Gujarat High Court
Bhupendra S Patel vs Nitaben J Patel & ... on 5 May, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/1390/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1390 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BHUPENDRA S PATEL....Appellant(s)
Versus
NITABEN J PATEL & 1....Opponent(s)/Respondent(s)
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Appearance:
PARTY-IN-PERSON, ADVOCATE for the Appellant(s) No. 1
MR. BAKUL S PANCHAL, ADVOCATE for the Opponent(s)/Respondent(s) No.
1
MS. MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 5/05/2014
Page 1 of 11
R/CR.A/1390/2011 JUDGMENT
ORAL JUDGMENT
1. The present Appeal is filed by the Appellant - Bhupendra S. Patel, who appears as party-in-person under Section 341 of the Code of Criminal Procedure, 1973 challenging the impugned order passed below (Lodging) No. 51 of 2004 by the learned Principal Judge, City Civil and Sessions Court, Bhadra, Ahmedabad on the grounds stated in the Appeal. It is prayed in the present Appeal:
"Your Lordship be pleased to call for the record & proceeding of appeal with lodg. no.51/04 from the City Civil Court, Bhadra, at a'bad & be pleased to quash & set aside the impugned order dtd. 30.6.2011 passed by City Civil Court a'bad over application vide. Exh.99 & the lower court may be directed to file said complaint as per para 17(A&B) or otherwise a complaint may be filed by this Hon. Court as also having jurisdiction to do so against proposed accuses of application vid. Exh.99 in said appeal."
2. The facts of the case briefly stated are that the aforesaid Civil Appeal (Lodging) No.51 of 2004 is filed by one Kalpesh Patel as a legal representative of the deceased Jayandra Patel, Proprietor of Jayandra Chem-Dye. Vatva in which the present appellant who is also the brother of the deceased Jayendra Patel made an application under Section 340 read with Section 195 of Cr.PC for the direction that the Civil Suit No. 4391 of 1998 filed by the deceased Jayandra Patel for recover of Rs.263 lacs against the GIDC where the Respondent Nitaben widow Page 2 of 11 R/CR.A/1390/2011 JUDGMENT has filed the affidavits which are false and fabricated. It is contended that Nitaben has taken up the proceedings including the application Exh.83 for fabrication of a will. It is also contended that as Nitaben feared that the application Exh.83 is likely to be rejected and she may not get any relief in the civil court and she may also have to face the consequences, she made up a mind to trap the present appellant in a criminal proceedings and has filed a criminal case referring to the factual background and the family disputes. It is contended that the application Exh.83 require exercise of discretion under Section 340 read with Section 195 of Cr.PC.
3. Heard Shri Bhupendra Patel, party-in-person at length. He has referred to the various papers in the documents to substantiate his contention with regard to the submission that the court below has committed an error in not exercising the discretion under Section 340 read with Section 195 of Cr.PC. Shri Bhupendra Patel, party-in-person submitted that as the false documents are sought to be filed and relied upon it amounts to tampering of the administrative of justice. He has referred to the provisions of Section 340 of Cr.PC. The provisions of Section 340 of Cr.PC referred to, "Provisions as to offences affecting the administration of Justice" - "Procedure in cases mentioned in Section 195". He submitted that as provided under Section 195 Cr.PC the procedure under Section 304 Cr.PC is required to be followed when the complaint is filed by any Page 3 of 11 R/CR.A/1390/2011 JUDGMENT person. Shri Bhupendra Patel, party-in-person tried to submit that the power would be exercised by the court on the basis of any application made by any one and the court on the basis of such application is required to take further steps which has not been done. He emphasized that the hearing or the opportunity of hearing is not necessary to the other side and therefore at that stage, the court below has committed an error. He referred to the order below Exh.1 and Exh.99 in Civil Appeal (Lodging) No.51 of 2004 (impugned order) and submitted that there was a specific case for the proceedings under Section 340 read with Section 195 of Cr.PC and the court below ought to have considered the background of the facts with regard to the will executed by deceased Jayendra Patel. He tried to emphasize referring to the application Exh.83 that it was tampered and there is some manipulation which require a closure scrutiny. He referred to Civil Appeal (Lodging) No.51 of 2004 as well as Civil Suit No. 4391 of 1998 and other papers at length to support his submission with regard to the manipulation or the tampering in the application. He also made the submissions referring to the other matter being Criminal Appeal No.897 of 2013 with regard to the false affidavit referring to the documents mentioned therein and submitted that the impugned order is erroneous and therefore the same may be quashed and set aside or it may be remanded fback or deciding afresh.
Page 4 of 11
R/CR.A/1390/2011 JUDGMENT
4. Shri Bhupendra Patel, party-in-person has submitted that once prima facie it is shown that there is a tampering with the record resulting in the offence under Section 195 Cr.PC the court must follow the procedure under Section 340 Cr.PC and make a preliminary inquiry. He submitted that at that stage no notice or hearing is required to be given to the other side. He submitted that as the court has not followed that procedure the order by which the application filed by him is dismissed for default is erroneous. He therefore submitted that the appeal may be allowed and the impugned order below Exh. 1 and Exh.99 may be quashed and the matter may be remanded back for fresh consideration.
5. Shri Bhupendra Patel, party-in-person has referred to and relied upon the judgment of the Hon'ble Apex Court reported in (2005) 4 SCC 370 - Iqbal Singh Marwah and Anr. v. Meenakshi Marwah And Anr. and also the judgment of the Hon'ble Apex Court reported in AIR 1998 SC 1121 - Sachida Nand Singh v. State of Bihar. He has also referred to the judgments of various High Court including the judgment reported in 1997 CRI.L.J 816 (Kerala High Court) - Hose Kuruvinakunnel v. A.T.Jose and also the judgment reported in 1982 CRI.L.J. 909 (Calcutta High Court) - Bibhuti Bhusan Basu v. Corporation of Calcutta and Ors. etc.
6. Learned APP Ms. Monali Bhatt has assisted the court and has made a reference to the papers and background of the facts as Page 5 of 11 R/CR.A/1390/2011 JUDGMENT well as the provisions of Section 340 read with Section 195 Cr.PC. Learned APP Ms. Monali Bhatt submitted that as could be seen from the background of the facts that even the widow had to file a complaint with regard to the forge Power of Attorney created and there is a criminal complaint with regard to the forge will. Learned APP Ms. Bhatt therefore submitted that the court below has considered the relevant aspects while deciding the application Exh.33-34 (chamber summons) in Civil Suit No. 4391 of 1998 with reference to the same grievance for exercise of powers under Section 340 read with Section 195 Cr.PC. It was submitted that the provisions of Section 340 Cr.PC refers to the procedure which is required to be followed when the complaint under Section 195 of Cr.PC is made. Learned APP Ms. Bhatt submitted that it gives discretion to the court on prima facie examination of the material to proceed further in a given case. She therefore submitted that the impugned order therefore cannot be said to be erroneous and such a power cannot be abused for personal vendetta.
7. In view of the submissions and having regard to the background of the facts which have been referred to by Shri Bhupendra Patel, party-in-person at length as stated above, require a close scrutiny of papers in context of provisions of Section 340 read with Section 195 Cr.PC.
8. As it transpires from the language employed in provisions of Section 340 Cr.PC it refers to the procedure which is required to Page 6 of 11 R/CR.A/1390/2011 JUDGMENT be adopted for the purpose of Section 195 Cr.PC. It provides that if the application is made and if the court is of the opinion that it is expedient in the interest of justice that an inquiry should be made it may make an inquiry in respect of a document or the evidence and it is only if the court comes to the conclusion as stated herein above may take appropriate course as provided under Section 340 read with Section 195 Cr.PC. Thus, it is a enabling provision and the court before exercising such discretion has to reach such satisfaction that it is expedient or desirable in the interest of justice to exercise such power. The word "expedient" has been considered in a judgment reported in 1988 (3) Crimes 330 - Syed Asadullah Kazmi v. Additional Magistrate and Anr. where it has discussed with regard to the provisions and the scope of exercise of such discretion. As it is evident before such discretion could be exercised the court has to satisfy itself that it is expedient or desirable in the interest of justice that an inquiry could be made. Again when a complaint is filed the court is not required to straightway make a order of inquiry but has to reach the satisfaction as required under law. It is only if the court is satisfied it may proceed to make an inquiry in only glaring cases of deliberate falsehood. It is therefore clear that these provisions are not intended or meant for satisfying the personal feelings or vindictiveness or fulfilling the personal vendetta in a family dispute. Again, the Hon'ble Apex Court Page 7 of 11 R/CR.A/1390/2011 JUDGMENT has time and again expressed a word of caution making it clear that the mandatory procedure is required to be followed as a safeguard before such power could be exercised. In other words the word of caution has been expressed that the court on receiving an application under Section 340 Cr.PC is not required to proceed to issue a notice straightway. In other words the court will have to act in the interest of justice when the complaint is received. A useful reference can be made to the judgment of the Hon'ble Apex Court reported in AIR 2003 SC 541 - N.Natarajan v. B.K.Subba Rao. Again the provisions of Section 195 Cr.PC starts with negative language that "no court shall take cognizance" and then it proceeds to lay down the condition which are held to be mandatory as observed by the Hon'ble Apex Court in a judgment reported in AIR 2010 SC 3718 = (2010) 9 SCC 567 - C.Muniappan and Ors. v. State of Tamil Nadu. It has been observed:
"The object of this provision is to provide for a particular procedure in a case of contempt of the lawful authority of the public servant...........................The legislative intent behind such a provision has been that an individual should not face criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition and to save the time of the criminal courts being wasted by endless prosecutions. This provision has been carved out as an exception to the general rule contained under Section 190 CrPC that any person can set the law in motion by making a complaint, as it prohibits the court from taking cognizance of certain offences until and unless a complaint has been made by Page 8 of 11 R/CR.A/1390/2011 JUDGMENT some particular authority or person."
9. Thus, the word of caution has been expressed before such powers could be exercised. In other words, it refers to the satisfaction to be reached by the court based on a preliminary inquiry or examination of material. The court has to first reach to the satisfaction that "it is expedient and in the interest of justice". Therefore, as discussed herein above and it is revealed from the background and genesis of the entire case it is a family dispute resulting in a different litigations and the present appeal seeking prayer for exercise of such discretion or the power under Section 340 read with Section 195 Cr.PC cannot be readily accepted.
10. A useful reference can also be made to the judgment of the Hon'ble Apex Court reported in (2002) 1 SCC 253 - Pritish v. State of Maharashtra and Others.
11. Though the submissions have been made by Shri Bhupendra Patel - Party-in-person at length referring to the background regarding the execution of a will as well as other proceedings, alleged false affidavit filed by Nitaben contending that the genuineness of the will is not challenged before the competent court and it has to be challenged on the basis of will is required to be considered by the competent court / trial court. It cannot be either way considered in the proceedings before this Court and the genuineness or otherwise of the will could be considered by the appropriate court and what would be the Page 9 of 11 R/CR.A/1390/2011 JUDGMENT consequences if the genuineness of the will is not challenged before the appropriate court is again a matter which can be considered by the trial court. On one hand the appellant claims the right based on the will contending that it is genuine and it has not been challenged by the other side. On the other hand the will has been disputed though the suit may not have been filed the criminal complaint is filed. Therefore the moot question is that the claim made by Shri Bhupendra Patel, Party- in-person on the basis of will which has been resisted by the Respondent contending that the forge will has been created has to be decided on its own merits on the basis of the evidence by the competent court. It is also required to be mentioned that Shri Bhupendra Patel, party-in-person has earlier also filed an application raising a preliminary objection even for the notice issued by the High Court (Coram:
Z.K.Saiyed,J) which has also been considered and decided vide order dated 10.1.2014.
12. It is in this background having regard to the provisions of Section 340 read with Section 195 of Cr.PC as well as the observations made by the Hon'ble Apex Court as discussed above with regard to the scope of exercise of power and before such power could be resorted the satisfaction as is required to be reached by the court has to be considered depending upon the facts of the case. In the facts of the case therefore it cannot be said that the order passed by the court below is Page 10 of 11 R/CR.A/1390/2011 JUDGMENT erroneous.
13. It is required to be mentioned that though Shri Bhupendra Patel, party-in-person has referred to and relied upon the judgment of the Hon'ble Apex Court reported in AIR 2010 SC 812 - Mahesh Chand Sharma v. State of U.P. and Ors. it would on the contrary suggest that the limit with regard to the jurisdiction has been stated and the caution which is required to be exercised before resorting to the provisions of Section 340 read with Section 195 Cr.PC are clearly spelt out in the said judgment. Similarly the reliance placed by Shri Bhupendra Patel, party-in-person referring to the earlier judgment including the judgment reported in 2009 Cr.L.J. 163 and other judgments of the High Court will have to be considered in the background of the facts of the case.
14. Therefore, in view of the discussion made herein above the present Appeal deserves to be dismissed and accordingly stands dismissed.
(RAJESH H.SHUKLA, J.) JNW Page 11 of 11