Amarsang Nathaji As Himself And As Karta ... vs Hardik Harshadbhai Patel And Ors

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. 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.

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.

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. 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. 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. 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. There shall be no orders as to costs.

November 23, 2016.