Delhi District Court
Sh. Ashok Malhotra vs State (Govt. Of Nct Of Delhi) on 18 October, 2018
IN THE COURT OF Dr. KAMINI LAU: SPECIAL JUDGE
(PC ACT), CBI01, CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
Crl. Revision No. 89/2018
Registration No. 672/2018
CNR No. DLCT01012350/2018
Sh. Ashok Malhotra
S/o Sh. G.R. Malhotra
R/o Opp. Shop No. 739,
Old Lajpat Rai Market,
Delhi - 110001
......... Revisionist
Versus
State (Govt. of NCT of Delhi)
Respondent
Date of Institution: 22.09.2018
Order Reserved on: 16.10.2018
Order Pronounced on: 18.10.2018
JUDGMENT:
(1) This Criminal Revision impugns the order dated 22.06.2018 passed by the Ld. CMM, Delhi in CC No. 1/1 (New Case No. 523981/2016) under the title 'State Vs. Ashok Malhotra', by way of which the Ld. Trial Court framed the charge under Section 193/196/199 Indian Penal Code against the Revisionist/ accused Ashok Malhotra.
Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 1 of 26 (2) The brief facts of the case are that a Civil Suit for permanent injunction was filed in the name of Sh. Bhagwan Singh S/o Sh. Harpal Mal through his attorney Sh. Ashok Malhotra (i.e. the present revisionist) against the defendant no.1 Sh. Raja Ram Dhir and defendant no.2 Municipal Corporation of Delhi. During the course of proceedings, it was informed to the Court that the plaintiff Bhagwan Singh had already expired in the year 1984 itself whereas the suit was filed on 20.06.2004 and hence the Ld. Court directed the plaintiff and his attorney to appear in person. However, none had appeared for the plaintiff or the said attorney and rather, on 14.10.2004 an application was moved to withdraw the said suit but the Ld. Court proceeded to conduct an inquiry under Section 340 Cr.P.C. The said order dated 09.09.2004 was challenged before the appellate court but the appeal was dismissed holding that the suit could not have been filed by an attorney on behalf of a dead person as the attorney, if any, came to an end with the death of the Principal.
(3) The said complaint filed by the Ld. Civil Court was subsequently sent to the Court of Ld. CMM, Tis Hazari Courts, on the ground of jurisdiction and vide the impugned order dated 22.06.2018 the Ld. CMM, Delhi has framed the charges against the Revisionist/ accused under Sections 193/ 196/ 199 Indian Penal Code. Being aggrieved by the said order, the revisionist has preferred the present revision on the following grounds:
That the Ld. Trial Court has erred in holding that at the time of framing of charge the Court need not to Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 2 of 26 appreciate the evidence or to go its credibility. That the accused/ revisionist had already withdrawn the Civil Suit on the technical ground that the suit has become infructuous and there was no suit pending when an order was passed by the Ld. Civil Judge that an inquiry be made whether Sh. Bhagwan Singh was alive or dead at the time of filing the civil suit. That Sh. Raja Ram Dhir has failed to produce any document that Sh. Bhagwan Singh was not alive at the time of filing of the suit and it is Sh. R.R. Dheer who had made a false information that Sh. Bhagwan Singh had expired before the date of filing of the suit and the Ld. Civil Judge has not made any inquiry till the filing of the complaint under Section 340 Cr.P.C. and hence the Ld. Trial Court ought to have dismiss the complaint. That the Ld. Trial Cout has erred in holding that there has never been any dispute that Sh. Bhagwan Singh had already expired in the year 1984.
That the complainant Court as well as the Ld. Trial Court nowhere stated either in the complaint or in the impugned order on what basis or evidence the Court reached to the conclusion that Bhagwan Singh died in the year 1984 and wrongly held that in the affidavit filed by the revisionist/ accused before the Civil court, he never disputed the factual position that plaintiff was very much Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 3 of 26 alive as on the date of filing of the suit. That the Ld. Trial court has erred in holding that neither the attorney / revisionist appeared before the Court nor gave any specific explanation and chose to evade the court proceedings. However, the Ld. Trial Court held that the accused has filed reply in Civil Court denying all the allegations which itself is contradictory. That the Ld. Trial Court has wrongly held that the revisionist has not filed any attorney executed by Bhagwan Singh and without cogent evidence presumed on the basis of hearsay evidence that Bhagwan Singh expired in the year 1984.
That no statement was recorded by the Civil Court on the person who informed the Court that Bhagwan Singh had died in the year 1984 and even no inquiry was initiated against the revisionist.
That the Ld. Trial Court has erred in holding that Sh.
Bhagwan Singh being dead or alive are the matters which should be in the personal knowledge of the revisionist only and not the personal knowledge of the person who informed the Court.
That the Ld. Trial Court has erred in holding that the revisionist has not disclosed any date of death of Sh. Bhagwan Singh or has claimed that the said person was alive in the year 2004, whereas the entire burden should Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 4 of 26 be on the informant who brought the factum of death of BhagwanSingh to the notice of the court and not the accused/ revisionist.
That the Ld. Trial Court has passed the impugned order in a mechanical manner and has not consulted the provisions of law before passing the impugned order as the essential ingredients "Expedient in the interest of justice" was missing from the complaint. That the Ld. Trial Court has wrongly framed the charge under Section 193/196/ 199 Indian Penal Code against the revisionist/ accused without application of mind and even not considered necessary to conduct a preliminary inquiry to ascertain the date of death of Bhagwan Singh.
(4) Ld. counsel for the Revisionist has also raised the following points for consideration:
No inquiry was made as to whether Bhagwan Singh was alive or dead at the time of filing of the Civil Suit dated 20.06.2004.
Blindly believed in the words of the defendant no.1 (Raja Ram Dheer) without initiating any inquiry.
Nowhere the Complainant Court or the Ld. Trial court stated that on what basis or evidence the court reached to the conclusion that Bhagwan Singh died in the year 1984.
Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 5 of 26 Even no statement was recorded by the Civil Court of the person who informed that Sh. Bhagwan Singh died in the year, 1984.
Complaint of Ld. Civil Court as well as impugned order missed the essential ingredients providing in the position "it is expedient in the interest of justice".
Even the complaint does not contain the work "expedient in the interest of justice" nor even mentioned under what section or provision the said complaint was made or action be initiated.
(5) In order to support his averments, Ld. Counsel for the revisionists has placed his reliance upon the authorities in the case of Shir Chand vs. State of UP, 2003 Cr.L.J. 4094; Santokh Singh Vs. Izhar Hussain AIR 1973 SC 2190 and M.S. Ahlawat vs. State of Haryana, Writ Petition (Crl.) No. 573 of 1997, decided on 29.10.1999.
(6) Pursuant to the filing of the appeal, notice was issued to the respondent/ State. Ld. Addl. PP for the State has not filed any reply to the revision and has filed his written memorandum of arguments wherein it is argued that the main ground of the revisionist is that in the complaint dated 21.12.2011 the words 'Expedient in the interest of justice' are missing. It is further argued that the procedure under Section 340 Cr.P.C. is invoked when any offence affecting the Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 6 of 26 administration of justice i.e. when there is any interference in justice or false claims or statements are made before any court of law and it is not essential to mention the words 'Expedient in the interest of justice' in the complaint made under Section 340 Cr.P.C. It is argued that in the present case the Ld. Civil Judge had considered the material on record and conduct of the accused/ Plaintiff which is reflected from the detailed order dated 21.12.2011 passed by the Ld. Civil Judge. It is also argued that the conduct of the accused also finds a mention in the order dated 22.06.2018 passed by the Ld. CMM i.e. how accused made a false claim before the Court of Civil Judge and also did not appear before the court when he was asked to produce the attorney and principal Bhagwan Singh and hence, the procedure under Section 340 Cr.P.C. has rightly been followed by the Courts. It is further argued that the Ld. Trial Court has rightly held that primafacie case is to be seen in such type of cases and there is no requirement of passing a speaking order because under Section 343 Cr.P.C., the Magistrate has to deal with the complaint referred to in Section 340 Cr.P.C. as if it was instituted on a Police report. Therefore, all the offences referred to under section 195 (1)(b)(i) Cr.P.C., all falling within the purview of warrant cases, the Magistrate has to follow the procedure for trial of warrant cases under Chapter XIX Part A comparison of sections 238 to 240 Cr.P.C. In support of his submissions, the Ld. Addl. PP for the State has placed his reliance on the judgments in the case of Jagdish Prasad Vs State & Ors., CRL.M.C. 1130/2008 & CRL.M.A.4231/2008, decided on Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 7 of 26 22.02.2008; in Kuldeep Kapoor vs Susanta Sengupta, 126 (2006) DLT 149; Subrata Roy Sahara Vs. Union of India (2014) 8 SCC 470 and Sandeep Sunil Kumar Loharia vs Sumeet Ganpat Rao Bachewar & Ors. Criminal Appeal 1051/2018.
(7) I have considered the rival contentions and perused the Trial Court Record. Before coming to the grounds raised by the Ld. Counsels for the accused, the broad principles of law as laid down in various judgments, as relied upon by the parties, are briefly culled out as under:
(8) The Hon'ble Supreme Court of India in the case of R.S. Nayak Vs. A.R. Antulay reported in AIR (1986) 2045 has observed after considering the provisions of Sections 227, 239 and 245 of the Cr.P.C. that in a case the trial court was satisfied that primafacie case was made out, charge has to be framed. It has been held as under:
"....... The truth, veracity and effect of the evidence which the prosecution proposed to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally, is not exactly to be applied. At this stage, even a very strong suspicion founded upon the materials before the Magistrate which leads him to form a presumptive opinion as to existence of factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence....."
(9) In the case of B.N. Rao Vs. State reported in 1997 JCC 359 it has been specifically held that at the stage of framing of charge Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 8 of 26 the evidence need not be examined minutedly and the charge can be framed even if there is suspicion. Further, in the case of Mathura Dass & Ors. Vs. State reported in DCLR 2003 (1) Delhi 694 it has been held that:
".........the existence of primafacie case may be found even on the basis of strong suspicion against an accused....... The assessment, evaluation and weighing of the prosecution evidence is a criminal case at the final stage is on entirely different footing than it is at the stage of framing of charge........
At the final stage, if two views are possible, one which favours accused has to be accepted unlike at the stage of framing of charges, where the view favourable to prosecution has to be accepted......."
(10) The Hon'ble Supreme Court in the case of Union of India Vs. Prafulla reported as 1979 SC 366 AIR held that:
"............ At the time of framing of charges, the court has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against accused has been made out........."
(11) Further, in the same judgment the Hon'ble High Court has observed that:
".........When the material placed before the Court discloses great suspicion against the accused, the Court will be justified in framing charge. If two views are equally possible and the evidence produced gives rise to some suspicion but not grave suspicion against the accused, the judge will be Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 9 of 26 fully within his right to discharge the accused.........."
(12) It was also observed that:
".........At the time of framing of charge, the Court cannot act merely as a post office or a mouthpiece of the prosecution but is to consider the broad probabilities of the case, the total aspect of the evidence and the documents produced before the Court and any basic infirmities in the case and so on........"
(13) However, a word of caution was added in this judgment that the judge should not make a roving inquiry into the pros and cons of the matter and weigh the evidence is if he was conducting a trial.
(14) Again in the case of State of Maharashtra & ors. Vs. Som Nath Thapa & Ors, reported in 1996 (4) SCC 659 the three Judges Bench of the Hon'ble Supreme Court has observed that:
".......If on the basis of materials on record, a Court comes to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently if the Court were to think that the accused might have committed the offence, it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage........" (Para 32).
Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 10 of 26 (15) Later in the case of State Vs. S. Bangarappa reported in 2001 (1) CC Cases SC 1 the Hon'ble Supreme Court reiterated that:
"........ Time and again this Court has pointed out that at the stage of framing of charge, the Court should not enter upon a process of evaluating the evidence by deciding its worthy or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed further ........."
(16) Again in the year 2001 the hon'ble Supreme Court in the case of Kanti Bhadra Shah Vs. State of West Bengal reported in AIR 2000 SC 522, 2000 (1) ALD Cri 421 had observed that :
"......... If trial Court decides to frame charge there is no legal requirement that the trial Court should pass an order specifying the reasons as to why it opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion after considering the report and the documents and after hearing both decides that there is ground for presuming that the accused has committed the offence. It was held that a magistrate is required to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that accused had committed offence. In such a situation the magistrate is only required to frame a charge in writing against the accused......"
(17) Also in Para 12 the Hon'ble Court had observed that:
"........ There is no legal requirement that the trial Court should write an order showing the reasons Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 11 of 26 for framing of charge, why should the already burdened trial Courts be further burdened with such an extra work. Time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a magistrate is to write detailed orders at different stage merely because the counsel would address arguments at all stage, the snail pace progress of proceedings in trial Court would further be slowed down...."
(18) The Hon'ble Supreme Court again in the case of State of Orissa Vs. Debendra Nath Padhi reported as 2003 II AD (Crl) S.C. 69 observed that:
".......... If after doing so the Court comes to the conclusion that there is ground for presuming that the accused has committed an offence, then the Court shall frame charge under Section 228 of the Code, otherwise it shall discharge accused under Section 227 of the Code......."
(19) A similar view was taken by the Hon'ble High Court in the case of Subhadra Vs. State reported as 1996 JCC 665 that:
".......... At the stage of framing of charge, the Court has not to apply the same standard of test, which is applied at the time of judgment and recording finding of guilt or otherwise. At the stage, the Court has to see whether there is ground for presuming that the accused has committed the offence....."
(20) Also in the case of Ms. Soma Chakravarty Vs. State (Through CBI) reported in 2006 (1) JCC 152 (DHC) it has been held Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 12 of 26 that:
".... It is settled law that at the time of framing of charge, the Court is not required to make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial. Court is not required to make appraisal of evidence meticulously at this stage and there the material placed before the Court discloses grave suspicion against the accused which has not been property explained and indicate the involvement of the accused then it is sufficient to frame the charge......"
(21) Also in the case of Dilawar Balu Kurane Vs. State of Maharastra reported in JT 2002 (1) SC 6 it has been held that ".........It is a settled preposition of law that the judge while considering the question of framing of charge in the said Section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a primafacie case against the accused has been made out, where the material placed before the court disclose grave suspension of the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial by and large......"
(22) The Hon'ble Supreme Court had also in the case of State of Karnatka Vs. L. Muniswamy reported in AIR 1977 SC 1489 held that:
"........At the stage of framing of charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 13 of 26 of the offence by the accused...."
(23) It was held that since the framing of charge affected a person's liberty substantially, hence need for proper consideration of material warranting such order was emphasized. (24) Further, in the case of L.K. Advani Vs. CBI reported in 1997 Crl. L. J. 2559 it has been held that:
"............ Charge can be framed by the court against the accused if the material placed before it raises a strong suspicion that the accused has committed an offence. In other words, the court would be justified in framing the charges against the accused if the prosecution has sown the seed in the form of the incriminating material which has got the potential to develop itself into a fullfledged tree of conviction later on.........".
(25) While dealing with the scope of the provisions of Section 227 and 228 of Code of Criminal Procedure, Hon'ble Justice S.K. Mahajan in the case of Surender Kumar Vs. State reported in 1997 JCC 45 Delhi observed as under:
"...... While Section 227 required the Court to discharge an accused if upon consideration of the case and documents submitted therewith and after hearing submissions of the accused and the prosecution in that behalf, the Judge considers that there was no sufficient ground for proceeding against the accused. Section 228 states that if after such consideration and hearing as mentioned under Section 227, the Judge is of the opinion that there were grounds for assuming that the accused had committed an offence, he may frame charges Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 14 of 26 against the accused. Reading of the two provisions together makes it clear that at the beginning and at the initial stage of trial, the Court is not required to meticulously judge the truth, veracity and effect of evidence which the Prosecutor proposes to adduce nor any weight is attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of trail to consider in detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The Court at that stage is not to see whether there is sufficient ground for conviction or whether the trial is sure to end in the conviction of the accused and the only thing to be seen is whether there is a strong suspicion which leads the Court to think that there are grounds for presuming that the accused had committed an offence. However, the Judge while considering the question of framing of charges has undoubtedly the power to sift and weigh the evidence for limited purpose of finding out whether or not a primafacie case against the accused has been made out. The Court cannot act as a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. The primafacie case would depend upon the fact of reach case and it is difficult to lay down a rule of universal application. However, if two views are equally possible and the Judge is satisfied that the evidence produced before him give rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused...."
(26) Further, in the case of Vishwa Vibhuti Vs. CBI, decided on 06.07.2012, the Hon'ble High Court of Delhi, while relying upon Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 15 of 26 the case of Hem Chand, observed as under : "........ The issue before the Apex Court was whether any documents which the accused may rely in support of his defense could be looked into at the stage of framing of charge or not. It was held that at the stage of framing of charge, the Court will not weigh the evidence as the stage for appreciating the evidence for the purpose of arriving at a conclusion is where the prosecution was able to bring home the charge against the accused or not, would arise only if all the evidence is brought on record at the trial. Though on the basis of admitted documents the accused may be in a position to show that the charge could not have been framed against him but the accused could not rely upon some documents upon which the prosecution does not rely. The Court at the stage of framing charge exercises a limited jurisdiction and what is to be seen is whether prima facie case has been made out or not. What is also to be considered is whether a case of probable conviction for commission of an offence has been made out on the basis WP (Crl.) 870 of 2010 Page 43 of 54 of the materials found during investigation and at that stage the Court should not delve deep into the matter for the purpose of appreciation of evidence as it would ordinarily not consider as to whether the accused would be able to establish his defense, if any. In Debendra Nath Padhi the Apex Court had held that if any document is necessary or desirable for the defense of the accused, the question of invoking Section 91 at the initial stage of framing of charge would not arise since the defense of the accused is not relevant at that stage. As far as the accused is concerned, his entitlement to seek order under Section 91 would Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 16 of 26 ordinarily not come till the stage of defense. It was further held that under Section 227 Cr.P.C. what is necessary and relevant is only the record produced in terms of Section 173 of the Code and the accused cannot at that stage invoke Section 91 to seek production of any document to show his innocence......."
(27) Applying these settled principles of law to the facts of the present case, at the very Outset I may observe that it is an admitted case that on 20.06.2004 a Civil suit for Permanent and Mandatory Injunction was filed by Sh. Bhagwan Singh through his attorney Sh. Ashok Malhotra against Sh. Raja Ram Dheer under the title 'Sh. Bhagwan Singh Vs. Raja Ram Dheer' wherein an application was filed by the defendant no.1 Raja Ram Dheer under Section 151 CPC stating that the plaintiff (Bhagwan Singh) died in the year 1984. Perusal of the Trial Court Record confirms that the Ld. Trial Court had granted an opportunity to the Revisionist Ashok Malhotra to rebut the said claim of Raja Ram Dheer by either producing the Principal i.e. Bhagwan Singh in the Court or by producing the original attorney or by producing his Death Certificate with which he was non compliant. It is further admitted that an appeal was filed against the order dated 09.09.2004 by the plaintiff therein / revisionist which appeal was also dismissed and on 14.10.2004 the plaintiff represented through attorney Sh. Ashok Malhotra moved an application for withdrawal of the Civil Suit. It was only upon the failure of the revisionist/ attorney to either produce the principal or Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 17 of 26 the original attorney or to inform about the date of death of the principal the fact being within his personal knowledge, that vide order dated 21.12.2011, the Ld. ASCJ, Delhi made a separate complaint to the Ld. ACMM (North) for initiating action against Sh. Ashok Malhotra (present revisionist) pursuant to which the impugned order dated 22.06.2018 was passed by the Ld. Trial Court. (28) Secondly, this Court too at this stage while hearing the arguments at the revision stage, granted an opportunity to the revisionist Ashok Malhotra to either produce before this Court the principal Bhagwan Singh or the original attorney or his death certificate. Despite grant of the said opportunity, he has failed to place on record either the original attorney or the death certificate or to produce the principal Bhagwan Singh. The argument of the Ld. Counsel for the revisionist that the Ld. Court should have held a preliminary inquiry to ascertain the date of death of principal Bhagwan Singh, is without any merit. The fact that the principal Bhagwan Singh being dead or alive is a matter which is in the personal knowledge of the revisionist who had filed the suit in his capacity as the attorney of Bhagwan Singh. The best material available being in possession of the revisionist/ accused Ashok Malhotra, it was for him to produce the relevant documents to show that the principal Bhagwan Singh was alive in the year 2004 and it was on his authority that he (i.e. Revisionist) had filed the suit on his (i.e. Bhagwan Singh's) behalf as his attorney or to have produced the death certificate of Bhagwan Singh to show that Bhagwan Singh had Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 18 of 26 expired after filing of the suit. Having failed to disclose the date of death of Bhagwan Singh or to satisfy the Court that the principal Bhagwan Singh was alive in the year 2004 i.e. the time when the suit was filed (since if Bhagwan Singh had expired on any date prior to the filing of the suit, the attorney automatically would come to an end) the revisionist cannot be permitted to take advantage of the same by claiming that the Court did not hold any preliminary inquiry. (29) Thirdly, the narration in the entire plaint filed by the revisionist Ashok Malhotra as the attorney of Bhagwan Singh confirms that the same was in 'present tense' and not in 'past tense'. It is writ large that the assertions of the revisionist through out was as if Bhagwan Singh was alive on the date of filing of the suit and had not expired by that time. Once an opportunity had been granted to the Revisionist to confirm the date of death or to produce the principal in the court, being in the best knowledge of the said fact, the primafacie inference drawn to the contrary by the Ld. Trial Court cannot be faulted.
(30) Fourthly, coming to the argument of the Ld. Counsel for the Revisionist that the Ld. Trial Court has not explicitly used the expressed "expedient in the interest of justice", I may observe that the procedure under Section 340 Cr.P.C. is invoked when an offence when there is any interference in justice or false claims or statements are made before any court of law. It is not essential to mention the words (Expedient in the Interest of Justice) in the complaint made under section 340 Cr.P.C. In this regard, reliance is placed upon the Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 19 of 26 judgment in the case of Jagdish Prasad Vs. State & Ors. Crl. M.C. No. 1130/2008 & Crl. M.A. 4231/2001 decided on 22.02.2008 where, in a similar case the specific words Expedient in the Interest of Justice were not written in the order while initiating action under Section 340 Cr.P.C. and the Hon'ble Delhi High Court has observed that it is not essential to mention the specific words "Expedient in the Interest of Justice" and if a judge, after taking into consideration the material on record, has come to the conclusion that an offence affecting administration of justice has been committed and has asked for an action against the alleged perpetrator under relevant provision of law, then ingredients of Section 340 Cr.P.C. are complied with, which observations I quote as under:
"...... That brings us to the merits of the case. The only ground on which the learned ASJ appears to have set aside the order dated 9th September 2005 passed by the learned MM is that a definite opinion was not formed by the learned MM that it was expedient in the interest of justice to prosecute Respondent No.2 for the offence under Section 193 IPC. The learned ASJ unfortunately does not appear to have referred to the record of the detailed inquiry conducted by learned MM. This involved not only considering the reply filed by Respondent No.2 but also the evidence recorded of RW2 i.e. the Senior Manager D.S.Bandari of the PNB and RW3, the official of the `Tirath Ram Shah Hospital Manoj Nair. In the light of the evidence of these witnesses, the relevant portion of which have been extracted hereinbefore, there was no question of learned MM having to hold any further inquiry in order to determine whether Respondent No.2 ought to be prosecuted or not.
Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 20 of 26 In the considered view of this Court, when the learned MM in the order dated 9th September 2005 observed "I am, therefore, of the opinion that Smt. Veena has committed an offence under Section 193 IPC and she ought to be prosecuted for the same", the requirement of Section 340 CrPC as explained by the Supreme Court stood satisfied. In other words, the opinion formed by learned MM was obviously only a tentative or a prima facie one. This is plain from the expression "ought to be prosecuted". Further, the same expression "ought to be prosecuted" also indicates the formation of an opinion that it was expedient in the interest of justice that Respondent No.2 should be prosecuted. Therefore, both the requirements of law as explained by the Supreme Court in relation to Section 340 CrPC stood completely satisfied by the order dated 9th September 2005 passed by the learned MM. This Court is, therefore, unable to agree with the conclusion reached by learned ASJ to the contrary....."
(31) Fifthly, reference is also made to the case of Kuldeep Kapoor vs Susanta Sengupta reported in 126 (2006) DLT 149 wherein the Hon'ble Delhi High Court has observed as under:
"....... The purpose of enquiry under Section 340 of the Cr.P.C. is a very limited one. Once the ingredients of this Section are satisfied, the court has to conduct a very limited enquiry. As a result of that enquiry the court may record a finding to that effect, or even on the basis of preliminary enquiry make a complaint or send it to a magistrate of the First Class having jurisdiction, for the offender to be tried in accordance with law. In the case of Pritish Vs. State of Maharastra and Ors., the Supreme Court has held that in respect of any document produced or given in evidence, in relation Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 21 of 26 to proceedings in the court, the court is not required to afford any opportunity of hearing to the person against whom it might file a complaint before the Magistrate for initiating prosecution proceedings. The purpose of Section 340 is not to find 'whether a person is guilty or not' but is only to find 'whether it is expedient in the interest of justice to inquire into the offence. In the present case, to the application filed by the defendant, the nonapplicants/plaintiff had even filed detailed replies, and counsel for the parties were heard at great length. The purpose was to provide an opportunity to the nonapplicants, at least to show to the court as to whether it was a case where the court would direct filing of the complaint in compliance to the provisions of Section 340 or even drop the proceedings....."
(32) Hence, by application of these settled principles of law to the facts of the present case, it is evident that the Ld. Civil Judge had only after considering the material on record and conduct of the revisionist Ashok Malhotra, had passed a detailed order dated 21.12.2011. Further, the detail conduct of the Revisionist finds due mention in the impugned order dated 22.06.2018 passed by the Ld. CMM, Delhi as to how the accused had made a false claim before the court of Ld. Civil Judge and also did not appear before the Court when he was asked to produce the attorney and principal Bhagwan Singh. Therefore, under the given circumstances, the conclusions arrived at by the Ld. Trial Court cannot be faulted. (33) Sixthly, I may observe that the Indian Judicial System has been grossly abused by a frivolous and false litigations. This aspect has been duly taken note of by the Hon'ble Supreme Court in Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 22 of 26 the case of Subrata Roy Sahara Vs. Union of India reported in (2014) 8 SCC 470 wherein it has been observed that the Indian Judicial System is grossly afflicted with frivolous litigation and ways and means need to be evolved to deter litigants from there compulsive obsession towards senseless and ill considered claims, the supreme Court discussed the menace of frivolous litigation. (34) Seventhly, with regard to the non grant of hearing to the person against whom a complaint had to be filed, reference is made to the observations of the Hon'ble Apex Court in the case of Pritish Vs. State of Maharastra reported in 2001 (IX) AD (SC) 501 wherein it has been observed that there was no statutory requirement to offer an opportunity of hearing to the person against whom the court might file a complaint before the Magistrate for initiating prosecution proceedings. The court is under no obligation to offer an opportunity (to the person against whom a complaint would be made) to be heard prior to making a complainant and the principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such a person should be proceeded against or not.
(35) Eighthly, I have also gone through the judgments relied upon by the Ld. Counsel for the Revisionist which are as under:
Iqbal Singh Marwah and Another vs. Meenakshi Marwah and Another, Criminal Appeal No. 402 of 2005 with Nos. 904 and 106970 of 1998, Supreme Court of India, decided on March 11, 2005.
Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 23 of 26 Sachida Nand Singh & Anr. vs. State of Bihar & Anr.
Crl. Appeal No. 2059 of 1996 decided on 03.02.1998 Arulraj vs. Judicial Magistrate" Crl. P. No. 11534 of 1989, decided on 05.12.1995 Gulshan Sethi & Ors. vs. Government of NCT of Delhi & Ors. W.P. (Crl.) 108 of 2015 decided on 04.08.2015 (36) I note that all the above cases primarily deal with the cases where a complaint is to be filed when a document forged by an accused happens to be in the custody of the Court and if such a forgery has been committed by a person in a document prior to its being filed in the Court, no sanction under Section 340 Cr.P.C. read with Section 195 Cr.PC would be required. Hence, all these judgment do not help the revisionist / accused in any manner in view of the fact that the allegations against the revisionist/ accused are not of forging a document but of making a false statement/ declaration before the Court of law. In the present case, there is nothing to show that any such attorney existed in favour of the accused nor any attorney as such was filed nor was ever in custody of the Court. There are no allegation of forging of any document and the allegations are rather of giving false evidence/ statement / declaration before the Court of law, which act appears to be deliberate and conscious, hence the Ld. Trial Court has rightly observed that primafacie offence under Section 193 IPC is made out against the accused, wherein the accused, being legally bound to state the truth Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 24 of 26 and being bound by law to make declaration on any such fact had made false statement which he knew to be fake, in terms of Section 191 IPC. The accused had corruptly used or attempted to use as genuine such a declaration, which he knew to be false or fabricated and had filed affidavit in the Court thereby making declaration before a Court of justice and public servant that is bound or authorized by law to receive the same as evidence of fact and hence primafacie, the revisionist/ accused committed offences punishable under Section 196/199 Indian Penal Code as well.
(37) Lastly, it is a settled law that at this stage of framing of charge the court is not required to assess, evaluate and weigh the prosecution evidence in a criminal case as it is done at the final stage. In case if two views are possible one which favours the prosecution has to be accepted at this stage. It is not open for the court to sift and weigh the evidence as if it is conducting a mini trial and charge can be framed on the basis of grave suspicion and the evidential value of the statement recorded during the course of investigations is required to be seen at the time of appropriate trial. It is a settled law that at the stage of framing of charge the court is only required to consider whether primafacie there exists sufficient ground to proceed against the accused. A roving and fishing inquiry is impermissible and it is sufficient if the prosecution is able to show primafacie the commission of offence and the involvement of the charged person because at this stage this court is not required to meticulously go into the material placed on record by the prosecution. This is immaterial Ashok Malhotra Vs. State, Crl. Revision No. 89/2018, Judgment dated: 18.10.2018 Page No. 25 of 26 whether the case is based on direct or circumstantial evidence and the court is only require to see if primafacie there is sufficient ground for proceeding against the accused. Reference in this regard is made to the case of Sandeep Sunil Kumar Loharia vs Sumeet Ganpat Rao Bachewar & Ors. Criminal Appeal 1051/2018, wherein the Hon'ble Supreme Court has observed that there should not be appreciation of evidence while considering discharge plea and only primafacie case is to be seen at this stage and there is no requirement of speaking order.
(38) This being the background, I find no illegality in the order of the Ld. Trial Court dated 22.06.2018. Revision Petition is accordingly Dismissed.
(39) Trial Court Record be sent back along with the copy of this order.
(40) Revision file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 18.10.2018 Special Judge (PC Act), CBI01,
Central District, Tis Hazari, Delhi
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