1. The present appeal by Mohammad Ibrahim is directed against the order dated 20th February, 1991 passed by Shri R.D. Kabra, Additional District Judge, Burhanpur, district Khandwa under section 341 of Cr.P.C. The appeal is filed against 6 persons, namely, Imdadulla, Akhtar Hussain Asif, Saiyad Jafar Ali, Abdul Majid, Nairn Akhtar and Mohd. Ismail.

2. The facts of the case as are relevant for the purpose of present appeal are as :-

(a) That warrant of possession over immovable property was issued against the aforesaid respondents Nos. 1 to 6 on 1.2.1991 by Additional District Judge, Burhanpur in T.C. Execution Case No. 116/2/88. In the said case the respondents made an application on 11.2.1991 through a lawyer Shri Bipat, which was accompanied with an affidavit filed by Shri Abdul Majid, the respondent No.4 in the present appeal, and this affidavit is the foundation for action under section 340, Cr.P.C.

3. Heard Shri Fakhruddin, Senior Advocate assisted by Shri Rashid Siddiqui, Advocate for the appellant and Shri Z.M. Shah, learned counsel for the respondents Nos. 1, 4 and 6. Rest of the respondents are represented but their counsel are not present in Court though the case is taken up in the revised list after waiting for a long time.

4. Learned counsel for the appellant submitted that Shri Abdul Majid filed a false affidavit before the aforesaid Court giving a declaration that against the order of the said Court dated 1.2.1991 issuing warrant of possession over immovable property a revision was filed before the High Court of Madhya Pradesh at Jabalpur on 6.2.1991. In this connection Para 1 of the affidavit, which deals with the matter and is relied on is as extracted below :-

**1- ;g fd mDr izdj.k esa vukosnd ds fo#) fnukad 1-2-91 dks py vpy laifÙk ds dCts ds okjaV dk vkns"k gqvk gS vuksond us mDr vkns"k ls vlarq'V ,oe~ ihfM+r gksdj ,d fuxjkuh Jheku mPp U;k;ky; tcyiqj e/;izns"k ds le{k fnukad 6-2-91 dks izLrqr dhA**

Further in paragraph 2 of the said affidavit it has been stated by the deponent of the affidavit that he on 11.2.91, at 2.00 P.M. received a telephonic message that in the aforesaid revision stay order has been obtained. Paragraph 2 of the said affidavit is as extracted below :-

**2- ;g fd eq>s vkt fnukad 11-2-91 dks nks cts VsyhQksu }kjk Kkr gqvk gS fd mDr fuxjkuh esa LFkxu vkns"k izkIr gqvk gSA**

On the basis of statements made in aforesaid two paragraphs it was prayed that the proceedings on the basis of warrant of possession be kept in abeyance till 14.2.91 and the same deserves to be quashed. So far as the aforesaid paragraphs are concerned, they are based on personal knowledge. The declaration in the aforesaid affidavit was treated to be true by the Court and on the basis whereof the Court adjourned the proceedings till 13.2.91.

5. Learned counsel for the appellant submitted that it is a case of false declaration made by the respondent No.4 before the Court of justice. According to the learned counsel for the appellant, declaration made was false and the deponent of the affidavit was knowing the same to be false, filed a false affidavit and according to him case was covered under section 195, I.P.C.

6. Perused the order under appeal dated 20.2.1991.

7. It appears that the Court did not apply its mind to the prayer of the appellant for action under section 340, Cr.P.C. and did not form any opinion as to whether any case for action u/s. 340, Cr.P.C. has been made out by the appellant or not. The Court observed that the relief which the appellant has sought therein could be sought by him by means of separate proceedings by initiating action against the person concerned and on this basis application was rejected. Learned counsel for the appellant submitted that the Court has not applied its mind and without considering the legal aspects, rejected the application. Section 195 (1) (b), Cr.P.C. provides that in respect of such offences as mentioned therein no Court shall take cognizance except on the complaint in writi