ORDER
M.S.A. Siddiqui, J.
1. The appellant was married to the respondent No.1 on 25.9.1977. Sometime after marriage, respondent No.1 was transferred to Nagaland. Unfortunately, the appellant could not accompany him to Nagaland as a result whereof some dark, portentous cloud started hovering between her and the happiness she had so joyfully anticipated. A Naga woman in the shape of a serpent entered into the paradise of her happiness and her husband (respondent No.1) had fallen. The said Naga woman had stolen away his affection, and by the magical sorcery of the seducer’s spell, had transformed his former love into settled hatred and aversion. Respondent No.1, whom she had left so kind, so full of affection, on his posting at Shimla, greeted her with cold indifference and even denied her those matrimonial privileges, which as a legally wedded wife, were her of right to demand. Dispirited and discouraged at the failure to regain her husband’s affection, her vision of happiness dissipated and she approached the Army Authorities for maintenance, which was granted. Overpowered by the fascinations of his concubine, respondent No.1 filed a petition against the appellant for dissolution of marriage. By the order dated 20.7.1988 passed by the Supreme Court, the said petition was transferred from Amritsar to Delhi. On 1.12.1988, the appellant filed an application under Section 24 of the Hindu Marriage Act claiming for maintenance pendente lite on the ground that she was having no independent source of income or means to maintain herself and her child. Believing the affidavit filed by the appellant, the learned Addl. District Judge granted interim maintenance to the appellant at Rs.1,000/- per month for herself and Rs. 300/- per month for her minor child vide orders dated 18.3.1989. Thereafter, the appellant filed an application before the Supreme Court for transfer of the defamation case pending against her before the Danapur Court. In that application, she stated that she was employed as a teacher in Badal Academy, Faridkot (Punjab). Taking advantage of the averments made in the said application, the respondent No.1, on 18.10.1995, filed an application under Section 151 CPC for modification of the maintenance order dated 18.3.1989. By the order dated 22.7.1996, learned ADJ allowed the application of the respondent No.1 and vacated the maintenance order dated 18.3.1989. After passing of the modification order dated 22.7.1996, respondent No.1 filed an application under Section 340 Cr.P.C. for making an enquiry into the offences alleged to have been committed by the appellant under sections 193/199 IPC.
2. The application was opposed by the appellant. The learned Addl. District Judge took the view that it was expedient to make a criminal complaint against the appellant as the materials available make out a prima facie case under Sections 193/199 IPC against her. He, therefore, allowed the petition under Section 340 Cr.P.C. filed by the respondent No.1 and directed the appellant’s prosecution for perjury vide orders dated 22.8.1997. Aggrieved thereby, the appellant has come up in appeal before this court.
3. It is undisputed that in the divorce proceedings initiated by the respondent No.1. the appellant has filed an application under Section 24 of the Hindu Marriage Act supported by her affidavit claiming interim maintenance on the ground that she was having no independent source of income or means to maintain her and her child and that interim maintenance was granted to her and her child on the basis of the said averments made in the application. It is also undisputed that in an application filed by the appellant before the Supreme Court for transfer of defamation case filed by the respondent No.1, she had stated that she was employed as teacher in Badal Academy, Faridkot, Punjab. In view of the said admissions it cannot be doubted that in the divorce proceedings, the appellant succeeded in obtaining a maintenance order on the ground of a false statement that she
was having no independent source of income or means to maintain her and her child. Learned counsel for the respondent No.1 contended that the expediency for prosecuting the appellant for the offence of per jury was justified as the appellant deliberately utilised the process of Court for the purpose of getting an order of maintenance on the basis of incorrect and false statement.
4. A bare reading of Section 340 Cr.P.C. would make it clear that power thereunder can be exercised by the Court either suo moto or upon the application made to it in that behalf. Before invoking the provisions of Section 340 of the Code, the Court has to form an opinion that it is expedient in the interest of justice that an enquiry be made into any offence referred to in clause (b) of sub-section (1) of Section 195. In Patel Laljibhai Somabhai Vs. The State of Gujarat , the Apex Court has
analysed the purpose of enacting Section 195(1)(b) and (c) and Section 476 of the Code of Criminal Procedure, as under :-
“The underlying purpose of enacting Section 195(1)(b) and (c) and Section 476 seems to be to control the temptation on the part of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents. These offences have been selected for the court’s control because of their direct impact on the judicial process. It is the judicial process, in other words the administration of public justice, which is the direct and immediate object or victim of those offences and it is only by misleading the courts and thereby perverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised. As the purity of the proceedings of court is directly sullied by the crime, the Court is considered to be the only party entitled to consider the desirability of complaining against the guilty party. The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint. But such party is deprived of the general right recognized by section 190 Cr.P.C of the aggrieved parties, directly initiating the criminal proceedings. The offences about which the court alone, to the exclusion of the aggrieved private parties is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that Court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party.”
5. The aforesaid observations of their Lordships will show that the provisions of Section 340 of the Code are intended to provide safeguard against criminal prosecution on insufficient grounds filed against a party by his opponent motivated by a revengeful desire to harass or spite the opponent. It is not the law that every false statement should attract the provision of Section 340 of the Code. In Thomman Vs. IInd Addl. Sessions Judge, Ernakulam and others (1994 (Crl.L.J.) 48) it was observed by Hon’ble Thomas, J. that “If the court is to notice every falsehood that is sworn to by parties in courts there would be very little time for courts for any serious work other than directing prosecution for perjury. Again the edge of such weapon would become blunted by indiscriminate use. The gravity of
the false statement, the circumstances under which such statement is made, the object of making such statement and its tendency to impede and impair the normal flow of the course of justice are matters for consideration when the court decides on the propriety of instituting a complaint for per jury. ” In the context reference may also be made to the following observations of the Supreme Court in Santokh Singh Vs. Izhar Hussain and another .
“…….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. 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.”
6. Let us consider the circumstances under which the petitioner has filed the application under Section 24 of the Hindu Marriage Act in the divorce proceedings initiated by her husband (respondent No.1). As noticed earlier, during his posting in Nagaland, the respondent No.1 had kept a Naga Woman as his concubine. Thereafter, respondent No.1 initiated divorce proceedings against the appellant. Naturally, the petitioner must have been hurt by the treacherous conduct of her husband (respondent No.1) as he had betrayed her to ruin. The memory of her desolated home and departed joy must have, instinctively re-echoed the percept of Almighty God that “the man who committed adultery with the neighbour’s wife, the adulterer shall surely be put to death.” What must have been the feeling of such a wife at the discovery that her husband could have been guilty of such imprudence of conduct as to make her life miserable. She was not only forever deprived of the comfort and society of the husband she so adored, that not only her innocent child robbed of his father’s affection, but she herself was placed in a situation too dreadful to be endured. It was a torture that no words can communicate, no language can depict to others. Thus, there was a war between two spouses, which impelled the appellant to claim maintenance from her husband (respondent No.1) in the divorce proceedings initiated against her. It was a painful circumstance in connection with the wrong committed by the respondent No.1, which might have actuated the appellant to make a false statement in the application under Section 24 of the Hindu Marriage Act. It has to be borne in mind that power under Section 340 of the Code is a drastic power, which should be used to curb the evil of perjury and to
keep the flow of judicial proceedings unsullied and pure. But this power cannot be permitted to be utilised by a party to serve his own ends or to satisfy his own urge for revenge, as seems to have been done in the present case. It needs to be highlighted that while vacating the maintenance order dated 22.7.1996, learned Addl. District Judge did take notice of the fact that said order had been obtained by the appellant on the basis of false statement made by her, yet he did not proceed against the appellant under Section 340 of the Code. On the contrary, after the passing of the order dated 22.7.1996, respondent No.1 filed an application under Section 340 of the Code seeking direction to file a criminal complaint against the appellant. Viewing the circumstances mentioned above, it seems that the object of filing the said application was not so much to vindicate the purity of the administration of justice but to see that the appellant who had been contesting the divorce proceedings be punished under the provisions of penal law. Once it is held that the motivation behind the application under section 340 of the Code was to gratify his feelings of revenge, then automatically a finding on the issue of expediency must be recorded against the respondent No.1. It is also salutary to note that judicial process should not be allowed to be used as an instrument of oppression and needless harassment. At the stage of invoking the provision of Section 340 of the Code, the Court should be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before directing prosecution for perjury lest it would be an instrument in the hands of a person as vendetta to harass his opponents. Vindication of majesty of justice and maintenance of law and order and social stability in the society are the prime objects of criminal justice but it should not be the means to wreak personal vengeance. In this context, I may usefully except the following observations of his Lordship M.M. Punchi,. J. (as he then was) in the case of Jaswinder Singh Vs. Smt. Paramjit Kaur (1986 Cri.L.J. 1398) :-
“…….It is a settled principle of law that courts never become tools at the hands of the parties to satisfy private vendetta or to take up cudgels on behalf of one party and punish the other. The primary object to take proceedings under Section 340 of the Code of Criminal Procedure, in instituting a complaint for giving false evidence, is to curb the evil of perjury and to keep the flow of proceedings in courts unsullied and pure. It is only in a rare case, when the Court comes to the conclusion that if the complaint is filed conviction is more or less a certainty, that it chooses to become a complainant. In such like contentious issues, when the wife can again indulge in proving that the husband was wrong and she was right, it is not expedient for this Court to enter into the fact and become a complainant at the behest of the husband-petitioner. Thus, I am of the considered view that it is not expedient to pursue the matter any further at the instance of the parties.”
7. For the reasons discussed above, I do not think that this is a proper case which can be regarded as expedient, in the interest of justice, to proceed against the appellant under Section 340 Cr. P.C. In the result, the appeal is allowed and the impugned order dated 22.8.1997 is set aside.