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Shantanu Wavhal (Worker)     07 May 2014

Miscellaneous judicial case

https://bombayhighcourt.nic.in/generatenewauth.php?auth=cGF0aD0uL2RhdGEvbmFnanVkZ2VtZW50cy8yMDA3LyZmbmFtZT1DUkFQUExOMTExNTA3LnBkZiZzbWZsYWc9Tg==

 

7. Whenever an application under Section 340 of Code of Criminal Procedure is filed, the Civil Manual Chapter XIX para 337 requires that it should be registered as Miscellaneous Judicial Case i.e. a case where a Judicial Enquiry is contemplated. The learned Civil Judge should have, therefore, directed the application to be registered as Miscellaneous Judicial Case.

 

Query :

 

is this applicable to ONLY CIVIL cases ??

 

is it same if the application is filed in Criminal Case ?

i.e.-

whether the application u/s 340 of crpc in a criminal case has to be registered separately ??

 



Learning

 9 Replies

legal problems (PROPER SOLUTION EFFORTS FOR COMPLEX PROBLEMS. youract@gmail.com)     07 May 2014

This is common for civil as well as criminal cases.

 

Just  because the matter is   against  administration  of   justice .

1 Like

Shantanu Wavhal (Worker)     07 May 2014

it is specifically mentioned in Civil Manual.

but i could not find such provision in Criminal Manual.


so confused

 

i have filed IPC 494 case against Illegitimate wife

in this case i filed CrPC 340 application against her.

but the court has not given it a number / not separated it.

this application is just lying in the file of the same IPC 494 case.

 

pl guide.

Shantilal Pandya ( Advocate)     08 May 2014

It is not necessary to assign a separate miscelleneous case Number to such an application if it is given in a pending case , it can be identified as an exhibit  number in the pending case

1 Like

legal problems (PROPER SOLUTION EFFORTS FOR COMPLEX PROBLEMS. youract@gmail.com)     08 May 2014

So even at this stage make a paper book and  file a separate case u/s 340 for perjury if it is within limitation.

 

If not request the court to send relevant application for registration as separate case.

 

Contempt petition and perjury petition does not have much history so normally people give applications in the same case which is not effective and it dies down in other papers.

 

Once it is separate case regular steps will have to be taken by both parties so it can not remain idle.

 

Regarding provision in CRIMINAL MANUAL it is not  required since the civil manual defines it as CRPC 340 / 341.

 

WE DO IT AS ROUTINE AND GET EXCELLENT RESULTS  .

1 Like

Shantanu Wavhal (Worker)     08 May 2014

some imp. case laws wrt crpc 340 : 


[ 1 ]

Supreme Court of India

Pritish vs State Of Maharashtra & Ors on 21 November, 2001

CASE NO.: Appeal (crl.) 1188 of 2001

Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged.

The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the magistrate for initiating prosecution proceedings.

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Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. In M.S. Sheriff and anr. vs. State of Madras and ors. (AIR 1954 SC 397) a Constitution Bench of this Court cautioned that no expression on the guilt or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into.

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..... We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. We have come across decisions of some other High Courts which held the view that the persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry. {vide M. Muthuswamy vs. Special Police Establishment (AIR 1985 Criminal Law Journal 420)}.(Page 4, 5)

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[ 2 ]

Supreme Court of India

K. Karunakaran vs T. V. Eachara Warrier on 16 November, 1977

Equivalent citations: 1978 AIR 290, 1978 SCR (2) 209

Whether, suo moto, or on an application by a party under section 340(1) Cr. P.C., a Court having been already seized of a matter may be tentatively of opinion that further action against some, party or witness may be necessary in the interest of justice. In a proceeding under section 340(1) Cr.P.C. the reasons recorded in the principal case, in which a false statement has been made, have a great bearing and indeed action is taken having regard to the overall opinion formed by the Court in the earlier proceedings.

At an enquiry held by the court under section 340(1) Cr.P.C., irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if un-rebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. The party may choose to place all its materials before the court at that stage, but if it does not, it will not be estopped from doing so later in the trial, in case prosecution is sanctioned by the court.


[ 3 ]

Supreme Court of India

S.P Chengalvaraya Naidu vs Jagannath on 27 October, 1993

Equivalent citations: 1994 AIR 853, 1994 SCC (1) 1

..... “Fraud avoids all judicial acts, ecclesiastical or temporal” observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

5. ..... We do not agree with the High Court that “there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. 

..... The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court-process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.

6. ..... A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage.


[ 4 ]

Supreme Court of India

Chandra Shashi vs Anil Kumar Verma on 14 November, 1994

Equivalent citations: 1995 SCC (1) 421, JT 1994 (7) 459

..... The stream of administration of justice has to remain unpolluted so that purity of court’s atmosphere may give vitality to all the organs of the State. Polluters of judicial firmament are, therefore, 424 

required to be well taken care of to maintain the sublimity of court’s environment; so also to enable it to administer justice fairly and to the satisfaction of all concerned.

2. Anyone who takes recourse to fraud, deflects the course of judicial proceedings; or if anything is done with oblique motive, the same interferes with the administration of justice. Such persons are required to be properly dealt with, not only to punish them for the wrong done, but also to deter others from indulging in similar acts which shake the faith of people in the system of administration of justice.

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8. To enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, prevarication and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in courts when they would find that (truth alone triumphs) is an achievable aim there; or (it is virtue which ends in victory) is not only inscribed in emblem but really happens in the portals of courts. 

9. The aforesaid thoughts receive due support from the definition of criminal contempt as given in Section 2(c) of the Act, according to which an act would amount be so if, inter alia, the same interferes or tends to interfere, or obstructs or tends to obstruct the administration of justice. The word ‘interfere’, means in the context of the subject, any action which checks or hampers the functioning or hinders or tends to prevent the performance of duty, as stated at p. 255 of Words and Phrases (Permanent Edn.), Vol.

22. As per what has been stated in the aforesaid work at p. 147 of Vol. 29 obstruction of justice is to interpose obstacles or impediments, or to hinder, impede or in any manner interrupt or prevent the administration of justice. 1 (1742) 2 Atk 469: 26 ER 683

2_ 1974 AC 273, 302: (1973) 3 All ER 54, 66: (1973) 3 WLR 298

426

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Now, if recourse to falsehood is taken with oblique motive, the same would definitely hinder, hamper or impede even flow of justice and would prevent the courts from performing their legal duties as they are supposed to do.

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12. ..... What emerges from this decision is that if a person does anything to defraud the court, he commits its contempt.

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13. ..... It was however added that if the attempt were to deceive by disguising the true nature of the claim, the same would be contempt.

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14. The legal position thus is that if the publication be with intent to deceive the court or one made with an intention to defraud, the same would be contempt, as it would interfere with administration of justice. It would, in any case, tend to interfere with the same. This would definitely be so if a fabricated document is filed with the aforesaid mens rea. In the case at hand the fabricated document was apparently to deceive the court; the intention to defraud is writ large. Anil Kumar is, therefore, guilty of contempt.

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16. ..... In our view, such a sentence would not be conducive to 5 (1991) 3 SCC 600:1991 SCC (Cri) 897

6 (1993) 2 SCC 533

7 1994 Supp (3) SCC 509 : JT (1994) 6 SC 584 428

the larger cause of maintenance of purity in the portals of court inasmuch as if a fabricated document with oblique motive can be filed in the Apex Court, a serious view for the same has to be taken to maintain a modicum of fairness in courts below. This apart, the increasing tendency of taking recourse to objectionable means to get a favourable verdict in the courts has to be viewed gravely to deter the large number of persons approaching courts from doing so. Such a tendency is required to be curbed, which requires somewhat deterrent sentence.

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[ 5 ]

Bombay High Court

Suresh Malappa Shetty vs Special Recovery Officer And Ors. 

on 23 October, 2002

Equivalent citations: 2003 (4) BomCR 745, 2003 (3) MhLj 248

“Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order.”

(Page 10)

[ 6 ]

Bombay High Court

Sk. Hasan Sk. Khannu Rayaliwale vs State Of Maharashtra on 3 June, 2003

Equivalent citations: I (2004) DMC 134

16. ..... When the prosecution wants to prove the guilt of the accused by circumstantial evidence, it is necessary to establish that the circumstances from which the conclusion has drawn, should be fully proved; the circumstances should be conclusive in nature; all the facts so established, should be consistent only with the hypothesis of the guilt and inconsistent with the innocence; and the circumstances should exclude the possibility of guilt of any person other than the accused. In order to justify an inference of guilt, the circumstances from which such an inference is sought to be drawn, must be incompatible with the innocence of the accused. The cumulative effect of the circumstances must be such as to negate the innocence of the accused and to bring home the offence beyond any reasonable doubt. Where the accused on being asked, offers no explanation or the explanation offered is found to be false, then that itself forms an additional link in the chain of circumstances to point out the guilt. .....


[ 7 ]

Supreme Court of India

Re: Suo Moto Proceedings Against ... vs Unknown on 12 May, 2001

Equivalent citations: AIR 2001 SC 2204, 2001 CriLJ 2611, 2001 (4) SCALE 199

15. Court are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon the false evidence particularly in cases, the adjudication of which is depended upon the statement of facts. if the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.

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17. 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, concededly let lose 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 service, effective action is the need of the time. The present case is no exception to the general practice being followed by many of the litigants in the country.

18. Keeping in view the facts and circumstances of this case, the record of proceedings in Suo Motu Contempt Petition (Criminal) No.5 of 2000 and Writ Petition No.77 of 2001, we are prima facie satisfied that the respondent herein, in his affidavit filed in support of the writ petition (for the purposes of being used in the judicial proceedings, i.e. writ petition), has wrongly made a statement that the age of Dr. Justice A.S. Anand has not been determined by the President of India in terms of-Article 217 of the constitution. We are satisfied that such a statement supported by an affricative of the respondent was known to him to be false which he believed to be false and/or atleast did not believe to be true. It is not disputed that an affidavit is evidence within the meaning of Section 191 of the Indian Penal Code and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC. The respondent herein, being legally bound by an oath to state the truth in his affidavit accompanying the petition is prima facie held to have made a false statement which constitutes an offence of giving false evidence as defined under Section 191 IPC, punishable under Section 193 IPC.


[ 8 ]

Supreme Court of India

Mahila Vinod Kumar I vs State Of Madhya Pradesh on 11 July, 2008

SPECIAL LEAVE PETITION (CRL.) NOS. OF 2008 (CRIMINAL MISC. PETITION NOS.8515-8516 OF 2008)

10. The evil of perjury has assumed alarming propositions in cases depending on oral evidence and in order to deal with the menace effectively it is desirable for the courts to use the provision more effectively and frequently than it is presently done.

Shantanu Wavhal (Worker)     22 August 2014

civil manual - chap xix

criminal manual - chap xxx

Amit jande (Partner)     03 April 2016

Court has order to file miscleious judicial case as I have applied u/s 340 crpc

now after filling of Miscellenous judicial case can opposite party file a writ petition at this stage in high court and what is the limitation for filling the same.

Rohin (Officer)     21 February 2017

Hi My query is Family court passed an order against the husband (petitioner) that he has to pay 5000/- as advocate fee This amount should be transferred in the bank account of the wife (respondent ) With in 10 days from the date of order Further the petition was also disposed off on the first hearing.. Now the problem is that Petitioner after 4months has to transferred the amount What is the remedy in this ???? It will be a great help..

(Guest)
Originally posted by : Rohin
Hi
My query is
Family court passed an order against the husband (petitioner) that he has to pay 5000/- as advocate fee
This amount should be transferred in the bank account of the wife (respondent )
With in 10 days from the date of order

Further the petition was also disposed off on the first hearing..

Now the problem is that
Petitioner after 4months has to transferred the amount

What is the remedy in this

????
It will be a great help..

What is that you want to ask.  Agar English nahi aati toh Hindi mein poochlo


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