Proceedings under Section 340 Cr.P.C. should only be initiated in cases of deliberate and conscious perjury, with a reasonable probability of conviction.

JUDGMENT

Gurvinder Singh Gill, J. - The petitioner has approached this Court challenging order dated 10.9.2019, passed by learned Principal Judge, Family Court, Narnaul, wherein an application filed by the petitioner-husband under Section 340 Cr.PC. has been dismissed.

2. The petitioner's wife i.e. respondent No.1- Anju had filed an application under Section 125 Cr.P.C. against the petitioner seeking grant of maintenance. The petitioner moved an application under Section 340 Cr.P.C. read with Section 195 Cr.P.C. for initiating proceedings against the respondent-Anju for having perjured the Court. The petitioner alleged that respondent No.1 had made certain mis-representations to the effect that upon an ultrasound conducted upon her, she was found to be carrying a male embryo, which was got aborted whereas in fact no such sex determination could have been possible when the pregnancy was barely 7 weeks and 6 days old. The Trial Court considered the application and dismissed the same vide impugned order dated 10.9.2019, whereby a cost of Rs. 10,000/- was also imposed upon the petitioner which was directed to be paid to his minor child.

3. Learned counsel for the petitioner has submitted that the Trial Court did not appreciate the matter in the correct perspective and that contentions of the respondent regarding determination of sex when the embryo was 7 weeks and 6 days old are patently false. The learned counsel has further submitted that in fact the Trial Court also fell in error in nominating Sh. R.S.Nain, Advocate as amicus curiae when in fact said Advocate had been representing the respondent-wife in proceedings under Section 125 Cr.P.C. and thus could not be said to be an independent Advocate.

4. I have considered rival submissions addressed before this Court. Before proceeding further, it is apposite to refer to the order vide which Sh. R.S.Nain, Senior Advocate was appointed as amicus curiae to assist the Court. Order dated 10.9.2019 is reproduced below for the sake of ready reference:

"Today case is fixed for production of remaining documents, if any, otherwise for arguments on question of initiating action under Section 340 Cr.P.C. However, before hearing arguments in this petition, it would be appropriate to take assistance of senior counsel. Shri R.S.Nain, Advocate as Amicus curie and so he is appointed Amicus curie and will assist this Court while deciding application under Section 340 Cr.P.C. Applicant Praveen Kumar is ready to argue and Amicus curie is also ready to assist this Court. Applicant Praveen Kumar has advanced lengthy arguments for initiating proceedings against his wife and her relatives under Section 125 Cr.P.C. Learned Amicus curie has also assisted this Court by raising contention relating to petition under Section 125 Cr.P.C. filed by Anju etc. Let, file be now put up after lunch for pronouncement of order."

5. A perusal of the aforesaid order shows that the Trial Court has suo motu sought the assistance of a senior counsel for the purpose of decision of the application under Section 340 Cr.P.C. The fact that the said counsel happens to be representing the wife in proceedings under Section 125 Cr.P.C. would not debar the Court from seeking inputs from a senior Advocate on questions of law. In any case, a perusal of the impugned order does not reflect any such fact which the said counsel may have misrepresented or had stated anything to prejudice the mind of the Court against the petitioner. The amicus had been appointed by the Court for its assistance and as such this Court does not find any infirmity in appointing Sh. R.S.Nain, Senior Advocate, as amicus curiae for the purpose of assistance to the Court in decision of the application under Section 340 Cr.P.C.

6. The facts allegedly misrepresented by respondent No.1, as per case of the petitioner, have been noticed by the Trial Court as follows:

"Firstly: he and his family members got sex determination test for knowing fetus in womb either female or