Respected Sirs,
I have strong evidence for initiation of enquiry under Section 340 Cr. P. C., and my contentions is that even before final decision in the main matter enquiry under Section 340 of Cr. P. C. should be initiated. But trial Court is of opinion that it will take cognizance once matter is finaly decided. If any haave citing of Supreme Court Judgment supporting my contention kindly inform mee.
Sec.340 is a procedure to be adopt in cases fall u/s 195.
Therefore in my opinion trial court must inquire as and when such complaint reported during trial by following procedure laiddown under sec 340.
but court may postpone its decision till the complition of trial.
Dear Dharmendrasinhji,
If the offender is a company, can the application u/s 340 be filed against the Chairman/MD? The deponent was at the time an officer of the company but has resigned now.
Dear Milap,
Every fact does not give rise to application under section 340 Cr.p.c. now a days courts are avoiding to proceed with the application as the judge has to become complainant before the magistrate hence they dismiss it. Please clarify so that better opinion can be advised.
Dear Scott,
You can contact me for opinion.
Dear Mr. Ramaprasad,
The company and its authorised representative are liable to be prosecuted only not the directors because directors will show their ignorance.
Rajiv Bhasin
Advocate
Bhasin Legal Consultants
SOLICITORS AND ADVOCATES
www.bhasinlegalconsultants.com
In view of Two Supreme Court Judgments, this is mandatory for trial Courts to get inquire the matter as and when application under Section 340 of Cr.P.C. are filed. Citing:-
CITINGS:-
(1) 2005(4)SCC370, 2005(3)SCALE9, 2005(3)JT195, CASE NO.: Appeal (crl.) 402 of 2005, PETITIONER: Iqbal Singh Marwah & Anr. RESPONDENT: Meenakshi Marwah & Anr. DATE OF JUDGMENT: 11/03/2005; and
(2) 2001 AIR 2204, 2001(3) SCR 750, 2001(5) SCC 289, 2001(4) SCALE 199, 2001(1) Suppl.JT 332, CASE NO.: Writ Petition (civil) 77 of 2001, PETITIONER: RE: SUO MOTO PROCEEDINGS AGAINST MR. R, KARUPPAN, ADVOCATE DATE OF JUDGMENT: 12/05/2001
In the above Citing No. 1, Hon'ble Supreme Court interalia holds as follows:-
21. Judicial notice can be taken of the fact that the Courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end. Judging from such an angle will be in consonance with the principle that an unworkable or impracticable result should be avoided. In Statutory Interpretation by Francis Bennion (Third ed.) para 313, the principle has been stated in the following manner :
"The court seeks to avoid a construction of an enactment that produces an unworkable or impracticable result, since this is unlikely to have been intended by Parliament. Sometimes however, there are overriding reasons for applying such a construction, for example where it appears that Parliament really intended it or the literal meaning is too strong."
The learned author has referred to Sheffield City Council v. Yorkshire Water Services Ltd. (1991) 1 WLR 58 at 71, where it was held as under :
"Parliament is taken not to intend the carrying out of its enactments to be unworkable or impracticable, so the court will be slow to find in favour of a construction that leads to these consequences. This follows the path taken by judges in developing the common law. The common law of England has not always developed on strictly logical lines, and where the logic leads down a path that is beset with practical difficulties the courts have not been frightened to turn aside and seek the pragmatic solution that will best serve the needs of society."
In S.J. Grange Ltd. v. Customs and Excise Commissioners (1979) 2 All ER 91, while interpreting a provision in the Finance Act , 1972, Lord Denning observed that if the literal construction leads to impracticable results, it would be necessary to do little adjustment so as to make the section workable. Therefore, in order that a victim of a crime of forgery, namely, the person aggrieved is able to exercise his right conferred by law to initiate prosecution of the offender, it is necessary to place a restrictive interpretation on clause (b)(ii).
In the above Citing No. 2 the Hon'ble Supreme Court interlia holds as follows:-
In India, law relating to the Offence of perjury is given a statutory definition under Section 191 and Chapter XI of the Indian Penal Code, incorporated to deal with the offences relating to giving false evidence against public justice. The offences incorporated under this Chapter are based upon recognition of the decline of moral values and erosion of sanctity of oath. Unscrupulous litigants are found daily resorting to utter blatant falsehood in the courts which has, to some extent, resulted in polluting the judicial system. It is a fact, though unfortunate, that a general impression is created that most of the witnesses coming in the courts despite taking oath make false statements to suit the interests of the parties calling them. Effective and stern action is required to be taken for preventing the evil of perjury, conceitedly let loose by vested interest and professional litigants. The mere existence of the penal provisions to deal with perjury would be a cruel joke with the society unless the courts stop to take an evasive recourse despite proof of the commission of the offence under Chapter XI of the Indian Penal Code. If the system is to survive, effective action is the need of the time.
Please read the citation no one fully and completely though you have done hard work to find them.
Please read the imp section of this citation mentioned by you-
9. In Iqbal Singh Marwah & Anr. v. Meenakshi Marwah & Anr., AIR
2005 SC 2119, this Court observed:
“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…..”
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In view of the above, law on the issue can be summarised that |
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in order to initiate prosecution for perjury, the court must prima facie |
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reach a conclusion after holding preliminary inquiry that there has |
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been a deliberate and conscious effort to misguide the court and |
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interfere in the administration of justice. More so, it has to be seen |
whether such a prosecution is necessary in the interest of justice
When it is a case of giving false evidence, can Sec 340 CrPC and Sec 193 IPC be both pursued?
I fully agree with you that when any court is of opinion that it is expedient in the interests of justice” and the interest of justice requires. 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.
In my case, the Complainant filed an application under Section 156(3) of Cr. P. C., without any bonafide reasons and grounds but knowing filed to obtain an illegal Order, which is under the law is not due, by creating a false story to misuse the Administration Of Justice, which is in my view is an matter concerned interest of justice, and Judge can weighing the effect and impact upon the Administration of Justice, which should be decided by applying the judicial mind only.
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