under Section 340 CrPC – (i) materials produced before the
court must make out a prima facie case for a complaint for the
purpose of inquiry into an offence referred to in clause (b)(i) of
sub-Section (1) of Section 195 of the CrPC and (ii) it is
expedient in the interests of justice that an inquiry should be
made into the alleged offence.
7. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always
sufficient to justify a prosecution under Sections 199 and 200 of
the Indian Penal Code (45 of 1860) (hereinafter referred to as
“the IPC”); but it must be shown that the defendant has
intentionally given a false statement at any stage of the judicial
proceedings or fabricated false evidence for the purpose of
using the same at any stage of the judicial proceedings. Even
after the above position has emerged also, still the court has to
form an opinion that it is expedient in the interests of justice to
initiate an inquiry into the offences of false evidence and
offences against public justice and more specifically referred in
Section 340(1) of the CrPC, having regard to the overall factual
matrix as well as the probable consequences of such a
prosecution. (See K.T.M.S. Mohd. and Another v. Union of
India(1992) 3 SCC 178).
The court must be satisfied that such an inquiry is
required in the interests of justice and appropriate in the facts
of the case.
8. In the process of formation of opinion by the court that
it is expedient in the interests of justice that an inquiry should
be made into, the requirement should only be to have a prima
facie satisfaction of the offence which appears to have been
committed. It is open to the court to hold a preliminary inquiry
though it is not mandatory. In case, the court is otherwise in a
position to form such an opinion, that it appears to the court
that an offence as referred to under Section 340 of the CrPC
has been committed, the court may dispense with the
preliminary inquiry. Even after forming an opinion as to the
offence which appears to have been committed also, it is not
mandatory that a complaint should be filed as a matter of
course. (See Pritish v. State of Maharashtra and Others (2002) 1 SCC 253).
9. In Iqbal Singh Marwah and Another v. Meenakshi
Marwah and another (2005) 4 SCC 370
, a Constitution Bench of this Court has
gone into the scope of Section 340 of the CrPC. Paragraph-23
deals with the relevant consideration:
“23. In view of the language used in Section 340
CrPC the court is not bound to make a complaint
regarding commission of an offence referred to in
Section 195(1)(b), as the section is conditioned
by the words “court is of opinion that it is
expedient in the interests of justice”. This shows
that such a course will be adopted only if the
interest of justice requires and not in every case.
Before filing of the complaint, the court may hold
a preliminary enquiry and record a finding to the
effect that it is expedient in the interests of
justice that enquiry should be made into any of
the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court
by weighing not the magnitude of injury suffered
by the person affected by such forgery or forged
document, but having regard to the effect or
impact, such commission of offence has upon
administration of justice. It is possible that such
forged document or forgery may cause a very
serious or substantial injury to a person in the
sense that it may deprive him of a very valuable
property or status or the like, but such document
may be just a piece of evidence produced or
given in evidence in court, where voluminous
evidence may have been adduced and the effect
of such piece of evidence on the broad concept
of administration of justice may be minimal. In
such circumstances, the court may not consider
it expedient in the interest of justice to make a
complaint. …”
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11120 OF 2016
(Arising out of S.L.P.(C) No. 13749 of 2016)
AMARSANG NATHAJI
V
HARDIK HARSHADBHAI PATEL
Dated:November 23, 2016.
Citation:(2017) 1 SCC113,2017 CRLJ758
2. The scope of this appeal is limited to the challenge on
legality of the proceedings under Section 340 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the
Code”) initiated by the High Court as part of the impugned
judgment dated 12th/13th April, 2016 in Appeal from Order No.
489 of 2013 on the file of the High Court of Gujarat. The appeal
before the High Court arose from an order passed by the Senior
Civil Judge, Ahmedabad declining to grant an interim injunction,
in Civil Suit No. 28 of 2012. Having extensively referred to the
materials on record, the High Court after elaborately
considering the arguments, by a detailed judgment, dismissed
the appeal, confirming the order passed by the trial court. The
plaintiff/respondent had also approached this Court by way of a
Special Leave Petition (Civil) No. 14478 of 2016. The said
Special Leave Petition has been dismissed on 15.11.2016 as not
pressed on the submission that the parties have reached an
amicable settlement on the issue.
3. The High Court, on account of the contradictory stand
taken by the appellant herein who was the first respondent
before the High Court (Defendant no.1 in the Suit), took the
view that the conduct of the appellant has affected the
administration of justice, and therefore, it was expedient in the
interests of justice to file a complaint against the appellant
under Section 340 of the Code.
4. It is necessary to refer to the relevant paragraphs in the
judgment where the High Court has dealt with the issue:
“19. Before concluding, the Court deems it
necessary to take serious view on the conduct of
the respondent No.1 – defendant No.1, who either
for an extraneous consideration, or to save his
skin, has taken contradictory stands in the judicial
proceedings by filing one written statement at
Exh. 20 supporting the case of the present
appellant – plaintiff and subsequently by filing the
application at Exh. 43, and other documents in the
nature of affidavits supporting the case of the
respondents No.3 to 5. It appears that the
respondent No.1 has tried to change his version
after the impugned order was passed by the trial
Court, just to suit his purpose, misusing and
abusing the process of law. The Court is
constrained to observe that due to sky-rocketing
escalation in the prices of the lands in and around
the urban areas, the execution of such illegal
agreements at the instance of the
owners/power-of-attorney holders/banakhat
holders has become rampant, and that more often
than not, the proceedings of Courts are being
misused and abused to a large extent by such
unscrupulous elements. In many cases, innocent
persons are being cheated and defrauded by such
elements, in the quest of earning easy money,
dragging such innocent persons to litigations
which go on for years together.
20. In the instant case also, the respondent No.1
– defendant No.1 after requesting the trial Court to
reopen his right to file written statement, and after
filing written statement at Exh.20 along with the
affidavit and declaration supporting the case of
the appellant – plaintiff, had filed an application at
Exh. 43, requesting the trial Court to de-exhibit the
earlier written statement at Exh. 20 by stating,
inter alia, that the said written statement was filed
by the Advocate Ms. Trupti Patel on his behalf
without his knowledge. The said Application at
Exh. 43 was rejected by the trial Court, which
order has remained unchallenged. All these
documents namely the written statement at Exh.
20 with affidavit and declaration and the other
written statement and the affidavit filed before the
trial Court have also been produced by the learned
Counsels for the parties in the present proceedings
and have been relied upon by them, to support
their respective contentions. From the said
documents on record, it clearly transpires that the
respondent No.1 – defendant No.1 had sought to
produce two sets of documents contradictory to
each other, in relation to the proceedings in this
Court, and had made the declarations and
statements which he knew were false, for being
used as evidence in the judicial proceedings. The
respondent No.1 has neither denied his signatures
on the written statement Exh. 20 and the affidavit
filed along therewith, nor has taken any action
against the advocate Ms. Trupti Patel, who had
allegedly filed the said written statement on his
behalf. The second written statement was sought
to be filed along with the application Exh. 43 after
the impugned order was passed by the trial Court,
and when the present Appeal from Order was
pending before this Court. The Court, therefore,
has reason to believe that the respondent No.1
has deliberately and consciously tried to take
Courts for a ride and filed the documents and
declarations making false statements which could
be read as evidence in the judicial proceedings,
and thereby has prima facie acted in the manner
which would affect the administration of justice,
tantamounting to the offences as contemplated in
Section 199 and Section 200 of IPC, and as
referred in Section 195(1)(b)(i) of Cr.P.C. As stated
herein above, nowadays such illegal transactions
and agreements are rampant, and the process of
law is being misused and abused by the
unscrupulous elements, which ultimately hampers
the administration of justice. The Court, therefore,
is of the opinion that it is expedient in the interest
of justice to file complaint against the respondent
No.1 in exercise of the powers conferred under
Section 340 of Cr.P.C.
21. In view of the above, the Appeal from Order
is dismissed. The Registrar (Judicial), Gujarat High
Court, Ahmedabad is directed to make complaint
against the respondent No.1 in view of the above
findings recorded by the Court for the offence
under Section 199 and Section 200 of IPC before
the competent Court of Magistrate, having
jurisdiction, who shall, after following the
procedure as contemplated in Section 343 of
Cr.P.C., deal with the case in accordance with law.”
5. It is the main contention of the learned counsel for the
appellant that while passing the order, as extracted above, the
High Court has not followed the procedure contemplated under
Section 340(1) of the CrPC. Section 340(1) of the CrPC reads as
follows:
“340. Procedure in cases mentioned in section
195.-(1) When, upon an application made to it in this
behalf or otherwise, any Court is of opinion that it is
expedient in the interests of justice that an inquiry
should be made into any offence referred to in clause
(b) of sub-section (1) of section 195, which appears
to have been committed in or in relation to a
proceeding in that Court or, as the case may be, in
respect of a document produced or given in evidence
in a proceeding in that Court, such Court may, after
such preliminary inquiry, if any, as it thinks
necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class
having jurisdiction;
(d) take sufficient security for the appearance
of the accused before such Magistrate, or if
the alleged offence is non-bailable and the
Court thinks it necessary so to do, send the
accused in custody to such Magistrate; and
(e) bind over any person to appear and give
evidence before such Magistrate.”
6. There are two pre conditions for initiating proceedings
under Section 340 CrPC – (i) materials produced before the
court must make out a prima facie case for a complaint for the
purpose of inquiry into an offence referred to in clause (b)(i) of
sub-Section (1) of Section 195 of the CrPC and (ii) it is
expedient in the interests of justice that an inquiry should be
made into the alleged offence.
7. The mere fact that a person has made a contradictory
statement in a judicial proceeding is not by itself always
sufficient to justify a prosecution under Sections 199 and 200 of
the Indian Penal Code (45 of 1860) (hereinafter referred to as
“the IPC”); but it must be shown that the defendant has
intentionally given a false statement at any stage of the judicial
proceedings or fabricated false evidence for the purpose of
using the same at any stage of the judicial proceedings. Even
after the above position has emerged also, still the court has to
form an opinion that it is expedient in the interests of justice to
initiate an inquiry into the offences of false evidence and
offences against public justice and more specifically referred in
Section 340(1) of the CrPC, having regard to the overall factual
matrix as well as the probable consequences of such a
prosecution. (See K.T.M.S. Mohd. and Another v. Union of
India1
). The court must be satisfied that such an inquiry is
required in the interests of justice and appropriate in the facts
of the case.
8. In the process of formation of opinion by the court that
it is expedient in the interests of justice that an inquiry should
be made into, the requirement should only be to have a prima
facie satisfaction of the offence which appears to have been
committed. It is open to the court to hold a preliminary inquiry
though it is not mandatory. In case, the court is otherwise in a
position to form such an opinion, that it appears to the court
that an offence as referred to under Section 340 of the CrPC
has been committed, the court may dispense with the
preliminary inquiry. Even after forming an opinion as to the
offence which appears to have been committed also, it is not
mandatory that a complaint should be filed as a matter of
course. (See Pritish v. State of Maharashtra and Others2
).
9. In Iqbal Singh Marwah and Another v. Meenakshi
Marwah and another3
, a Constitution Bench of this Court has
1
(1992) 3 SCC 178
2
(2002) 1 SCC 253
3
(2005) 4 SCC 370
gone into the scope of Section 340 of the CrPC. Paragraph-23
deals with the relevant consideration:
“23. In view of the language used in Section 340
CrPC the court is not bound to make a complaint
regarding commission of an offence referred to in
Section 195(1)(b), as the section is conditioned
by the words “court is of opinion that it is
expedient in the interests of justice”. This shows
that such a course will be adopted only if the
interest of justice requires and not in every case.
Before filing of the complaint, the court may hold
a preliminary enquiry and record a finding to the
effect that it is expedient in the interests of
justice that enquiry should be made into any of
the offences referred to in Section 195(1)(b). This
expediency will normally be judged by the court
by weighing not the magnitude of injury suffered
by the person affected by such forgery or forged
document, but having regard to the effect or
impact, such commission of offence has upon
administration of justice. It is possible that such
forged document or forgery may cause a very
serious or substantial injury to a person in the
sense that it may deprive him of a very valuable
property or status or the like, but such document
may be just a piece of evidence produced or
given in evidence in court, where voluminous
evidence may have been adduced and the effect
of such piece of evidence on the broad concept
of administration of justice may be minimal. In
such circumstances, the court may not consider
it expedient in the interest of justice to make a
complaint. …”
10. Having heard the learned counsel appearing on both
sides and having gone through the impugned order and also
having regard to the subsequent development whereby the
parties have decided to amicably settle some of the disputes,
we are of the view that the matter needs fresh consideration.
We are also constrained to form such an opinion since it is fairly
clear on a reading of the order that the court has not followed
all the requirements under Section 340 of the CrPC as settled
by this Court in the decisions referred to above regarding the
formation of the opinion on the expediency to initiate an inquiry
into any offence punishable under Sections 193 to 196 (both
inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of the
IPC, when such an offence is alleged to have been committed in
relation to any proceedings before the court. On forming such
an opinion in respect of such an offence which appears to have
been committed, the court has to take a further decision as to
whether any complaint should be made or not.
11. No doubt, such an opinion can be formed even without
conducting a preliminary inquiry, if the formation of opinion is
otherwise possible. And even after forming the opinion also, the
court has to take a decision as to whether it is required, in the
facts and circumstances of the case, to file the complaint. Only
if the decision is in the affirmative, the court needs to make a
complaint in writing and the complaint thus made in writing is
then to be sent to a Magistrate of competent jurisdiction.
12. Under Section 343 of the CrPC, the Magistrate has to
deal with the complaint referred to in Section 340 of the CrPC
as if it was instituted on a police report. Therefore, on the
offences referred to under Section 195(1)(b)(i) of the CrPC, all
falling within the purview of warrant case, the Magistrate has to
follow the procedure for trial of warrant cases under Chapter
XIX Part A comprising of Sections 238 to 243 of the CrPC. It is
only in view of such seriousness of the matter, Section 340 of
the CrPC has provided for a meticulous procedure regarding
initiation of the inquiry.
13. We find that the court in the impugned order has not
followed the procedure in making the opinion that it was
expedient in the interests of justice to file a complaint against
respondent no.1 in exercise of the powers conferred under
Section 340 of the CrPC and directing the Registrar (Judicial) of
the High Court of Gujarat, Ahmedabad “to make complaint
against respondent no.1 in view of the findings recorded by the
court for the offence under Sections 199 and 200 of the IPC….”.
Having regard to the subject matter of the complaint and
subsequent developments, we are of the view that in the
interests of justice the matter needs to be laid to rest.
14. The appeal is hence allowed. The impugned order to the
extent of initiation of the proceedings under Section 340 of the
CrPC is set aside.
15. There shall be no orders as to costs.
........................................J.
(KURIAN JOSEPH)
......………………………………J.
(ROHINTON FALI NARIMAN)
New Delhi;
November 23, 2016.
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