[S.340 CrPC] Court Must Be Satisfied That Party Intentionally Committed An Offence Before Recommending Action For Perjury: J&K High Court

Highlighting the words “it is expedient in the interest of justice that an enquiry should be made” appearing in section 340 CrPC Justice Javed Iqbal Wani explained,

“Unless it is expedient in the interest of justice, in the opinion of a court that an enquiry should be made or a complaint should be directed to be filed, same cannot be done as otherwise time of the court which has been usefully devoted for dispensation of justice will be wasted on such an enquiries”.

These observations came in response to a petition filed by petitioner Farooq Ahmad Khan, seeking to set aside an order of the 1st Additional Sessions Judge, Srinagar, regarding a complaint by Respondent Mehbooba Khan under the Protection of Women from Domestic Violence Act, 2010.

Background:

The matter arose when Mehbooba Khan filed a complaint under Section 12 of the Protection of Women from Domestic Violence Act, 2010 seeking various reliefs including a protection order, maintenance of Rs. 90,000 per month, and a suitable residence. During the proceedings, the respondent, filed an application under Section 340 CrPC, alleging that Mehbooba had committed perjury by filing a false affidavit in support of her complaint.

The trial court dismissed Farooq's application reasoning that pursuing perjury charges would delay the main case under the Domestic Violence Act. Dissatisfied, Khan appealed to the 1st Additional Sessions Judge, Srinagar, who ruled that the trial court should have deferred the perjury consideration until the final disposal of the main case.

Aggrieved Farooq represented by Mr. M. Y. Bhat and Mr. Sajid Ahmad Bhat, argued that the appellate court erred in its decision, asserting that the trial court should have taken immediate action on the perjury allegation. Conversely, Mehbooba represented by Mr. Raja Rathore and Mr. Shah Rasool, contended that the application under Section 340 CrPC was a tactical move by Farooq to delay the domestic violence proceedings and intimidate the complainant.

Court's Observations:

Highlighting the importance of Section 340 CrPC which allows courts to initiate inquiries into offences like perjury committed during court proceedings Justice Wani emphasized that this power must be exercised with "great care and caution."

Acknowledging that sections 340 and 195 of the CrPC are designed to prevent frivolous or vindictive prosecutions the court stressed that action under Section 340 CrPC should be taken only when it is "expedient in the interest of justice" and not based on mere allegations.

The Court noted that Farooq waited over five years before invoking Section 340 CrPC. This delay, coupled with the fact that the application coincided with the dismissal of his own application to dismiss the DV Act complaint, led the Court to believe his motives were not bona fide.

“Although under section 340 CrPC no time limit has been fixed for initiating proceedings, but the delay of more than 05 years in the matter lost by the petitioner herein in invoking the provisions of section 340 CrPC cannot be overlooked or ignored”, Justice Wani opined.

Referencing "Joginder Nath vs. Sham Lal, 1976" the court stressed that no court can allow the initiation or continuation of criminal proceedings against a citizen which has not been brought bona fide as the criminal courts are not meant to be used as a tool for satisfying for private grudge of a litigant.

Given this context, the court dismissed the petition and the original application under Section 340 CrPC, stating that these actions were aimed at frustrating the domestic violence proceedings.

Recognizing the petitioner's conduct, Justice Wani also imposed costs of Rs. 50,000 on Farooq payable to Mehbooba within eight weeks.

Case Title: Farooq Ahmad Khan Vs Mahbooba Khan

Citation: 2024 LiveLaw (JKL) 157

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