A few days back when H. O. Gupta Sir (former judicial officer) had come to Kanpur, he had given a detailed presentation on 340 CrPC to Daaman members. On our request, he had drafted a blog for the same. Below here is the reproduction of his draft, please feel free to use and share..
Must for sincere litigants, especially in matrimonial cases
It will be in the interest of innocent husbands & their family, as also in the interest of justice, to file an application u/s 340 Cr.P.C. r/w section 195(1)(b) Cr.P.C. before the Court dealing with the main case, immediately after it comes to the notice that a particular statement made by the wife or evidence led in her application or complaint or petition is false or forged and is intentionally made to procure favourable orders from the Court.
The purpose of section 340 Cr.P.C. is to provide safeguards against vexatious (trouble/harassment) and frivolous (ill-conceived/thoughtless) prosecution {Indraprastha Power Generation V/s Faheen Beg passed by Delhi H.C. in LPA No. 8/2015 & CM No. 385/2015}
Section 340 Cr.P.C. states that when upon an application made to it or otherwise, if any court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence mentioned in section 195(1)(b) Cr.P.C., which appears to have been committed in or in relation to any proceeding in that Court or in respect of documents produced or given in evidence in a proceeding in that Court, such Court may after preliminary enquiry, if any, as it thinks necessary, record a finding to that effect & make complaint in writing to a Magistrate First class having jurisdiction and take sufficient security for the appearance of the accused before that Magistrate and bind over any person to appear and give evidence before such Magistrate.
The said Magistrate shall, not withstanding anything contained in chapter XV of Cr.P.C., deal with the case as if it was instituted on a Police report.
Ingredients of section 340 Cr.P.C. are analysed as under:
The words viz “upon an application made to it or otherwise” would mean that:
The application can be made by an affected person or even by a stranger.
The word ‘otherwise’ would mean that if any offence listed in section 195(1)(b) Cr.P.C. comes to notice of the Court by any means and shall include suo-moto action by the Court.
The application made u/s 340 Cr.P.C. to a Court is merely a means of drawing attention of that Court. It might be anonymous if sufficiently precise & definite. It is the duty of the Court to take suitable action in proper cases whenever the matter comes to its notice. Accordingly, an order dismissing an application for non appearance, is improper.
The words viz “it is expedient in the interest of justice” that an enquiry should be made into the offence would mean that:
It is necessary in the interest of justice to initiate action for the alleged offence(s).
Expediency is normally judged not by weighing the magnitude of injury suffered by the person affected by forgery or forged document but having regard to the effect or impact such commission of offence upon the administration of justice {Indraprastha Power Generation Case Supra}
In case, the alleged offence does not affect the administration of justice i,e any false averment/evidence does not affect the order meaning that it does not lead to an erroneous order, the court would not initiate any action u/s 340 Cr.P.C. It would, therefore, be necessary to establish as to how a particular false averment/evidence or forged document shall lead to erroneous order affecting the administration of justice to the serious prejudice to the opposite party. It would also be necessary to bring out that it will result in failure of justice if those, making false averment, giving false evidence on affidavit or committing forgery to procure favourable order, are not proceeded against, as it would encourage others to indulge in similar manner, seriously affecting the administration of justice.
The words viz “appears to have been committed” would mean that the court is only prima facie required to come to the conclusion that the particular alleged offence has been committed.
The words viz “may after preliminary enquiry, if any, as it thinks necessary” would mean that:
It is not mandatory for the Court to hold preliminary enquiry or to issue notice to the other party, if based on material on record, it can record the necessary findings.
Preliminary enquiry does not mean regular enquiry. Based on undisputed facts/documents on record, and after seeking clarifications, if necessary, court is competent to record its findings & make a complaint.
The word may would connote shall as once the court prima facie comes to the conclusion that any offence as contained in section 195(1)(b) Cr.P.C. has been committed & it is expedient in the interest of justice after preliminary enquiry as may be necessary, it is bound to make a complaint.
The words viz Magistrate Shall deal with the case as if it was instituted on a police report, would mean that the Magistrate on receiving the report shall proceed as a warrant case u/s 238 to 243 Cr.P.C. {Pritesh V/s State of Maharashtra AIR 2002 SC 230 & Gujrat V/s Sharda decided on 26-03-12 by H.C. of Gujrat}
Section 195(1)(b) Cr.P.C. bars the victims of a crime to file complaint relating to the offences committed in or in relation to any proceedings in any court including to commit or attempt to commit or the abetment to the offences contained therein except on a complaint in writing to that court, or to some other court to which that court is subordinate, by filing an application u/s 340 Cr.P.C. Various section of I.P.C. contained in section 195(1)(b) of Cr.P.C., most relevant to the matrimonial cases for filing application u/s 340 Cr.P.C., are briefly stated below.
193 I.P.C. Intentionally making a false statement or intentionally fabricating false evidence, is punishable with imprisonment upto 7 years & fine.
196 I.P.C. Using or attempting to use as true, evidence knowing it to be false or fabricated, is punishable with imprisonment upto 7 years & fine.
199 I.P.C. Making false statement made in declaration which is by law receivable as evidence, is punishable for imprisonment upto 7 years & fine.
200 I.P.C. Using as true such declaration knowing is to be false, is punishable for imprisonment upto 7 years & fine.
205 I.P.C. False personation for purpose of act or proceeding in a suit or prosecution, is punishable with imprisonment upto 3 years or with fine or both.
209 I.P.C. Fraudulently or dishonestly or with intent to injure or annoy any person or makes in a court any claim which he knows to be false, is punishable with imprisonment upto 2 years & fine. Attempt to commit offence under this section read with section 51 I.P.C. is punishable for 1/half of the term.
211 I.P.C. False charge of offence made with the intent to injure, institutes any criminal proceeding or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceedings or charge, is punishable with imprisonment for a term of 2 years of fine or both. However, if such proceedings or charge is punishable with imprisonment of 7 years or more that person shall be punishable with imprisonment of 7 years.
228 I.P.C. Intentionally insulting or causing interruption to any public servant sitting in judicial proceedings, is punishable with simple imprisonment which may extend upto 6 months or fine upto Rs. 1,000/- or both.
463 I.P.C. Whosoever makes any false document or false electronic record or part of a document/electronic record, with intent to cause injury or to support a false claim or title or supports false claim or title or to cause any person to part with property or to enter into any express or implied contract or with the intent to cause fraud or that fraud may be committed, commits Forgery. Such persons shall be punishable with prisonment upto two years or fine or both.
471 I.P.C. Whosoever fraudulently or dishonestly uses as genuine any document or electronic record, which to believes to be forged, shall be punishable with imprisonment upto two years or fine or both.
Following provisions of law may be relevant to the case(s) filed under section 340 Cr.P.C.
An application u/s 340 Cr.P.C. is required to be registered as Miscellaneous Judicial Case. {T. Dhina Karan V/s V. Ranganathan Crl.O.P. No. 6358 of 2010 decided by Madras H.C. on 05-10-17}
A close reading of section 340(1) Cr.P.C. (based upon an application made to it or otherwise), as also the laid down law, it is apparent that the concerned court can suo-moto initiate action u/s 340 Cr.P.C., if based on material on record, it comes to the conclusion that crime has been committed or to uphold the dignity & prestige of the Court {Dharumal AIR 1940 SC 133and Jamuna AIR 1934 p 536}
An application u/s 340 Cr.P.C. is merely a means of drawing attention of the Court. It is the duty of the Court to take suitable action whenever the matter comes to its notice & therefore presence of an applicant for drawing the attention of the Court to any of the offence contained in section 195(1)(b) Cr.P.C., is not necessary {Jwala AIR 1940 L 526}
If the Court doens not file a complaint, it would lead to situation when the victim of the crime is rendered remediless as he is barred u/s 195 Cr.P.C. to himself file a complaint u/s 190 (1)(a) {Iqbal Singh V/s Meenakshi Marwaha 2005, 4 SCC 370}
Law provides for filing an application even by a stranger, Second application can also be filed on dismissal of an earlier application {N. Natranjan V/s B.K. Subha Rao, AIR 2003 SC 541; Bhagwan Das AIR 1936 N 156 and Hare Krishna, AIR 1929}
It is not mandatory for the Courts to provide opportunity to the opposite party/ would be accused against whom prosecution proceeding is to be initiated. Further, the opposite party has no right to be heard before the Court initiates prosecution {Pratesh V/s State of Maharashtra AIR 2002 SC 34 Ashok Leyland V/s State of Tamil Nadu, AIR 2004 SC 2836 and Regional Manager Central Bank of India V/s Madhulika Guru Prasad Dahir, 2008, 13 SCC 170}
Also, section 340 does not provide for notice to the person intended to be proceeded against {NAZAD AIR 1937 (P)}. Further, the person cannot claim for cross examination of witness {Ganeshwar AIR 1921 P 121} Even though no notice is prescribed, it is desirable to give opportunity to show cause {Liaqat Hussain V/s Vinay Prakash AIR 1946, All 156}. But when the Court suo moto proposes to prosecute a person it has to issue show cause, {AIR 1970 Ker-5}
The words “appears to have been committed”, appearing in section 340 Cr.P.C., show that Courts are not required to express any opinion on the guilt or innocence of the party against whom complaint is proposed to be made but there has not to be only prima facie material before the Court to indicate that the offence complained is likely to have been committed {R.P. Kapoor V/s Pratap Singh Kairon, AIR 1966 All 66}
Constitutional Bench of Hon’ble S.C. has held that no expression of guilt or innocence of the person should be made by the Court while passing order u/s 340 Cr.P.C. as the Courts at this stage are not to give finding whether an offence was committed & who committed the offence. The scope is confined to see whether based on available material, the matter requires enquiry by a criminal Court and that it is expedient in the interest of justice to have it enquired into {M.S. Sherrif V/S State of Madras, AIR 1954 SC 397}
The Court must be satisfied that there is prima facie case of deliberate false hood on matter of substance & there is reasonable foundation of charge and also it is expedient in the interest of justice to file complaint {Chajoo Ram V/s Radhey Shyam AIR 1971, 56, 1367}
In the enquiry under section 340(1), the only question to be determined is whether Prima facie case has been made out. {K, Karuna Karan V/s Eachha Warrier, AIR 1978 SC 290}
A Preliminary inquiry, before making a complaint, is neither compulsory nor essential. It may be held if considered necessary by the Court, {Gopal Chandra Mandal V/s State AIR 1957 Cal 382}
The Preliminary enquiry will be made if Court considers it essential to establish Prima facie case {Lok Pal 22 Crilj 143}. However, such an enquiry is not necessary if the Court has all the necessary material {Jamuna AIR 1934, P-536}. Further, such preliminary inquiry has to be made by the Court itself & no order should be based as the inquiry or the report of the Police {Gita Ram Kalsi V/s Mathura Das AIR 1951 Punj 369}
The purpose of preliminary enquiry u/s 340 Cr.P.C. is not for holding the would be accused as guilty of charge alleged to have been committed but only to establish prima facie case for enquiry by the concerned Magistrate {Pritesh V/s state of Maharashtra-ibid}.
Expediency is normally judged not by weighing the injury suffered by the person affected by forgery or forged documents but having regard to the effect or impact such commission of offence has upon the administration of justice {Indraprastha Powe Generation, ibid}. When such forged document is just a peace of evidence where voluminous evidence has been adduced & the effect of such piece of evidence on the administration of justice is minimal, the court may not consider it expedient in the interest of justice to file complaint {Indraprashta Power Generation, ibid}
It will not be necessary for the would be accused to participate in the proceeding to decide the question of expediency {Pritesh V/s state of Maharashtra ibid}
It is a settled law that every incorrect or false statement does not make it incumbent upon the Court to order prosecution unless it is in the larger interest of justice {S.V.R. Saraja V/s S.V. Mathura Prasad, Madras H.C. judgement dt. 16-06-16 in A. No. 1156-60 of 2015}
Existing of mens rea or criminal intention has to be seen before action u/s 340 Cr.P.C. {Indraprastha Power Generation ibid}
As per established Principles of Law, no one can make any averment unless he is reasonably sure about the truth of that averment. An affidavit containing false averment is a punishable crime.
The application u/s 340 Cr.P.C. is required to be disposed of in accordance with the provisions contained therein even if the wife does not press her claim based on the false affidavit in question {Sunny Bhumla V/s Shashi CRA No 197 of 2010 (O & M) P & H}
Application u/s 340 Cr.P.C. is normally considered at the time of the final decision in the main case after the proceedings are concluded because the complaint made may force the other party to give up claim or dissuade the witness from appearing before the Court under threat of Criminal prosecution or an alleged forged document may have minimal effect on the final decision of the Court {Indraprashta Power Generation ibid}
The Court is required to dispose of the application u/s 340 Cr.P.C. before deciding the main case.
The concerned Court can very well simultaneously proceed with the application & the main case & decide them accordingly {T.Dhinakaran case ibid}
Even in relation to the offences not enumerated in section 195(1)(b) Cr.P.C., if the Court is of the opinion than offence(s) have been committed in relation to th proceedings before the Court, the law does not prevent making a complaint by that Court before the competent Criminal Court, though the enquiry u/s 340 Cr.P.C. is required to be followed only in respect of offence V/s 195 (1)(b) {Kuttiah V/s Federal Bank decided by Kerala H.C. on 21-03-2006, 2006 CriLj 3541}
Hon’ble S.C. has held that if a document is forged before its production before a court, no proceedings can be initiated u/s 340 Cr.P.C. by taking into consideration that document {Iqbal Singh Mawrahas & Suchida Nand Singh’s Case}
The above ruling of Hon’ble S.C. was in respect of offences contained in section 195(1)(b)(ii). Therefore, in respect of offences contained in section 195(1)(b), this ruling would not apply. {Kuttiah V/S Fedral Bank, ibid}
Although the offence involving forgery of a document, if committed outside the Court before they were produced in the Court, would not invite proceedings u/s 340 Cr.P.C. but there can be no impediment for the police to register a case. Even that Court has powers to issue direction to the authority whose document was forged to file a complaint to the Police for thorough investigation to find out the culprits. There is also no prohibition for the Civil courts from issuing directions to any party or witness to forward a complaint to police where a serious offence of forgery is alleged. After all, forgery is a fraud & there can be no barriers to the powers of the Court to unearth the fraud & bring the culprits to book {Dhinakaran Case ibid}
Fraud is an act of deliberate deception with a design to secure something which is otherwise not due. The expression Fraud involves fur elements, deceit & the injury to the person deceived. Fraud gets proved when it is shown that false representation has been made knowingly or without belief or recklessly by {Ashok Leyland V/s State of Tamil Nadu AIR 2004 S.C., Regional Manager Central Bank of India V/s Madhulika Guru Prasad Dahir, 2008, 13 SCC 170}
Dishonestly should not be permitted to bear fruits and benefit persons who played Fraud or made Misrepresentation {Meghamala V/s G, Narasimhan Reddi, civil Appeal No. 6656 -57 of 2010 arising out of S.L.P. (c) No. 14447-48 of 2007}
Connivance- when a person knows that a wrongful act is being done or is to be done and the person either assists or being under duty to interfere, does not interfere or prevent, in that case, it is said that person has connived {K.T. V/s K, AIR 1952 Nagpur-395}
Under section 340(1) Cr.P.C., powers of a trial Court can be exercised by a Court to which the trial Court is subordinate if the trial Court has neither made a complaint nor has rejected the application before it.
False, misleading & wrong statement made by a party or his counsel to obtain a favour able order would prejudice & interfere with due course of judicial proceedings and amounts to abuse of process of Court necessitating rejection of petition & is required to be dealt with the contempt of Court. Court will be failing in its duty, if it does not reject the petition at the threshold where the petitioner makes false statement or conceals the material facts or misleads the Court.
One needs to consider filing of a criminal complaint before the jurisdictional Magistrate U/s 499 I.P.C., particularly when F.I.R. contains allegations against close relations relating to sections 376/377 I.P.C. and either there is no evidence on record or final report has been filed by the police. You may also consider to file criminal complaint under the relevant sections 193/199/211 of I.P.C. before the Jurisdictional Magistrate, when it is established that any of the averments/supporting evidence/claim made before the police/court is false & the case when such false averment/supporting evidence/claim made is not before a court.
As per ruling of Delhi H.C. based on Supreme Court judgements, trial Court shall be under contempt of Supreme Court/High Court if the trial Court fails to abide by the law laid down by Supreme Court/Concerned H.C. {NDMC V/s Prominent Ltd., 2015, 222 DLT 706 and subroto Roy Sahara V/s U of I, 2014 SCC 470}
Failure to give reasons renders a judgement unsustainable. One of the statutory requirements of Natural Justice is to give reasons, as held by Hon’ble Supreme Court {Ran Singh V/s State of Haryana- AIR 2008 1294}
It would, therefore, be essential to establish that:
The opposite part has committed one or more of the offences listed in section 195(1)(b) Cr.P.C.
There is convincing evidence in support of the said offence(s) so that the Court can come to conclusion that there is prima facie to support the offence(s) said to have been committed.
It is expedient (necessary) in the interest of justice to make complaint to the jurisdictional Magistrate as the said offence(s) have been intentionally committed to obtain favourable order from the Court & further that the false averment(s) constituting offence(s), will affect the decision making & thus the administration of justice. For example if an averment has been made that she is not gainfully employed for obtaining favourable order for grant of maintenance u/s 125 Cr.P.C., whereas the husband has produced a relevant document showing that she is gainfully employed, it is a fit case for making a complaint to the Jurisdictional Magistrate. However, if she has made a false averment which has no effect on the case, the court may not make a complaint to the Jurisdictional Magistrate as it may not be expedient in the interest of justice to make a complaint. For example An averment is made that her father-in-law is receiving pension of Rs. two lakh P.M. or has self acquired number, of immovable property. Even if it is established as false, it has no effect on grant of maintenance u/s 125 Cr.P.C. However such false & misleading averments made by any party can be dealt with the contempt of court.(d) The applicant or his relations would be seriously prejudiced by such false averments/statements. (e) It would be in the interest of justice to make complaint as the false averment(s) made are meant to mislead the Court affecting administration of justice & if not dealt with suitably, will encourage others to make such false averments resulting in burdening the Courts with frivolous petitions.
It is normally not possible for the wife to move a court without the conspiracy & the connivance of her parents and/or close relations. Therefore, proceeding against them u/s 120 B & 34 I.P.C. may be considered, for inclusion in the application u/s 340 Cr.P.C. as would be accused.
It needs to be taken into account that trial Courts are slow & reluctant to proceed against the wife u/s 340 Cr.P.C. Some of the reasons may be:
The wife has approached the Court to seek relief. But she is to be proceeded for committing a crime which may result in her imprisonment.
Once a complaint is made to the Jurisdictional Magistrate, it is extremely difficult to give relief as sought in her case, not with standing the merits in her other submissions.
Therefore, in most of the cases, the courts either reject or delay the disposal of 340 Cr.P.C. cases till disposal of main case. If finally, main case goes in favour of husband, the 340 Cr.P.C. case may not even be disposed of.
If the 340 Cr.P.C. case is rejected, the husband may consider to file recall/review petition u/s 151 & 114 C.P.C. before filing appeal before the session Court/High Court depending upon trial Court being the Magistrate Court/ Family Court. He needs to file appeal if there are no proper grounds to file recall/review petition.
If the husband has irrefutable evidence to establish his case u/s 340 Cr.P.C. & does not require any further evidence, at trial stage, he needs to repeated insist the court to immediately dispose of his application, as the delay in filing complaint shall further prejudice him as it would not timely lead to logical end.
Even if the application u/s 340 is rejected, the filing of the application & the appeal made will have favourable effect on the main case. Also, filing of application & appeal shall help in settlement of all cases on reasonable terms. Further courts cannot grant her desired relief, if the averments to support her case have been established as false in the application u/s 340 Cr.P.C.
Separate applications u/s 340 Cr.P.C. need to be filed in different cases filed by the wife containing false averment constituting a particular offence prejudicing the husband or his relations.
The application must be filed immediately after the husband has reasonable evidence to establish a particular averment as false, to his prejudice.
More than one application may be filed even in one case.
Application needs also to be filed when malicious prosecution is initiated against the relations or false claim is made against the husband’s relations in her D.V. Case or in criminal court.
Making her parents & close relations as would be accused may also be considered.
The application u/s 340 Cr.P.C. needs to be filed before an interim relief is ordered by the Court, if there is sufficient material to establish that any offence mentioned in section 195(1)(b) Cr.P.C. has been committed in her averments or is contained in her application in support of claim for interim relief.
In her application u/s 125 Cr.P.C. before a Magistrate/Family Court or under sec 12 of D.V. Act or criminal case before a Magistrate, where she or her witnesses have willfully given false evidence or have fabricated false evidence with the intention to use such evidence to support her case, in addition to filing an application u/s 340 Cr.P.C., may also press the Court for summary trial of the would be accused under section 344 Cr.P.C. The Court may be more inclined to proceed u/s 344 Cr.P.C. instead of proceeding u/s 340 Cr.P.C.
Separate applications may be fled with a prayer to dismiss her case if false, misleading & wrong statements are made by her in her application, to procure favourable order and for seeking initiation of contempt proceedings against her on his account.
If the Court wants to issue a notice to other party, husband may not take serious objection.
It may be necessary to remind the Court, if it tends to reject the application, to make a reasoned order which would be in accordance with the laid down law. Unreasoned order is in nullity & needs to be recalled U/s 151 Cr.P.C. being against the principles of Natural Justice & also against the laid down law. {Ram Singh V/s State of Haryana AIR 2008 SC 1294 & Nupur V/s CBI 2012(3) JIC 326 S.C.}
Golden Suggestions
Applications/complaints/petitions filed by the wife containing false statements/ averments/evidence/claims/documents and intentionally made to procure favourable order from the Court and the husband has cogent evidence to establish them as false, application(s) u/s 340 Cr.P.C. must be filed by the husband on the first available opportunity to ensure that:
Proper justice in the case.
Benefit of false averments/evidence is not available to her.
Reduced burden on the Courts by way of illumination of frivolous cases.
Urgent settlement of all cases on reasonable terms.
In case there is sufficient evidence to establish a particular averment/supporting evidence/claim as false and is intentionally made to procure a favourable order, you may file applications at the first available opportunity, praying to dismiss her case and for proceeding for contempt of the Court.
You may also consider to file defamation complaint u/s 499 I.P.C. immediately after she files reply or you file rejoinder if defamation can be established from the material an record, before the Magistrate preferably at your place. Your relations may also file defamation cases after it is established by them or by the police or by the Court that the allegations against them are false particularly where the allegations relate to section 376/377 I.P.C.
Disclaimer:
This write up is for general information of all innocent husbands & his close relatives who are victims of false cases. The information contained should not be constrained as legal advice. The readers should check up the corrections and applicability of any suggestion/information or ruling contained in this write up by seeking independent advice, before filing any application, with reference to the facts & circumstances of his case as also the applicability of law in his case keeping in view the latest rulings of the Hon’ble Supreme Court & the Hon’ble High Courts.
(Adopted from the original post here, by H. O. Gupta Sir)