Anil Kajora v. Kiran Devi and Anr.

1. This petition under Section 115 of the CPC seeks setting aside of an order dated 3rd March, 2014 passed by the learned Additional District Judge in a proceeding under Section 340 Cr. P.C. read with Section 195 of Cr. P.C. The proceeding related to an offence under Sections 193, 196, 200, 420, 467, 468, 471 and 344 of Indian Penal Code. The case under Section 340 Cr. P.C. pertained to commission of perjury by the respondent. The Trial Court noted that the arguments and statement of the applicant had warranted 2014:DHC:4829 the proceedings under Section 340 Cr. P.C. The Court was of the view that non-applicant No. 2, who is 85 years old had been falsely implicated in the application and had been subjected to harassment hence the application was dismissed with cost of Rs.5,000/-.

2. The learned counsel for the petitioner relies upon the judgment of the Supreme Court in Devendra Kishan Lal Dagalia v. Dwarkesh Diamonds Pvt. Ltd. & Ors. 2014 (1) JCC (NI) 20 to contend that imposition of cost of Rs.5,000/- was not warranted since the summons to the petitioner was on account of the Cr.P.C. itself. The aforesaid judgment relied upon by the learned counsel for the petitioner dealt with section 204 of the Cr.P.C. which relates to examination of a plaint, and if the Magistrate is of the opinion that there is sufficient ground for proceeding with the case, he shall summon the attendance of the accused in a summons-case. Once the decision is taken and summons are issued in the absence of power to review the same including the inherent power to do so, the remedy would lie before the High Court under Section 482 Cr. P.C. or under Article 227 of the Constitution of India and not before the Magistrate. He submits that the Trial Court could not have passed the impugned order.

3. This Court notices that the present petition has been filed not under Article 227 of the Constitution of India, but under Section 115 of the CPC. It emanates from a proceeding under Section 340 Cr.P.C. and therefore, proper remedy would lie elsewhere and not under the CPC. This Court is of the view that provisions of Section 115 of the CPC are not attracted since the order was passed under Section 340 Cr. P.C. Remedy, as may be against the said order, would have to be pursued under the appropriate provisions of the law. The petition is accordingly dismissed as being without merit.

NAJMI WAZIRI, J. SEPTEMBER 19, 2014