences relating to
documents given in evidence. Section 195 Cr.P.C. is reproduced herein
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.

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 APPLICATION U/S 482 No. - 15802 of 2023, Imran Khan vs. State of U.P. and another

(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 of some other Court to which that
Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of
sub- section (1) any authority to which he is administratively subordinate may
order the withdrawal of the complaint and send a copy of such order to the
Court; and upon its receipt by the Court, no further proceedings shall be taken
on the complaint: Provided that no such withdrawal shall be ordered if the
trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue
or Criminal Court, and includes a tribunal constituted by or under a Central,
Provincial or State Act if declared by that Act to be a Court for the purposes of
this section.

(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed
to be subordinate to the Court to which appeals ordinarily lie from the
appealable decrees or sentences of such former Court, or in the case of a Civil
Court from whose decrees no appeal ordinarily lies, to the principal Court
having ordinary original civil jurisdiction within whose local jurisdiction such
Civil Court in situate: Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior
jurisdiction shall be the Court to which such Court shall be deemed to be
subordinate;

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 APPLICATION U/S 482 No. - 15802 of 2023, Imran Khan vs. State of U.P. and another

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall
be deemed to be subordinate to the Civil or Revenue Court according to the
nature of the case or proceeding in connection with which the offence is
alleged to have been committed.”

11. Offences under Section 195(1)(b)(i) deals with the category of offences
of false evidence and offences against public justice whereas Section 195(1)
(b)(ii) deals with the second category of offences relating to offences in
respect of a document produced or given in evidence in a proceeding in any
Court. Section 195 Cr.P.C. lays down a rule to be followed by the Court
which is to take cognizance of an offence specified therein but contains no
direction for the guidance of the court which desires to initiate prosecution
in respect of an offnece alleged to have been committed, whereas section
340 Cr.P.C. requires the Court desiring to put the law in motion to prefer a
complaint either suo motu or an application made to it in that behalf.

12. Section 340 Cr.P.C. reads as follows:

“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.”

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13. Section 340 CrPC makes it clear that a prosecution under this section can
be initiated only by the sanction of the court under whose proceedings an
offence referred to in Section 195(1)(b) has allegedly been committed. The
object of this section is to ascertain whether any offence affecting
administration of justice has been committed in relation to any document
produced or given in evidence in court during the time when the document
or evidence was in custodia legis and whether it is also expedient in the
interest of justice to take such action. The court shall not only consider
prima facie case but also see whether it is in or against public interest to
allow a criminal proceeding to be instituted.

14. The Apex Court in Narendra Kumar Srivastava vs. State of Bihar
and others2 in paragraph nos. 18, 19 and 20 has held as under:

“18. This Court in Chajoo Ram v. Radhey Shyam [Chajoo Ram v. Radhey
Shyam, (1971) 1 SCC 774 : 1971 SCC (Cri) 331] , held that the prosecution
under Section 195 CrPC could be initiated only by the sanction of the court
and only if the same appears to be deliberate and conscious. It emphatically
held as under: (SCC p. 779, para 7)

“7. The prosecution for perjury should be sanctioned by courts only

in those cases where the perjury appears to be deliberate and conscious
and the conviction is reasonably probable or likely. No doubt giving of
false evidence and filing false affidavits is an evil which must be
effectively curbed with a strong hand but to start prosecution for perjury
too readily and too frequently without due care and caution and on
inconclusive and doubtful material defeats its very purpose. Prosecution
should be ordered when it is considered expedient in the interests of
justice to punish the delinquent and not merely because there is some
inaccuracy in the statement which may be innocent or immaterial.
There must be prima facie case of deliberate falsehood on a matter of
substance and the court should be satisfied that there is reasonable
foundation for the charge.”

19. In Santokh Singh v. Izhar Hussain [Santokh Singh v. Izhar Hussain, (1973)
2 SCC 406 : 1973 SCC (Cri) 828] , this Court has held that every incorrect or
false statement does not make it incumbent on the court to order prosecution.
The court has to exercise judicial discretion in the light of all the relevant
circumstances when it determines the question of expediency. The court orders
prosecution in the larger interest of the administration of justice and not to

2. (2019) 3 SCC 318

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gratify the feelings of personal revenge or vindictiveness or to serve the ends

of a private party. 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 the court should direct prosecution.”

15. The Constitution Bench of the Apex Court in its judgment in Iqbal singh
Marwah vs. Meenakshi Marwah3 in paragraph nos. 23 and 24 has held as
under:

“23. In view of the language used in Section 340 CrPC the court is not bound
to make a complaint regarding commission of an offence referred to in Section
195(1)(b), as the section is conditioned by the words “court is of opinion that
it is expedient in the interests of justice”. This shows that such a course will be
adopted only if the interest of justice requires and not in every case. Before
filing of the complaint, the court may hold a preliminary enquiry and record a
finding to the effect that it is expedient in the interests of justice that enquiry
should be made into any of the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court by weighing not the
magnitude of injury suffered by the person affected by such forgery or forged
document, but having regard to the effect or impact, such commission of
offence has upon administration of justice. It is possible that such forged
document or forgery may cause a very serious or substantial injury to a
person in the sense that it may deprive him of a very valuable property or
status or the like, but such document may be just a piece of evidence produced
or given in evidence in court, where voluminous evidence may have been
adduced and the effect of such piece of evidence on the broad concept of
administration of justice may be minimal. In such circumstances, the court
may not consider it expedient in the interest of justice to make a complaint…

24. There is another consideration which has to be kept in mind. Sub-section

(1) of Section 340 CrPC contemplates holding of a preliminary enquiry.
Normally, a direction for filing of a complaint is not made during the
pendency of the proceeding before the court and this is done at the stage
when the proceeding is concluded and the final judgment is rendered.
Section 341 provides for an appeal against an order directing filing of the
complaint. The hearing and ultimate decision of the appeal is bound to take
time. Section 343(2) confers a discretion upon a court trying the complaint
to adjourn the hearing of the case if it is brought to its notice that an appeal
is pending against the decision arrived at in the judicial proceeding out of
which the matter has arisen...”

15. In the light of above discussed law propounded by the Apex Court
relating to taking proceedings under Section 340 Cr.P.C. read with Section

3. (2005) 4 SCC 370

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 APPLICATION U/S 482 No. - 15802 of 2023, Imran Khan vs. State of U.P. and another

195 Cr.P.C., this Court finds that this Court passed its last order on
20.02.2020 in Application U/S 482 No. 2655 of 2020 precluding coercive
measures against accused in related Criminal Case No. 10063 of 2016, State
vs. Imran and others. As per the law propounded by the Apex Court in the
Case of Asian Resurfacing of Road Agency Private Limited (Supra) the
aforesaid interim order would automatically deem to have been vacated after
lapse of six months from 20.02.2020 i.e. on 20.08.2020. Thus, the informant
Ahtesham was justified in submitting application before the Trial Court on
14.10.2020 alleging that since the above-mentioned interim stay has not
been extended after six months by passing a fresh order, the Court may take
coercive measures against the accused for ensuring their presence in the trial
of the Criminal Case No. 10063 of 2016. Thus, there was no legal ground or
justification in the misc. application of Imran Khan, under Section 340
Cr.P.C. requesting the Court to take criminal proceedings against the
informant or for filing application with false averments made therein for
issuing coercive measures against him.

16. In view of the above discussions, this Court is of the opinion that there is
no ground to interfere or to quash the impugned order dated 08.04.2022
passed by the Additional Chief Judicial Magistrate, Court No. 2, Budaun in
Misc. Case No. 1664 of 2020, Imran vs. Ahtesham Miyan, under Section
340 Cr.P.C., Police Station Kotwali, District Budaun or the Appellate Court
as mentioned above in exercise of this Court’s power u/s 482 Cr.P.C.

17. This application is dismissed, accordingly.

Order Date :- 07.08.2023

Brijesh Maurya

Digitally signed by :-
BRIJESH KUMAR
High Court of Judicature at Allahabad