The Code of Criminal Procedure, 1973 - Sections 195 and 340 - Prosecution
for contempt of lawful authority of public servants, for offences against
public justice and for offences relating to documents given in evidence -
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CORAM : A.S. OKA & ANUJA PRABHUDESSAI, JJ.
DATE ON WHICH JUDGMENT IS PRONOUNCED : 25.01.2019
CIVIL APPLICATION NO.72 OF 2017 IN FAMILY COURT APPEAL NO.113 OF
2014
Dr. Santosh Chandrashekar
Shetty v. Ameeta Santosh Shetty
Mr. Nilesh C. Ojha a/w Mr. Partho Sarkar, Mr. Tanveer Nizam, Mr.
Vijay Kurle, Mr. Jay Shah, Ms. Shweta Doshi, Ms. Tanvi Kambli, Ms. Madhuri
Gamre, Ms. Reena S. Rana, Ms.Shashikala Chauhan and Ms. Shraddha Chaurasiya for
the Applicant.
Mrs. Ameeta Santosh Shetty, Respondent in person.
J U D G M E N T
(PER A.S. OKA, J.):
1. By Administrative order
dated 24th July 2017, the Hon’ble the
Chief Justice assigned this Application as well as Civil Application No.71 of
2017 to this Bench. This application in Family Court Appeal is by the husband –
appellant praying for an action against the first respondent – wife under
section 340 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”). The
case made out in the application in short is that the first respondent – wife made
false and misleading statements on oath in her reply filed to Civil Application
No.67 of 2016 and in Civil Application No.220 of 2016 filed by her. On 24th November 2017, submissions were heard in this application.
Thereafter, this Bench noticed that there is a transfer application signed and
affirmed by the applicant – husband seeking transfer of Family Court Appeal
along with interim applications to any Bench other than the Bench headed by one
of us (A.S.Oka, J.). Therefore, by the order dated 24th November 2017, this Court directed that the present application
along with Civil Application No.71 of 2017 which was assigned to this Bench
will be taken up only after transfer application is decided depending upon the
outcome of the transfer application. By the order dated 14th June 2018 passed by the Hon’ble the Acting Chief Justice on the
Administrative Side, the transfer application was ordered to be filed and
accordingly, we have reheard the present application.
2. The applicant – husband
filed a petition for divorce against the first respondent – wife in the Family
Court Appeal at Mumbai. By judgment and order dated 25th November 2015, the prayer for grant of divorce was dismissed by
the learned Judge of the Family Court. The learned Judge of the Family Court,
inter alia, ordered and decreed the applicant to pay permanent alimony of
Rs.30,000/pm to the first respondent wife and Rs.15,000/pm to the daughter.
Family Court Appeal No.113 of 2014 is preferred by the applicant husband
against the said judgment and decree. The first respondent – wife has filed
crossobjections.
3. Civil Application No.11 of
2015 was taken out by the first respondent wife seeking a direction to dismiss
the appeal preferred by the applicant husband on the ground of noncompliance of
the decree for payment of maintenance. On 5th October
2015, a Division Bench of this Court passed the following order :
“1. The Appellant/husband shall pay to the Respondent/wife an
amount of Rs.1,00,000/within one week; an amount of Rs.2,00,000/within four
weeks thereafter; and balance amount of Rs.5,40,000/within six weeks from today
towards arrears of maintenance @ Rs.60,000/per month from the date of the
impugned Judgment and Order. The Appellant/husband shall continue to pay
Rs.60,000/per month to the Respondent/wife, which amount shall be paid in the
first week of each month.
2. Stand over to 29th October, 2015.
3. In view of the
undertaking given by the Appellant/husband to this Court, the execution of the
impugned Judgment and Order is stayed.”
The undertaking dated 8th February
2017 filed by the Applicant is on record by which the Applicant has undertaken
to pay a sum of Rs.60,000/per month to the first respondent – wife on or before
7th day of every month.
4. Civil Application No.67 of
2016 was filed by the applicant husband for seeking extension of time by nine
months for payment of arrears of maintenance as per the order dated 5th October 2015. On 23rd March
2016, the Court passed the following order on Civil Application No.67 of 2016
as well as other Applications:
“1. The Respondent appearing in person states that even as of
today, the Applicant is in arrears of a sum of Rs.50,000/. Perused the order
dated 5th October, 2015. Gross
default has been committed by the Applicant. The submission of the Respondent
appearing in person is that the stay be vacated.
2. If the Applicant wants indulgence, the Applicant will have to
clear arrears of Rs.50,000/within a period of one week from today and will have
to pay costs quantified at Rs.50,000/. Indulgence can be shown provided the
Applicant gives an unconditional undertaking to this Court to keep on paying
the amount in terms of order dated 5th October,
2015. The learned counsel appearing for the Applicant seeks time. Place the
application on 6th
April, 2016. We make it
clear that unless the amounts as aforesaid are paid by the Applicant and
undertaking is produced before the Court, no indulgence can be shown to the
Applicant.”
5. On 13th April 2016, Civil Application No.67 of 2016 along with Civil
Application Nos.11 and 14 of 2015 were placed before the Court on which the
following order was passed :
“2. The direction of the Family Court in the impugned decree is
to make payment of permanent alimony of Rs.30,000/per month to the wife and
Rs.15,000/per month to the daughter with effect from 13th November, 2007. Clause (6) of the impugned decree directs the
applicant to provide separate accommodation to the wife or else to pay rent of
Rs.15,000/per month.
3. It
prima facie appears from the record that the applicant – husband who is an
Orthopaedic Surgeon has a very large income. Moreover, what is challenged is a
money decree. In the Appeal preferred by the applicant – husband, this Court is
not powerless to pass an order of interim maintenance by taking recourse to
Section 24 of the Hindu Marriage Act, 1955.
4. Considering
the nature of the impugned decree and considering the fact that the impugned
decree is a money decree, the applicant will have to deposit the entire amount
due and payable as per the impugned decree as a condition for grant of stay.
5. Even otherwise, this is a fit case to exercise power of the
Appellate Court under SubRule 3 of Rule (1) of order XLI of the Code of Civil
Procedure, 1908 for directing the applicant appellant to comply with the monetary
part of the decree.
6. Place the Civil Application No.14 of 2015 along with
connected applications for hearing on 17th June, 2016.
7. There
will be adinterim stay to the monetary part of the decree subject to the
condition of deposit of the maintenance amount due and payable as per the
impugned decree with the Family Court within a period of six weeks from today.
If the entire amount is not deposited within a period of six weeks from today,
the adinterim stay shall stand vacated without any further reference to the
Court.”
(emphasis added)
6. Being aggrieved by the
order dated 13th April 2016, the applicant
filed Special Leave Petition (C) No.14517 of 2016 before the Apex Court. The
SLP was dismissed by order dated 30th June
2016. However, the Apex Court granted time of six months to the applicant
husband to deposit the amount in terms of clause 7 of the order dated 13th April 2016.
7. In the order dated 13th January 2017, when Civil Application Nos.11 of 2015, 15 of 2015
and 220 of 2016 were placed before this Bench, it was observed that the
applicant husband did not comply with the order dated 5th October 2015 passed in Civil Application No.11 of 2015. It was
also held that the applicant did not comply with clause 7 of the order dated 13th April 2016 even within the time of six months extended by the
Apex Court. In paragraphs 12 to 19 of the said order, this Bench observed thus
:
“12. Thus,
the scenario which emerges to day is that the Appellanthusband did not comply
with order dated 5th
October, 2015 passed in
Civil Application No.11 of 2015. Consequently, the Appellanthusband did not
comply with clause 7 of the order dated 13th April,
2016 passed by this Court even though the time was extended by six months as
per the order of the Apex Court.
13. Paragraph 3 of
the order dated 13th
April, 2016 records a prima
facie finding that the Appellanthusband is an Orthopaedic Surgeon and he has a
very large income. The decree of the Family Court directs that the husband
shall pay permanent alimony of Rs.30,000/ per month to the wife and Rs.15,000/
to the daughter. The learned counsel for the Appellanthusband on instructions
of the Appellanthusband has expressed inability to comply with the condition
imposed by clause 7 of the order dated 13th April,
2016.
14. Thus, there is a gross breach committed by the
Appellanthusband of the aforesaid orders. The Appellanthusband has not
deposited entire arrears of maintenance payable as per the impugned decree. We
may reiterate here that under the order dated 13th April, 2016 time of six weeks was granted to deposit the entire
arrears, which was extended by six months by the Apex Court, which expired on
30th December, 2016.
15. Therefore,
considering this conduct, even assuming that as of today adinterim order dated
5th October, 2015 passed in
Civil Application No.11 of 2015 continues to operate, the same will have to be
forthwith vacated.
16. Accordingly, we hold that the order of stay dated
5th October, 2015 stands vacated. We also make it
clear that the adinterim stay of the operative part of the decree is not
operative as the same stood vacated on the failure of the Appellanthusband to
comply with the clause 7 of the order dated 13th April, 2016.
17. We therefore,
direct that the Civil Application No.11 of 2015 shall be fixed for hearing on
10th February, 2017.
18. We make it clear
that even the show cause notice issued in terms of clause 2 of the order dated
22nd July, 2016 will be heard on
that day.
19. We also make it clear that the question of
initiating the action against the Petitioner under the Contempt of Courts Act,
1971 for breach of undertaking recorded in the order dated 5th October, 2016 will be considered on the next date.”
(emphasis added)
8. Civil Application No.71 of
2017 has been filed by the applicant husband for recall of the order dated 13th January 2017. By the administrative order dated 24th July 2017, the Hon’ble the Chief Justice directed that Civil
Application Nos.71 and 72 of 2017 be placed before this Bench. As the
submission of the learned counsel appearing for the applicant is that Civil
Application No.72 of 2017 should be heard first, we have taken up the said
application for hearing.
9. In the present
application, the contention of the applicant is that deliberate false and
misleading statements have been made by the first respondent wife in her reply
to Civil Application No.67 of 2016. The case made out in the application is
that false statements have been made about the material facts by the first
respondent wife in her Civil Application No.220 of 2016 filed for enhancement
of maintenance. The alleged false and misleading statements on the basis of
which relief is claimed have been set out in the present application. The
learned counsel appearing for the applicant invited our attention to the said
averments.
10. Firstly, he relied upon
the following averments in paragraph 8 of the reply to Civil Application No.67
of 2016 :
“…… The Applicant is partner in Orbit Hospital and is also owner
of 2 hospitals further stating that the Applicant owns 1 Mercedes Car and 2 BMW
Cars, That the Applicant owns an apartment on the 40th Floor Imperial which has 7 – star Super luxury apartments,
Applicants owns Sai Sparsh Hospital and is owner of Hospital in Boisar which is
in collaboration with the TATA group….”
The learned counsel appearing for the applicant submitted that
the applicant is not the owner of any house and he is staying on rental basis
in Mumbai. He submitted that the applicant is not the owner of any hospital and
is not carrying out any business in partnership. He submitted that Mercedes Car
belongs to applicant’s sister and BMW Car belongs to a business group where his
sister works as C.E.O.
11. The second instance of
false allegations is pointed out in clause (c) of paragraph 5 of the present
application which reads thus :
“(c) That the Respondent No.1 has also dishonestly and falsely
mentioned in the same Paragraph no.17 of the said Petition that “….. The
Applicant is First Surgeon in India to use Oxinim Implants. The Applicants owns
Hospital wherein he was paying Rs.1,00,000/p. m. as rent and had 4 assistants
whom he was paying Rs.25,000/each per month….”.
The learned counsel appearing for the applicant submitted that
the applicant is a visiting a consultant attached to various hospitals and gets
work from these hospitals. He submitted that if according to the case of the
first respondent, the applicant is the owner of a hospital, there is no
question of paying rent. The learned counsel appearing for the applicant
submitted that with the malafide intention, the applicant has not mentioned the
name of the hospital allegedly owned by the applicant and no document is
produced is support. He submitted that the allegations made are patently false
without any proof.
12. The learned counsel
appearing for the applicant thereafter pointed out the averments made in
paragraph 14 of Civil Application No.220 of 2016. The said averments read thus
:
“….. Stridhan – Jwellery (Worth Rs.3 Crores as of today) Rs. 40
lakhs which was paid in cheque. It may be noted that the issue of Stridhan is
absolutely undisputed by the Respondent No.1 – husband…”
He urged that the aforesaid statement is contrary to the written
statement filed in the Family Court. He stated that in the FIR lodged with
Vashi Police Station, it has been alleged that the same amount was paid in
cash. He pointed out that the first respondent has mentioned value of Stridhan
as Rs. 25 lakhs in her written statement filed in the Family Court and
Rs.27,35,000/in the FIR. He relied upon the order dated 7th March 2016 passed by the Court of the Judicial Magistrate at
Belapur. He also invited our attention to the statements made in the
crossexamination of the first respondent.
13. Thereafter, the learned
counsel relied upon the statements made in paragraph 22(b) by the first
respondent in the aforesaid civil application. The said portion of paragraph
22(b) which is quoted in clause (e) of paragraph 5 of the present Civil
Application reads thus :
“…. The Respondent No.1 husband is the first surgeon he was
paying 1 lakh per month as rent and had four assistants whom he was paying
Rs.25,000/each per month in the year 2010 as per the orders of the Hon’ble
Judge Abhay S. Oka dated 02/03/2010 ….
The above statement is a distorted judgment of order passed by
Hon’ble Justice A.S.Oka. In fact in the order it is observed that “…. In the
financial year 2008, 2009 the Applicant has contributed to the extent of
4,12,339/towards paid up share capital as the partner of the firm…
“… The account shows that the Applicant has paid a sum of
Rs.2,00,000/to his assistants during the said year…..”
The learned counsel appearing for the applicant submitted that
the said statement is based on misreading of the order dated 2nd March 2010. No such observation was made in the order.
14. The learned counsel
appearing for the applicant also invited our attention to the averments made in
paragraph 23(2) of Civil Application No.220 of 2016 which has been quoted in
clause (f) of paragraph 5 of this Civil Application. The said averments read
thus :
“…. The Respondent No.1 Husband has acquired his super
speciality qualifications because of the money he forcefully extracted from
Applicant wife and her family members. It may be noted that the Respondent No.1
Husband’s parents were financially not in a position to finance their son’s
education given the fact that they had mortgaged their flat for Rs.3 lakhs in
the year 1999….”
The learned counsel appearing for the applicant submitted that
this contention is completely false and devoid of any supporting evidence. He
pointed out the statements made by the first respondent in various proceedings
in support of his contention that false statements have been made. His
contention is that the first respondent is guilty of offences under sections
191 to 193, 196, 199, 200, 465 to 468, 471 and 474 of Indian Penal Code. In
support of the application, the learned counsel appearing for the applicant has
relied upon large number of decisions.
15. The submission of the
learned counsel appearing for the applicant is that all that he is seeking is a
preliminary enquiry on the basis of which this Court can come to the conclusion
whether action under section 340 of Cr.P.C. is warranted. He pointed out the
manner in which the first respondent – wife is taking undue advantage of the
sympathy of the Court. The false allegations are being made by wife for
securing maintenance. He pointed out that at the stage when the Court considers
the prayer under section 340 of Cr.P.C., the respondent has no right of hearing
and therefore, in the present case, the first respondent wife is not entitled
to be heard in the matter. We must note that he relied upon certain decisions
in support of this proposition including the decision of the learned single
Judge of this Court in the case of Union of India Vs. Haresh Virumal Milani, 2017(4) Mh. L.J. 441. However, as this legal
position appears to be fairly well settled supported by even the decisions of
the Apex Court, we are not referring to other decisions cited by the learned
counsel appearing for the applicant in support of this proposition. In fact, we
have not heard the first respondent – wife appearing in person.
16. He relied upon several
decisions of various High Courts on the procedure to be followed while dealing
with the applications under section 340 and laid emphasis on the fact that it
is the duty of the Court to hold at least a preliminary inquiry with a view to
find out the truth. He relied upon several observations of the learned Single
Judge of the Delhi High Court in the case of H.S. Bedi Vs. National Highway Authority of India, (2016) SCC OnLine Del 432. He submitted that the
offence of perjury cannot be taken lightly as tendency to commit such offences
is on rise. Relying upon the said decision, he submitted that it is the duty of
the Court to ensure that every litigant comes to the Court with clean hands and
when there is material on record to show that a litigant has not come to the
Court with clean hands, the Court should come down very heavily on such
litigant. He submitted that the tendency to make false claims before the Court
is on rise. He also pointed out the observations made by another learned Single
Judge of the Delhi High Court in the case of Mrs. Geeta Monga Vs. Ram Chand S. Kimat Rai & Ors. in decision dated 11th January 2005 in Criminal Application No.76 of 2004, MANU/DE/0021/2005. He pointed out that the Delhi High Court criticized approach
of Sessions Court while rejecting the application under section 340. He also
relied upon another decision of the learned Single Judge of the Delhi High
Court dated 7th August 2018 in the case of Louis Vitton Malletier Vs.
Omi and Ors.,
MANU/D/2769/2018. He relied upon the
decision of the Apex Court in the case of Meghmala & Ors. Vs. G. Narasimha Reddy and Ors., (2010) 8 SCC 383 which
lays down as to what should be the approach of the Court while dealing with the
cases of abuse of process of law and fraud. He submitted that fraud vitiates
all judicial proceedings.
17. By way of illustration, he
relied upon an order of this Court in the case of Mr. Bhavesh Dinesh Doshi
Vs. Mamta Bhavesh Doshi, 2016
SCC Online Bom 12799.
He pointed out that this Court directed discreet enquiry into a claim made by
the husband who contended that he had no income. He relied upon the decision of
this Court on anticipatory bail application in the case of Ashok Motilal Saraogi Vs.
State of Maharashtra, 2016
All MR (Cri.) 3400.
He relied upon certain decisions in support of the legal proposition that
though the decisions of other High Courts do not bind this Court, they have
persuasive efficacy. He relied upon the observations made by the Delhi High
Court in the case of Sanjeev
Kumar Mittal Vs. State, 2011
(121) DRJ 328
on the procedure to be
followed while dealing with the application under section 340 of Cr.P.C. He
invited our attention to a decision of the Apex Court in the case of State of Goa Vs. Jose
Maria Albert Vales,
(2018) 11 SCC 659. He relied upon a decision
of this Court in the case of Farheed Ahmed Qureshi Vs. The State of Maharashtra, 2018 SCC Online Bom 960 as an illustration where an
action under section 340 was ordered. He invited our attention to the decision
of the Apex Court in the case of Pritesh Vs. State of Maharashtra and Ors., (2002) 1 SCC 253.
18. He relied upon an order of
the learned Single Judge in the case of Union of India Vs. Harish Virumal Milani, 2018 SCC Online Bom. 2080. He urged that the first
respondent whose case is based on falsehood has no right to insist that the
Family Court Appeal should be heard and therefore, the present application will
have to be heard on merits before other proceedings are heard. He invited our
attention to the decision of the Apex Court in the case of Perumal Vs. Janaki, (2014) 5 SCC 377. He relied upon a decision
of the learned Single Judge of Delhi High Court in the case of Jagdish Prasad Vs. State
and Ors., MANU/DE/0302/2009.
19. He urged that it is the
duty of the Courts to ascertain the truth. He relied upon the decision of the
Apex Court in the case of Maria Margarida Sequeira Fernandes and others Vs. Erasmo Jack De
Sequeira, (2012) 5 SCC 370. He relied upon the
guidelines laid down by Delhi High Court in the case of Kusum Sharma Vs. Mahinder
Sharma, 2017 SCC OnLine Delhi 12534. The learned counsel
submitted that the offending statements made by the first respondent are only
for the purposes of getting favourable order from the Court which are made
without any supporting evidence. He submitted that all that the applicant is
seeking is holding of a preliminary enquiry so that the Court can come to a
conclusion whether a case is made out to direct filing of a complaint. He
submitted that either this Court can hold an enquiry or can direct any other
authority to hold an enquiry. He submitted that there are litigants such as the
wife in this case who have no regard for the truth and therefore, it is all the
more necessary for this Court to order enquiry.
20. We have considered the
submissions. We have carefully perused each and every decision relied upon by
the learned counsel for the Applicant. The law seems to be well settled on one
aspect. When the Court considers an application under section 340 of the
Cr.P.C., the respondent against whom action is sought has no right of hearing
at that stage. That is the reason why we have not heard the first respondent
wife appearing in person. As far as section 340 of Cr.P.C. is concerned, there
are certain material decisions of the Apex Court which have not been cited by
the applicant. The first decision is of a Constitution Bench in the case of Iqbal Singh Marwah and
Anr. Vs. Meenakshi Marwah and Anr.,
(2005) 4 SCC 370. In the said decision, the
Apex Court has considered the scheme of Chapter XXVI of Cr.P.C. and the scope
of section 340. The Constitution Bench considered earlier decisions dealing
with section 476 of the Code of Criminal Procedure, 1898 which is pari materia with section 340 of Cr.P.C.
Section 195 of Cr.P.C imposes embargo on the power of the Criminal Court to
take cognizance of certain offences concerning administration of justice. Section
195 of Cr.P.C. reads thus :
“195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences relating to
documents given in evidence –
(1) No Court shall take cognizance —
(a) (i) of any offence punishable under sections 172 to 188
(both inclusive)of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit, such offence, except
on the complaint in writing of the public servant concerned or of some other
public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following
section of the Indian Penal Code (45 of 1860), namely, sections 193 to 196
(both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such
offence is alleged to have been committed in, or in relation to, any proceeding
in any Court, or (ii) of any offence described in section 463, or punishable
under section 471, section 475 or section 476, of the said Code, when such
offence is alleged to have been committed in respect of a document produced or
given in evidence in a proceeding in any Court, or (iii) of any criminal
conspiracy to commit, or attempt to commit, or the abetment of, any offence
specified in subclause (i) or subclause (ii), except on the complaint in
writing of that Court, or of some other Court to which that Court is
subordinate (2) Where a complaint has been made by a public servant under
clause (a) of subsection (1) any authority to which he is administratively
subordinate may order the withdrawal of the complaint and send a copy of such
order to the Court; and upon its receipt by the Court, no further proceedings
shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial
in the Court of first instance has been concluded (3) In clause (b) of
subsection (1), the term "Court" means a Civil, Revenue or Criminal
Court, and includes a tribunal constituted by or under a Central, provincial or
State Act if declared by that Act to be a Court for the purposes of this
section (4) For the purposes of clause (b) of subsection (1), a Court shall be
deemed to be subordinate to the Court to which appeals ordinarily lie from
appealable decrees or sentences of such former Court, or in the case of a civil
Court from whose decrees no appeal ordinarily lies, to the principal Court
having ordinary original civil jurisdiction within whose local jurisdiction
such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate
Court of inferior jurisdiction shall be the Court to which such Court shall be
deemed to be subordinate;
(b) where appeals lie to a civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the civil or Revenue Court
according to the nature of the case or proceeding in connection with which the
offence is alleged to have been committed Comments.”
21. Section 340 of the Cr.P.C.
reads thus :
“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 interest of
justice that an inquiry should be made into any offence referred to in
clause (b) of subsection (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 for the accused
before such Magistrate, or if the alleged offence is nonbailable 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.
(2) The power conferred on a Court by subsection (1) in respect
of an offence may, in any case where that Court has neither made a complaint
under subsection (1) in respect of that offence nor rejected an application for
the making of such complaint, be exercised by the Court to which such former
Court is subordinate within the meaning of subsection (4) of section 195.
(3) A complaint made under this section shall be signed,—
(a) where the Court making the complaint is a High Court, by
such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as
in section 195.”
(underline supplied)
22. The Constitution Bench of
the Apex Court in the case of Iqbal Singh Marwah (supra) interpreted section 340. Paragraphs 23 and 24 of the
said decision reads thus :
“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. The broad view of clause
(b)(ii), as canvassed by learned counsel for the appellants, would render the
victim of such forgery or forged document remediless. Any interpretation which
leads to a situation where a victim of a crime is rendered remediless, has to
be discarded.
24. There is another
consideration which has to be kept in mind. Subsection (1) of Section 340 CrPC
contemplates holding of a preliminary enquiry. Normally, a direction for filing of a complaint
is not made during the pendency of the proceeding before the court and this is
done at the stage when the proceeding is concluded and the final judgment is
rendered. Section 341
provides for an appeal against an order directing filing of the complaint. The
hearing and ultimate decision of the appeal is bound to take time. Section
343(2) confers a discretion upon a court trying the complaint to adjourn the
hearing of the case if it is brought to its notice that an appeal is pending
against the decision arrived at in the judicial proceeding out of which the
matter has arisen. In view of these provisions, the complaint case may not
proceed at all for decades specially in matters arising out of civil suits
where decisions are challenged in successive appellate fora which are
timeconsuming. It is also to be noticed that there is no provision of appeal
against an order passed under Section 343(2), whereby hearing of the case is
adjourned until the decision of the appeal. These provisions show that, in
reality, the procedure prescribed for filing a complaint by the court is such
that it may not fructify in the actual trial of the offender for an unusually
along period. Delay in prosecution of a guilty person comes to his advantage as
witnesses become reluctant to give evidence and the evidence gets lost. This
important consideration dissuades us form accepting the broad interpretation
sought to be placed upon clause (b)(ii).
(emphasis added)
23. The Bench of three Hon’ble
Judges of the Apex Court in the case of Chajoo Ram Vs. Radhey Shyam and Anr., 1971(1) SCC 774 had
an occasion to consider the scope of section 476 of the Code of Criminal
Procedure, 1878. This provision is pari materia to section 340 of Cr.P.C. In paragraph 7, the Apex Court has
held thus :
“7. The
prosecution for perjury should be sanctioned by courts only in those cases
where the perjury appears to be deliberate and conscious and the conviction is
reasonably probable or likely. No doubt giving of false evidence and filing
false affidavits is an evil which must be effectively curbed with a strong hand
but to start prosecution for perjury too readily and too frequently without due
care and caution and on inconclusive and doubtful material defeats its very
purpose. Prosecution should be ordered when it is considered expedient in the
interests of justice to punish the delinquent and not merely because there is
some inaccuracy in the statement which may be innocent or immaterial. There
must be prima facie case of deliberate falsehood on a matter of substance and the
court should be satisfied that there is reasonable foundation for the charge. In the present case we do
not think the material brought to our notice was sufficiently adequate to
justify the conclusion that it is expedient in the interests of justice to file
a complaint. The approach of the High Court seems somewhat mechanical and
superficial : it does not reflect the requisite judicial deliberation : it
seems to have ignored the fact that the appellant was a Panch and authorised to
act as such and his explanation was not implausible. The High Court further
appears to have failed to give requisite weight to the order of the District
Magistrate which was confirmed by the Sessions Judge, in which it was
considered inexpedient to initiate prosecution on the charge of alleged false
affidavit that the appellant had not acted as Sarpanch during the period of the
stay order. The subjectmatter of the charge before the District Magistrate was
substantially the same as in the present case. Lastly, there is also the
question of long lapse of time of more than ten years since the filing of the
affidavit which is the subjectmatter of the charge. This factor is also not
wholly irrelevant for considering the question of expediency of initiating
prosecution for the alleged perjury. In view of the nature of the alleged
perjury in this case this long delay also militates against expediency of
prosecution. And then by reason of the pendency of these proceedings since 1962
and earlier similar proceedings before the District Magistrate also the
appellant must have suffered both mentally and financially. In view of all
these circumstances we are constrained to allow the appeal and set aside the
order directing complaint to be filed.” (emphasis added)
24. In a recent decision in the
case of Sergi
Transformer Explosion Prevention Technologies Private Limited and Anr. Vs. CTR
Manufacturing Industries Limited and Anr., (2016)
12 SCC 713 a Bench of
three Hon’ble Judges of Hon’ble the Apex Court had again an occasion to deal
with the scope of section 340. In paragraph 9, the Apex Court held thus :
“9. The High Court while considering the matter has in our
opinion, failed to appreciate the defence that had been set up by the
appellants. The explanation offered by the appellants was a plausible one which
ought to have been kept in mind by the High Court while examining whether the
present was a fit case for prosecution of the appellants. At any rate, the High
Court has not adverted to the question whether it was expedient “in the
interest of justice” to launch the prosecution against the appellants for the
mistake which according to the respondents was deliberate but unintentional
according to the appellants. According to the appellants the mistake occurred
out of a certain communication gap between the higher officers of the Company
and the operational staff. That prosecution cannot be lunched just at the
asking of a party, is well established. A long line of decisions of this Court have examined the
circumstances in which the court ought to invoke that power. The High Court
has, while considering the question of launching prosecution for perjury, to
examine whether it is expedient in the interest of justice to do so, having
regard to the totality of the circumstances. Inasmuch the High Court has failed
to advert to that aspect and record a finding that it is expedient in the
interest of justice to direct prosecution, the order passed by the High Court
falls short of the legal requirements.”
(emphasis added)
25. In another recent decision
of the Apex Court in the case of Amarsang Nathaji Vs. Hardik Harshadbhai Patel and Ors., (2017) 1 SCC 113 the Apex Court had an
occasion to consider the scope of section 340. The Apex Court heavily relied
upon the decision of its Constitution Bench in the case of Iqbal Singh (supra). In paragraphs 6 to
10, the Apex Court held thus :
“6. 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
Section 199 and 200 of the Penal Code, 1860 (45 of 1860) (hereinafter referred
to as “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 to in Section 340 (1) CrPC,
having regard to the overall factual matrix as well as the probable consequences of such a prosecution. (See
K.T.M.S Mohd. v. Union of India). The court must be satisfied that such an
inquiry is required in the interests of justice and appropriate in the facts of
the case.
7. 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 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 [Pritish v. State of Maharashtra, (2002) 1 SCC 253 : 2002 SCC
(Cri) 140])
8. In Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution
Bench of this Court has gone into the scope of Section 340 CrPC. Para 23 deals
with the relevant consideration: (SCC pp. 38687)
“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.
9. 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 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
Section 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and
228 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.
10. 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.”
(emphasis added)
26. In another decision in the
case of Kailash
Vijayvargiya Vs. Antar Singh Darbar and Ors., (2018)
12 SCC 373 the Apex
Court reiterated the law laid down in paragraph 6 of the decision in the case
of Amarsang Nathaji (supra).
27. The law laid down by the
Apex Court on section 340 of Cr.P.C. in the aforesaid decisions can be
summarised as under :
A] The Court is not bound to make a complaint regarding
commission of offence and the said course will be adopted only if the Court is
of the opinion that it is expedient in the interests of justice to do so and
not in every case;
B] Before ordering filing of complaint, the Court may hold a
preliminary enquiry. But it is not necessary to hold preliminary enquiry in
every case and when the Court is otherwise in a position to form an opinion
which is a condition precedent for initiating action under section 340, the
Court may dispense with the enquiry;
C] Even if the Court comes to the conclusion that prima facie, a
case of commission of offence is made out, it is not necessary in every case to
direct filing of a complaint. The Court cannot direct filing of a complaint
unless on the basis of material on record it is of the opinion that it is
expedient in the interests of justice to direct filing of a complaint. As held
by the Constitution Bench of the Apex Court in the case of Iqbal Singh (supra),
expediency will normally be judged by the Court by weighing not the magnitude
of injury suffered by the person affected by the alleged offence but having
regard to the effect or impact of such commission of offence has upon the
administration of justice.
D] As observed in paragraph 24 of the decision of the
Constitution Bench in the case of Iqbal Singh, normally a direction for filing
of a complaint is not made during the pendency of proceedings and that is done
at the stage when proceeding is concluded and final judgment is rendered.
28. Thus, from the law laid
down by the Apex Court it is apparent that action under section 340 is to be
initiated at the discretion of the Court and the discretion will have to be
exercised considering the aforesaid parameters laid down. It is in the light of
the legal position that the facts of the case will have to be considered. The
decree under challenge is a decree directing the applicant who is a medical
practitioner to pay maintenance of Rs.30,000/pm to the first respondent – wife
and Rs.15,000/pm to the daughter. Even in the present application, in clause
(c) of paragraph 5, the applicant has accepted that he is a Visiting Consultant
attached to various hospitals and gets his work from these hospitals. In the
present application, the applicant has not come out with material particulars
with supporting documents such as his income for the relevant period and the
assets held by him. In the impugned judgment, which is the subject matter of
challenge in Family Court Appeal, in paragraph 82, the learned Judge of the
Family Court, held thus :
“82. The
petitioner is renowned surgeon/medical practitioner. Various documents relating
to loan obtained by petitioner clearly shows that he is successful medical
practitioner. The
respondent in her affidavit has stated that he earns at least 2 lacs per
surgery and performs 810 surgery in a month. At the same time the evidence
placed in the form of I.T. return can not be taken as true income to infer
about earning of the petitioner. He is having ancestral property and he must have share in it. He
is being attached to various hospitals, like SL. Raheja hospital, Mahim, Seven
Hills hospital Andheri and other hospitals. This shows that he is earning
handsome income. He has not disputed that he is not attached to various
hospitals and earning handsome income. He claims that he is earns Rs.10 lacs
per annum. That can not be accepted. There is absolutely no whisper or sound
about to show that he earns just Rs.10 lacs/p.a. Therefore, the claim of
maintenance of respondent will have to be accepted. Considering the income
capacity of the petitioner, needs of the respondent her childSarayu,
considering standard of living of the parties, their dependents, it would be
appropriate to award maintenance of Rs.30,000/to the petitioner and
Rs.15,000/to daughter Sarayu, will meet the ends of justice. Hence, I answer issue No.6
accordingly.”
(emphasis added)
29. As stated earlier, these
findings are under challenge in the Family Court Appeal which is pending and
there is a crossobjection filed by the first respondent – wife for enhancement.
The issue regarding the income and assets of the applicant will have to be
decided at the time of final hearing of the appeal.
30. By the order dated 5th October 2015 which is quoted above, more than one direction was
issued to the applicant. The first direction was to pay total amount of Rs.8,40,000/by
three installments towards arrears of maintenance. The applicant was directed
to pay Rs.60,000/pm to the first respondent in the first week of each calender
month. Civil Application No.67 of 2016 was filed by the applicant – husband for
grant of extension of time by nine months for payment of arrears as per order
dated 5th October 2015.
31. On Civil Application No.14
of 2015 filed by the applicant and on Civil Application No.11 of 2015 filed by
the first respondent – wife, on 13th April
2016 this Court granted stay to the monetory part of the decree subject to the
condition of deposit of maintenance amount due and payable as per the impugned
decree within six weeks from the date date. The Court observed that if the
amount of arrears was not deposited within six weeks, the adinterim stay shall
stand vacated. SLP No.14517 of 2016 was filed by the applicant before the Apex
Court for challenging the order dated 13th April
2016. By order dated 30th
June 2016, the SLP has been
dismissed. However, the Apex Court extended the time granted by clause 7 of
order dated 13th April 2016 to pay the
decretal amount by a period of six months. In the order dated 13th January 2017 passed by this Court, in paragraph 8, it is noted
that the applicant has not complied with the order of the Apex Court and
therefore, adinterim stay stands vacated. There is nothing placed on record to
show that the applicant has complied with the order. On the contrary, the
applicant has taken out Civil Application No.71 of 2017 for recall of order
dated 13th January 2017. There is
nothing placed on record to show that the applicant applied for extension of
time before the Apex Court after the expiry of the period of six months granted
by the said Court.
32. As stated earlier, the
allegations of making false statements are based on the statements made by the
first respondent – wife in reply to Civil Application No.67 of 2016 as well as
in her Civil Application No.220 of 2016. There is also an allegation that there
is inconsistency in the statements made by the first respondent as regards
quantum of Stridhan. Though Civil Application No.71 of 2017 for recall of order
dated 13th January 2017 is pending,
the said order dated 13th
January 2017 has been
confirmed by the Apex Court by extending time. The issue involved in the appeal
is as regards the right of the first respondent to claim maintenance and the
quantum of maintenance. The issue regarding income of the applicant, the issue
whether he is the owner of hospital and the issue of the extent of the assets
held by him will have to be gone into in Appeal and Crossobjections. The issue
of Stridhan will have to be gone into at the time of final hearing. There is no
adjudication made so far on the averments made by the wife on the basis of
which this Civil Application is filed. As held by the Constitution Bench in the
case of Iqbal Singh, while deciding expediency of taking action, the Court
cannot weigh magnitude of injury suffered by the person affected, but the Court
is more concerned with the effect or impact of such commission of offence on
the administration of justice. In view of the facts which are stated above, we
are of the view that at this stage it cannot be stated that the alleged false
or misleading allegations made by the first respondent have any serious impact
upon administration of justice and therefore, at this stage, the prayer made by
the applicant cannot be entertained. We are of the view that as the allegations
and counter allegations will have to be gone into at the time of final hearing
of the Family Court Appeal, at this stage, it is not expedient in the interests
of justice to take action. When we say so, the conduct of the Applicant as
reflected from the record is also taken into consideration. The Applicant has
to come clean by making disclosure of his true income, sources of income, his
assets, etc during the relevant period supported by documents. If a case is
made out, at appropriate stage, this Court can direct recording of evidence by
the Family Court on the case made out by the parties regarding the income of
the husband and the case made out by the wife. We make it clear that when the
appeal is heard on merits, the issues raised by the applicant in this
application as well as prayers will have to be considered by the Court.
33. Subject to what is
observed above, the application is rejected. We make it clear that we have made
no factual adjudication on factual aspects of the case.