Full Judgment
1. Admitted. Arguments heard. This appeal is directed against the order dated 24-12-1983 of Shri K. P. Verma, Addl. District Judge; Delhi whereby he directed the lodging of a criminal complaint against the appellants for the offences alleged to have been committed by them under Section 191 read with S. 193, Penal Code, for their having pleaded under ground No. 4(13) of the appeal as follows :-
'that respondent 2 is not party in the proceedings ......'
2. The appellants supported the aforesaid ground of their appeal even by means of an affidavit dated 31-10-1981 deposed to by the appellant K. K. Khanna on behalf of the appellants. Respondent 2 was a party in the insolvency proceedings and had subsequently on his own application been substituted as the petitioner-creditor in those proceedings.
3. The perusal of the impugned order shows that it was nowhere opined, or recorded as a fact that the lodging of the complaint against the appellants was expedient in the interest of justice as required under Section 340. Criminal P.C., 1973, (in short the Code). This requirement of law was of fundamental importance and the omission in that regard vitiates the impugned order. Even though prosecution for perjury may be possible but S. 340 of the Code does not permit complaints to be lodged in all those cases and lodging the complaint is permissible only when the court making the complaint is of the positive view that the lodging of the complaint would be expedient in the interest of justice. This point has been dealt with in a number of authorities. Santokh Singh v. Izhar Hussain. : 1973 CriLJ1176 has made the following observations :-
'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 gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party ....'
4. Section 476 was the earlier corresponding section in the old Criminal Procedure Code of 1908 Chatur Jethaji In re AIR 1932 Bom 551 : (1933 Cri LJ 33 while dealing with that provision of law observed as follows :-
'..... The important words in that section which must be noted are that the court must be of opinion that it is expedient in the interests of justice that an enquiry should be made. These words, in my opinion, are the key-note to the section ....'.
5. Delhi High Court also in Shri Krishan Dev v. Lal Chand held that the important question which a court ordering prosecution of a party to a proceeding before it is always required to keep in view whether it is expedient in the interest of justice that such action should be taken. To the same effect is the Lala Nand Lal v. Emperor AIR 1937 Lah 867 which has further held that it is necessary for the court to find that the conviction of the witness was practically certain before it could direct its prosecution. The perusal of the impugned order shows that Mr. Verma, Addl. District Judge, was not himself quite sure whether the prosecution of the appellants would certainly and necessarily end in conviction. The following observations from the impugned order are relevant and apposite upon this point' :-
'However it is for the criminal court to find as to whether any offence is made out against the appellants or not. This court is only to see as to whether a prima facie case is made out or not. Thus, I find that a prima facie case is made out against the appellants, for lodging a complaint .....'
6. Thus, in the impugned order the learned Addl. District Judge has failed to record that the lodging of the complaint against the appellants would be expedient in the interest of justice and that he was quite certain about the conviction of the appellants therein. The absence of this plain finding vitiates the impugned order.
7. The contention of the learned counsel representing respondent 2 is that the aforesaid plain finding ought be taken as necessarily implied in the impugned order but his contention cannot be accepted.
8. The learned Addl. District Judge also remarked in the order under appeal that the appellants would be deemed to know the fact that vide Order dated 7-2-1980 respondent 2 was substituted as a petitioner in the insolvency petition under Section 9 read with S. 13 of the Provincial Insolvency Act and further that before the filing of the appeal it was obligatory upon the the appellants to ascertain as to whether respondent 2 was actually a party to the insolvency proceedings or not and for that purpose they could have safely inspected the records of the Insolvency Court and without ascertaining all those facts the appellants should not have represented to this court that respondent 2 was not a party to insolvency proceedings. From the aforesaid deeming and expecting observations it could not be said that the alleged falsehood resorted to by the appellants before the learned Addl. District Judge was intentional on their part.
9. No other point was urged and in view of what has been discussed above the appeal succeeds and accepting the same the impugned order under appeal is set aside.
10. Appeal allowed.