Bombay High Court
Shri. Prakash S/O Gopalrao Pohare vs Serum Institue Of India Private Limited ... on 13 August, 2025
445 appw133.24.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPW) NO.133/2024
IN
CRIMINAL WRIT PETITION NO.625 OF 2024
Serum Institute of India Private Limited, through its Authorized
Representative Shri Rajesh Bhagwat and ors
..vs..
Shri Prakash s/o Gopalrao Pohare
Shri Prakash s/o Gopalrao Pohare : Applicant
...............................................................................................
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders
...............................................................................................
Shri Nilesh Ojha, Counsel and Shri S.R.Narnaware, Shri
C.D.Rohankar, and O.D.Kakde, Advocates for the
Applicant/Respondent.
Shri Anand Jaiswal, Senior Counsel assisted by Shri Ritesh Badhe,
Advocate for the Petitioners.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 10/07/2025
PRONOUNCED ON : 13/08/2025
1. By this application, the applicant is seeking an action as per Section 379 of the Bharatiya Nagarik Suraksha Sanhita, 2023 by taking cognizance for making false, scandalous, unfounded, scrupulous, reckless, .....1/-
445 appw133.24.odt 2 contemptuous, and grossly defamatory allegations against learned Civil Judge Senior Division by the petitioners in their memo of petition.
The applicant is further seeking directions to the Registrar of this Court to file a complaint against the petitioners.
2. The applicant filed a suit bearing Special Civil Suit No.417/2023 before learned Civil Judge Senior Division, Nagpur for declaring perpetual injunction, damages, and compensation against the petitioners Serum Institute of India Pvt.Ltd. and its office bearers. The petitioners who are original defendants have filed an application under Order VII Rule 11(A) of the CPC. As per the allegations, the said application was filed with false and misleading affidavit by dishonestly suppressing the material fact. Therefore, the applicant had filed an application under Section 340 of the Cr.PC for taking action .....2/-
445 appw133.24.odt 3 under perjury and contempt of court against the petitioners and co-accused. As per the procedure given under Civil Manual and as per the directions given by this court in the case of Kenneth Desa s/o Late John Desa and anr vs. Gopal s/o Leeladhar Narang, reported in 2007 SCC OnLine Bom 1513, the said application was registered as MJC No.301/2024. In the said application, learned CJSD conducted a preliminary enquiry. The applicant sought permission to adduce evidence and after considering the evidence about falsity and dishonesty of the petitioners and after hearing learned counsel for the applicant, learned CJSD at Nagpur came to conclusion that the petitioners have played fraud upon the court by filing false, frivolous and misleading affidavit by dishonestly suppressing and twisting the material facts. Learned CJSD also came to conclusion that the petitioners have committed contempt of court and therefore it is expedient in the interest of justice that dishonest litigants must be prosecuted as per provisions of Section 340 of the CrPC. Therefore, as per the .....3/-
445 appw133.24.odt 4 said procedure, learned CJSD directed the Superintendent of the Court to file a complaint under Section 340 read with 343 of the Cr.PC for offences under Sections 181, 182, 193, 196, 199, 200, 209, 465, 471, and 474 read with 120(B) and 34 of the IPC against the petitioners.
3. Being aggrieved and dissatisfied with the order passed by the learned CJSD, the petitioners preferred Writ Petition No.625/2024. As per the allegations by the applicant, the petitioners in the said petition also averred false, scandalous, unfounded, scrupulous, reckless, contemptuous, and highly defamatory allegations against the Presiding Officer who has passed the order. The scandalous allegations made by the petitioners are as under:
"The Hon'ble Judge had acted "deliberately", "with prejudiced mind", "callously", "acted by abusing authority of the Judge". The filing of .....4/-
445 appw133.24.odt 5 application under Section 340 of Cr.PC and order passed on it is completely malafide", "acted according to his whim and fancies", "not having basic understanding of the law", "acted arbitrarily and unreasonably". "He passed the order mechanically without understanding the basic provisions of law", "passed order mechanically and superficially" " Judge made feeble attempt to justify his mechanical, unreasoned and superficial order."
4. Thus, it is contended by the applicant that the petitioners have made false and misleading statements, twisted the material facts taking overruled grounds and blamed learned CJSD who in fact acted as per the provisions of law and binding precedent of the Hon'ble Apex Court and this Court. The petitioners committed serious offences against administration of justice and before learned CJSD by filing misleading and false affidavit. The .....5/-
445 appw133.24.odt 6 petitioners, without showing any repentance and tendering apology, hatched conspiracy and prepared a further false affidavit dated 8.8.2024 and by playing fraud upon this court abused of process of court in the present proceeding. Therefore, it is expedient in the interests of justice and it is mandatory as per the law laid down in the cases of Madangopal Banarasilal Jalan and ors vs. Partha s/o Sarthy, reported in 2018 SCC OnLine Bom 3525; Arun Dhawan vs. Lokesh Dhawan, reported in 2015 CriLJ 2126; ABCD vs. Union of India, reported in (2020)2 SCC 52; and Sundar vs. State, reported in 2023 SCC OnLine SC 310 that action perjury and contempt of court should be taken against the petitioners. It is further contended that as per the law laid down by the Constitution Bench of the Hon'ble Apex Court, advocates drafting petition with reckless, false, scandalous, and contemptuous allegation against Judge of the sub- ordinate courts and helping the dishonest litigants in abusing the court process in filing the false affidavit, the action be taken against the advocates also.
.....6/-
445 appw133.24.odt 7
5. The petitioners by filing the affidavit strongly opposed the said application with contentions that captioned application ex facie fails to make out any case for reliefs under Section 379 of the BNSS or the Contempt of Courts Act. The contempt proceedings cannot be initiated against a party merely for availing legal remedies and no contempt can be said to have been committed by the petitioners merely because they have filed captioned petition. It is further contended that the averments made in the petition are not scandalous or false or defamatory. It is not reckless or malicious also. They have also challenged the order of learned CJSD in accordance with remedy available to them and, therefore, no cause is made out to initiate the action of contempt against them.
6. Heard learned counsel Shri Nilesh Ojha for the applicant.
7. Learned counsel for the applicant submitted .....7/-
445 appw133.24.odt 8 that the point falls for consideration is, whether the petitioners have right to be heard in the proceeding. He submitted the Hon'ble Apex Court has held that the petitioners accused do not have right of hearing at the stage of enquiry i.e. under Section 340(1) of the Cr.PC (379 of the BNSS). He submitted that in The State of Punjab vs. Jasbir Singh, reported in (2020)12 SCC 96 the Hon'ble Apex Court relied on the ratio in the case of Pritish vs. State of Maharashtra, (2002) 1 SCC 253 but referred to the Larger Bench in view of subsequent decision of the Hon'ble Apex Court in the case Sharad Pawar v. Jagmohan Dalmiya, (2010)15 SCC 290. In the case of The State of Punjab vs. Jasbir Singh it is noted that three Judge-Bench in Sharad Pawar supra did not take note of dictum in Pritish and proceeded to hold that the proposed accused should be given an opportunity of hearing before the court directs a preliminary enquiry under Section 340(1) of the CrPC. The view taken by the Larger Bench in reference in The State of Punjab vs. Jasbir Singh supra by relying upon the .....8/-
445 appw133.24.odt 9 constitution bench decision in Iqbal Singh Marwah vs. Meenakshi Marwah, reported in (2005)4 SCC 370 to hold that there is no question of opportunity of hearing being given to the proposed accused under Section 340(1) of the CrPC. The Hon'ble Apex Court further opined that law laid down by the Constitution Bench in Iqbal Singh Marwah was in line with dictum in Pritish and while answering the reference as to the whether an opportunity of hearing should be given to the proposed accused before the complaint is made under section 195 of the CrPC in negative.
Thus, he submitted that this court is bound by the law laid down is accordingly not inclined to depart from the said view, in view of the decision of the Hon'ble Apex Court in Pritish supra and the above grounds or good grounds to hold that the petitioner proposed accused do not have right of hearing at the stage of enquiry i.e. under Section 340(1) of the CrPC. The court .....9/-
445 appw133.24.odt 10 accordingly has to proceed with the hearing.
On the same issue, he placed reliance on the decision in the case of Madangopal Banarasilal Jalan and ors vs. Partha s/o Sarthy supra wherein also it is held that at the stage of passing of an order directing the preliminary enquiry or even accepting application filed under Section 340 of the CrPC, the accused does not have any say in the matter. There can be no dispute about the principle of law. The principle of law will have to be borne in mind while dealing with this application.
In the case of Gurpreet Singh Kang vs. Gurpartap Singh, reported in 2013 SCC OnLine P&H 6599 it is held that summoning the accused for the purpose of holding preliminary enquiry will be the violation of the concept of criminal jurisprudence.
In the case of Partha Sarathy Saha vs. Nagpur .....10/-
445 appw133.24.odt 11 District Court, reported in 2005 SCC OnLine Bom 634 the co-ordinate bench of this court held that the accused has no right to be heard at the stage of enquiry under Section 340 of the CrPC or even when the complaint is filed before the Magistrate.
Thus, it is consistent view that the accused has no right to appear and contest the present application.
8. The further submission of learned counsel for the applicant is that the application is filed against the accused seeking prosecution against the petitioners as they have submitted, false, misleading, and scandalous pleadings before this court. The actions of the accused include:
A. making false statements on oath; B. filing fabricated and manipulated affidavits; and C. incorporating scandalous and contemptuous allegations with an intent to mislead the court and malign the judicial process. These acts constitute grave and cognizable .....11/-
445 appw133.24.odt 12 offences punishable under Sections 191, 192, 193, 196, 199, 200, 466, and 120B read with 34 of the IPC. It is not merely a procedural misconduct, but deliberate obstruction of justice that undermines the sanctity and authority of this court and, therefore, deterrent criminal action against accused is required.
9. It is submitted that the defendants moved an application under Order VII Rule 11 of the CPC seeking rejection of the plaint. This application was accompanied by false and misleading affidavit. Therefore, the applicant invoked the jurisdiction of the court under Section 340 read with Section 195 of the Cr.P.C and filed an application seeking initiation of criminal prosecution. In view of binding precedent in the case of Kenneth Desa s/o Late John Desa and anr vs. Gopal s/o Leeladhar Narang supra, the case was registered as MJC No.301/2024 separately. The applicant filed an application in the said application requesting the court to proceed with preliminary enquiry .....12/-
445 appw133.24.odt 13 without issuing notice to the accused and allow the applicant to lead evidence in support of the allegations. Upon considering the legal position, learned CJSD was pleased to allow the application by passing a reasoned order directing enquiry under Section 340 of the CrPC without issuing notices. The decision to hear the said application before civil proceeding is proper and as per the various decisions of the Hon'ble Apex Court.
10. In Gulab Chaturkar vs. Vimalabai, reported in 2022 SCC OnLine Bom 11964; Union of India and ors vs. Haresh Virumal Milani, reported in 2017 SCC OnLine Bom 1705, and Iqbal Singh Marwah vs. Meenakshi Marwah supra, the proceeding in application under Section 340 of the CrPC is a kangaroo baby within main suit, but independent and decided only as per Cr.PC. It has to be decided first before main proceeding in civil case and till that time the suit may be stale.
.....13/-
445 appw133.24.odt 14
11. Thus, in the light of the above well settled legal position, the application was decided by learned CJSD, but suppressing this factual and legal position, the petitioners made allegations against the presiding officer stating that they were unaware of the procedure and acted against the procedure and order was passed deliberately with mala fide intention to help the applicant. In fact, the trial court acted fairly and as per the procedure laid down by this court and by the Hon'ble Apex Court, the petitioner accused made a false, defamatory, and scandalous allegations against the Judge below without pointing out any legal provision and decision of this court or the Hon'ble Apex Court. This act of the petitioners is not sustainable. The conduct is grossly dishonest and unethical and, therefore, the action is required against them. It is further submitted that the petitioners knowingly made false and misleading submissions and, therefore, such acts are to be handled with stern hands and the action is to be initiated against them by holding preliminary enquiry directing the Registrar .....14/-
445 appw133.24.odt 15 of this court to lodge a complaint against them.
12. In support of his contentions, learned counsel for the applicant placed reliance on following decisions:
1. Somu vs. State, reported in 1985 SCC OnLine Mad 7;
2. Annapurna Nayak (Dr.) vs. Gyan Chand Varshey, reported in 2007 SCC OnLine Bom 1031;
3. M/s.A-One Industries vs. D.P.Garg, reported in 1999 SCC OnLine Delhi 533;
4. Devinder Mohan Zakhmi vs. The Amritsar Improvement Trust, Amritsar, reported in 2002 SCC OnLine 439;
5. A1 Amin Garments Haat (P) Ltd vs. Jitendra Singh, reported in 2024 SCC OnLine Cal 110;
6. Kenneth Desa s/o Late John Desa and anr vs. Gopal s/o Leeladhar Narang, reported in 2007 SCC OnLine Bom 1513;
7. Gulab Chaturkar vs. Vimalabai, reported in 2022 SCC OnLine Bom 11964;
8. Iqbal Singh Marwah vs. Meenakshi Marwah, reported in (2005)4 SCC 370;
9. Court on its own motion vs. Virendra Singh, reported in 2024 SCC OnLine Del 145;
.....15/-
445 appw133.24.odt 16
10. State of UP vs. Ashok Pande, reported in 2025 SCC OnLine ALL 3787;
11. Municipal Council Tikamgarh vs. Matsya Udyog Sahkari Samiti, reported in 2022 SCC OnLine SC 1900;
12. Mohan Chandra P. State of Karnataka, reported in 2022 SCC OnLine SC 2336;
13. Baradakanta Mishra vs. The Registrar of Orissa High Court and anr, reported in 1974 (1) SCC 374;
14. B.A.Shelar vs. M.S.Menon, reported in 2001 SCC OnLine Bom 230;
15. A.N.Shanmugam vs. G.Saravanan, reported in (2009)15 SCC OnLine Madras 728;
16. Shri Narayan Ganesh Gadekar Vs. Smt. Parvati Sagun Gadekar, reported in 2013 Allah MR (Cri) 1349;
17. Prafulla Hedge vs. Vineeta Vaze, reported in 2014 SCC Online Cri 1349;
18. M.A.Rumugam vs. Kuttu, reported in (2009)1 SCC 101;
19. Surinder Kumar vs. Raj Mal Saini, reported in 2016 SCC ONLine P&H 10517;
20. So Nayak Desai Yashwant Deshi vs.. 2009 SCC ONLine Bom 1400;
21. Joy Anto vs. C.R.Jaison, reported in 2021 SCC OnLine Ker 16385;
22. Prabhakaran vs. Gangadharan, reported in .....16/-
445 appw133.24.odt 17 2006 SCC OnLine Kerala 302.
23. M.N.Damani vs. S.K.Sinha and ors, reported in (2001)5 SCC 156;
24. Rosario Colaco vs. Amelio Mariqu9inha Zuzarte and anr, reported in 2009 SCC OnLine Bom 110;
25. Ram Jethmalani vs. Subramanian Swamy, reported in 2006 SCC OnLine Del 14;
26. Madhuri Mukund vs. Mukund Martand, reported in 1990 SCC OnLine Bom 410;
27. The Municipal Corporation Of Greater Bombay vs. Smt. Annatte Raymond Uttanwala anr, reported in 1985 SCC OnLine Bom 495;
28. R. Muthukrishnan vs The Registrar General Of The High Court of Judicature at Madras, reported in (2019)16 SCC 401;
29. Baduvan Kunhi vs. K.M.Abdulla , reported in 2016 SCC OnLine Kerala 23602
30. Siloo Danjishaw Mistri vs. State of Maharashtra and ors, reported in 2016 SCC OnLine Bom 3180;
31. Ashok Kumar Sarogi vs. State of Mah, reported in 2016 ALL MR (Cri) 3400;
32. Ranbir Singh vs. State, reported in 1990(3) Crimes 207;
33. HS Bedi vs. National Highway Authority of India, reported in 2016 SCC OnLine Del 432;
34. K. Ram Reddy vs. State of A.P. and Another, .....17/-
445 appw133.24.odt 18 reported in 1997 SC OnLine AP 1210;
35. P.V.R.S. Manikumar vs. Krishna Reddy, reported in 1999 SCC OnLine Madars 107;
36. Lal Bahadur Gautam vs. State Of Uttar Pradesh And Others, reported in (2019)6 SCC 441;
37. Dr.Sarvepalli Radhakrishnan University vs. Union of India, reported in (2019)14 SCC 761;
38. Godrej and Boyce Manufacturing Co.Pvt.Ltd. vs. Union of India, reported in 1991 SCC Online Bom 496;
39. Afzal & Another vs. State Of Haryana & Others, reported in (1996)7 SCC 397;
40. Arun Dhawan vs. Lokesh Dhawan, reported in 2015 CriLJ 2126;
41. Sundarjas Kanyalal Bhathija and Ors. vs. Collector, Thane, Maharashtra and Ors., reported in AIR 1990 SC 261;
42. Anurag Kumar Singh ..Petitioner State Of Uttarakhand, reported in (2016)9 SCC 426;
43. New Delhi Municipal Council vs. M/s. Prominent Hotels Limited, reported in 2015 SCC OnLine Delhi 11910;
44. Kusum Kumria and Ors vs. Pharma Venture (India) Pvt. Ltd. and Anr, reported in 2015 SCC OnLine Del. 13042;
45. Priya Gupta & Anr vs. Addl. Secy. Ministry Of Health & Family Welfare & Others, reported in .....18/-
445 appw133.24.odt 19 (2013)11 SCC 404;
46. State Of Maharashtra vs. Mangesh And Others, reported in 2020 ALL Mr (Cri) 2979, and
47. Perumal vs. Janki, reported in (2014)5 SCC
377.
13. Thus, the application is filed by applicant Shri Prakash Pohare who is the respondent in the writ petition on the ground that while filing the writ petition, the petitioners played fraud upon the court by filing false, frivolous, and misleading affidavit alleging scandalous, unfounded, scrupulous, reckless, contemptuous, and highly defamatory allegations against the Presiding Officer. It is contended that scandalous allegations made by the petitioners that, "The Hon'ble Judge had acted "deliberately", "with prejudiced mind", "callously", "acted by abusing authority of the Judge". The filing of application under Section 340 of Cr.PC and order passed on it is completely malafide", "acted according to his whim and fancies", "not having basic understanding of the law", .....19/-
445 appw133.24.odt 20 "acted arbitrarily and unreasonably". "He passed the order mechanically without understanding the basic provisions of law", "passed order mechanically and superficially" " Judge made feeble attempt to justify his mechanical, unreasoned and superficial order," which are serious and malice conduct of the petitioners and their counsels. Therefore, the action under Section 340 of the CrPC requires to be taken against them.
14. Before entering into the merits of the case, it would be appropriate to reproduce Section 340 of the Cr.PC, as under:
"340. Procedure in cases mentioned in Section
195. (1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section .....20/-
445 appw133.24.odt 21 (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in .....21/-
445 appw133.24.odt 22 custody to such magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section
195. (3) A complaint made under this section shall be signed, -
(a) where the Court making the complaint is a .....22/-
445 appw133.24.odt 23 High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court [or by such officer of the Court as the Court may authorise in writing in this behalf.] [ Substituted by Act 2 of 2006, Section 6, for Cl. (b) (w.e.f. 16-4-2006). Prior to its substitution, Cl (b) read as under : - [(b) in by other case, by the presiding officer of the Court].] (4) In this section, "Court" has the same meaning as in Section 195.
15. Section 195 (1)(b) of the CrPC is also relevant, which is also reproduced as under :
"195(1)(b) .....23/-
445 appw133.24.odt 24
(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii)of any offence described in section 463, or punishable under section 471, section 475 or section 476 of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause
(ii), .....24/-
445 appw133.24.odt 25 [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] [Substituted by Act 2 of 2006, Section 3 for "except on the complaint in writing of that Court, of some other Court to which that Court is subordinate" (w.e.f. 16-4-2006).]
16. Thus, the contentions of the applicant is that as the scandalous and false allegations are levelled against learned CJSD, the action is required.
17. Learned counsel for the applicant vehemently submitted that the procedure is followed by the CJSD and by observing that for action under Section 340 of the CrPC, the preliminary enquiry is required. Learned CJSD, after conducting a preliminary enquiry, passed an order directing the Superintendent of the Court to register the FIR. To .....25/-
445 appw133.24.odt 26 substantiate his contentions, he placed reliance on the catena of decisions. As far as issue raised by the applicant that whether the application under Section 340 of the CrPC has to be decided first before adjudicating the proceeding is now settled. It is settled that the said application is to be decided first.
18. The another issue raised by the applicant that the accused have no locus to make submissions on the application filed under Section 340 of the Cr.PC is also settled.
19. He placed reliance on Dalip Singh vs. State of UP and anr, reported in (2010)2 SCC 114; Ramrameshwari Devi and ors vs. Nirmala Devi and ors, reported in (2011)8 SCC 249; Kishore Samrite vs. State of UP and ors, (2013)2 SCC 398 wherein it is held that, "it is very well settled that a persons whose case is based on falsehood has no right to approach the court and he is not entitled to be heard on .....26/-
445 appw133.24.odt 27 merits and he can be thrown out at the stage of litigation".
20. In Tiscon Realty Private Limited vs. C.G. Edifice, 2023 SCC OnLine Bom 1154 it is held that the defendant should not be allowed leave to defend on the pretext of making false oath on the affidavit. It is further held that if a party comes to court with unclean hands or basis its case and/or defence on falsehood, as has been done in the present case, the party should be dealt with very strongly and substantial costs and also should be imposed on the party.
21. In the case of Union of India and ors vs. Haresh Virumal Milani supra it is observed that if the court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence, it means that the Court has to undergo a process of formation of opinion in respect of would be or proposed inquiry. Thus it is a process of not confirming of the offence or guilt, but just .....27/-
445 appw133.24.odt 28 formation of opinion that the matter is worth, having some material which apparently constitutes an offence as specified under Section 195 of Code of Criminal Procedure, to send it to a magistrate of the First Class having jurisdiction. Thus it is a stage of a preliminary inquiry, wherein the Judge need not go in depth of the assessment. It is further held that hearing of the person against whom prosecution is likely to be instituted is not contemplated.
22. In The State of Punjab vs. Jasbir Singh supra, the Hon'ble Apex Court was considering the issue whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court. The Hon'ble Apex Court held that there is no question of opportunity of hearing in a scenario of this nature and we say nothing else but that a law as enunciated by the Constitution Bench in Iqbal Singh Marwah's case supra is in .....28/-
445 appw133.24.odt 29 line with what was observed in Pritish's case supra. The answer thus raised to the question raised can be granted.
23. In the case of Devinder Mohan Zakhmi vs. The Amritsar Improvement Trust, Amritsar supra also the aspect was considered and it is held that the accused has no right to participate at this stage.
24. Thus, it is settled law that at this stage the accused against whom the action is sought is not entitled to participate in the said proceeding.
25. Sub-section (1) of Section 195 of the CrPC creates a bar in taking cognizance on the complaint filed by the respondent. The controversy revolves around the interpretation that "when such offence is alleged to have been committed in respect of document produced or given in evidence in a proceeding in any court. After going through the provisions especially Section 195(1)(b)(ii), it is .....29/-
445 appw133.24.odt 30 clear that for taking cognizance of an offence, the document or the allegation of a false evidence or a forgery if produced before the court, the bar of taking cognizance under section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless complaint in writing is filed as per the procedure prescribed under Section 340 of the Code or by on behalf of the court. The object is to preserve purity of the administration of justice and to allow the parties to adduce evidence.
26. Thus, the scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis.
27. While dealing with the provisions under Sections .....30/-
445 appw133.24.odt 31 340 and 341 of the CrPC, the Constitution Bench of the Supreme Court in Iqbal Singh Marwah supra observed that in view of the language used in Section 340 Cr.PC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious .....31/-
445 appw133.24.odt 32 or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.
It is further held by the Hon'ble Apex Court that there is another consideration which has to be kept in mind. Sub-section (1) of Section 340 Cr.PC contemplates holding of a preliminary enquiry. Normally, a direction for filing of a .....32/-
445 appw133.24.odt 33 complaint is not made during the pendency of the proceeding before the court and this is done at the stage when the proceeding is concluded and the final judgment is rendered. Section 341 provides for an appeal against an order directing filing of the complaint. The hearing and ultimate decision of the appeal is bound to take time. Section 343(2) confers a discretion upon a court trying the complaint to adjourn the hearing of the case if it is brought to its notice that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising out of civil suits where decisions are challenged in successive appellate foram which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. In view of these provisions, the complaint case may not proceed at all for decades specially in matters arising .....33/-
445 appw133.24.odt 34 out of civil suits where decisions are challenged in successive appellate foram which are time-consuming. It is also to be noticed that there is no provision of appeal against an order passed under Section 343(2), whereby hearing of the case is adjourned until the decision of the appeal. These provisions show that, in reality, the procedure prescribed for filing a complaint by the court is such that it may not fructify in the actual trial of the offender for an unusually long period. Delay in prosecution of a guilty person comes to his advantage as witnesses become reluctant to give evidence and the evidence gets lost. This important consideration dissuades us from accepting the broad interpretation sought to be placed upon clause (b)
(ii).
The Hon'ble Apex Court further observed that judicial notice notice can be taken of the fact that the courts are normally reluctant to direct filing of a criminal complaint and such a course is rarely adopted. It will not be .....34/-
445 appw133.24.odt 35 fair and proper to give an interpretation which leads to a situation where a person alleged to have committed an offence of the type enumerated in clause (b)(ii) is either not placed for trial on account of non-filing of a complaint or if a complaint is filed, the same does not come to its logical end.
28. In KTMS Mohd. and anr vs. Union of India, reported in (1992)3 SCC 178, it has been held that, "in this context, reference may be made to Section 340 of the Code of Criminal Procedure under Chapter XXVI under the heading "Provisions as to certain offences affecting the administration of justice". This section confers an inherent power on a Court to make a complaint in respect of an offence committed in or in relation to a proceeding in that Court, or as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, if that Court is of opinion that it is expedient in the interest of justice that an enquiry should be made into an .....35/-
445 appw133.24.odt 36 offence referred to in clause (b) of sub-section (1) of Section 195 and authorizes such Court to hold preliminary enquiry as it thinks necessary and then make a complaint thereof in writing after recording a finding to that effect as contemplated under sub-section (1) of Section 340. The words "in or in relation to a proceeding in that Court" show that the Court which can take action under this section is only the Court operating within the definition of Section 195(3) before which or in relation to whose proceeding the offence has been committed. There is a word of caution inbuilt in that provision itself that the action to be taken should be expedient in the interest of justice. Therefore, it is incumbent that the power given by this Section 340 of the Code should be used with utmost care and after due consideration".
29. In the case of K.Karunakaran vs. T.V.Eachara Warrier, reported in 1978 AIR 290 also it is held that, "at an enquiry held by the court under Section 340(1) Cr.P.C., .....36/-
445 appw133.24.odt 37 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".
30. In the case of Pankaj Chaudhary (State of Delhi) vs. Pankaj Chaudhary, reported in (2019) 11 SCC 575, the Hon'ble Apex Court held that there are two preconditions for initiating the proceeding under Section 340 of the CrPC; (1). materials presented before the court must establish a prima facie case for a complaint related to an offense under Section 195(1)(b)(i) of the Cr.PC, and (2). It must be deemed expedient in the interests of justice to conduct an inquiry into the alleged offense. It has been observed that the Court has to be satisfied as to the prima facie case for a complaint for the purpose of inquiry into an offence under Section 195(1)(b) Cr.P.C. The mere fact that a person has made a contradictory statement in a judicial proceeding is .....37/-
445 appw133.24.odt 38 not by itself always sufficient to justify a prosecution under Sections 199 and 200 of the Indian Penal Code, but it must be shown that the defendant has intentionally given a false statement at any stage of the judicial proceedings or fabricated false evidence for the purpose of using the same at any stage of the judicial proceedings. Even after the above position has emerged also, still the Court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry into the offences of false evidence and offences against public justice and more specifically referred to in Section 340(1) Cr.P.C., having regard to the overall factual matrix as well as the probable consequences of such a prosecution. Thus, the Court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case. In the process of formation of opinion by the Court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been .....38/-
445 appw133.24.odt 39 committed. It is open to the Court to hold a preliminary inquiry though it is not mandatory.
31. Thus, it is consistently held by the Hon'ble Apex Court that the prosecution for perjury be sanctioned by the courts only in those cases where perjury appears to be deliberate and prosecution ought to be ordered where it would be expedient in the interest of justice to punish delinquent and not merely because there is some inaccuracy in the statement. The prosecution for perjury should be sanctioned by courts only in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable or likely. No doubt giving of false evidence and filing false affidavits is an evil which must be effectively curbed with a strong hand but to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeats its very purpose. Prosecution should be ordered when it is considered expedient in the .....39/-
445 appw133.24.odt 40 interests of justice to punish the delinquent and not merely because there is some inaccuracy in the statement which may be innocent or immaterial. There must be prima facie case of deliberate falsehood on a matter of substance and the court should be satisfied that there is reasonable foundation for the charge. The approach should not be mechanical and superficial. It is sufficient to justify conclusion that it is expedient in the interests of justice to file a complaint.
32. It is expedient in the interest of justice that "the enquiry shall be made". These words are key note to Section 340. Under Section 340 of the Code, if it is expedient in the interest of justice and not on mere allegations, the course of initiating an enquiry under Section 340 is adopted only if the interests of justice so requires.
33. In law, "expedient" generally deals suitable or .....40/-
445 appw133.24.odt 41 appropriate for achieving a particular purpose, even if not always morally or ethically ideal. It can also refer to something i.e. advantageous or helpful in a specific situation, particularly when dealing with an exigency. Essentially, it is about what is practical and beneficial in the moment rather than necessarily what is right or fair.
34. Advanced Law Lexicon defines "expedient" as "act" and "suitable" to the end or "practical" and "efficient,"
"Polite", "profitable," "advisable" "fit," "proper" and "suitable" to the circumstances of the case. In another case, it means a device "characterized" by merely rather than principle, conducting to special advantage rather than to what universally right.
35. The law lexicon defines the term "expedient" as "necessary" means what is indispensable, needful, essential. The term has a precise meaning and connotation and there is nothing vague or nebulous about it. The term .....41/-
445 appw133.24.odt 42 "expedient" has no doubt a wide ambit and gives large scope to the exercise of power. But this expression has also a recognized connotation in the eye of law. There is no magic in recording the words that "Court find it expedient in the interest of justice that inquiry should be made" but from order of Court, it should appear that Court has formed such opinion.
36. In the case of in Shri Narendra Kumar Srivastava vs. State of Bihar and ors, reported in 2019 AIR (SC) 2675, while dealing with this aspect, it is held that requirement of formation of opinion of Court that it is expedient in the interest of justice that an inquiry should be made, is with an objective that prosecution should be ordered if it is in the larger interest of administration of justice and not to gratify feelings of personal revenge or vindictiveness or to serve the ends of a private party. The Hon'ble Apex Court referred its earlier judgment in Santokh Singh vs. Izhar Hussain and anr, reported in (1973) 2 SCC 406, and .....42/-
445 appw133.24.odt 43 observed that too frequent prosecutions for such offences tend to defeat its very object. It is only in glaring cases of deliberate falsehood where conviction is highly likely that Court should direct prosecution.
37. Thus, the settled law on this aspect shows that mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution for an offence under section 195 of the IPC or 340 of the Cr.PC but it must be shown that the defendant has intentionally given a false statement at any stage of judicial proceeding or fabricated false evidence for the purpose of losing the same at any stage of judicial proceedings. Even after the above position has emerged, still the court has to form an opinion that it is expedient in the interests of justice to initiate an inquiry under Section 340(1) of the Cr.PC into the offences of false evidence and offences against public justice, having regard to the overall factual matrix as well as the probable consequences of such .....43/-
445 appw133.24.odt 44 a prosecution. The court must be satisfied that such an inquiry is required in the interests of justice and appropriate in the facts of the case. In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry. Even after forming an opinion as to the offence which appears to have been committed, it is not mandatory that a complaint should be filed as a matter of course.
38. The question is whether it was expedient in the interest justice that an enquiry should be directed to be .....44/-
445 appw133.24.odt 45 made as provided under Section 340 of the CrPC. In this connection, it is pertinent to mention that Section provides procedure in respect of offences enumerated under Section 195 (1) (d)(i) of the Code occur under Chapter XVI and XXVI. Sections 340 and 195 are closely connected and have to be read together. Section 195 starts with the words 'no court shall take cognizance of any offence punishable under Sections 172 to 188 of the IPC except with the document in writing of the public servant concerned". Whereas, Section 195(1)(d) forbids cognizance by any court and the offence against public servant except on complaint in writing of that court. Section 340 enacted and gives procedure for the same and provides as to the how the complaint is to be filed. This Section deals with cases mentioning Section 195(1)(d) and it has no concern with the offences under Section 195(1)(a). Thus, Section 340 and 195 (1)(d) are supplemented to each other. Section 195(1)(a) as observed earlier is not concerned with the courts. It deals with contempt of lawful authority of public .....45/-
445 appw133.24.odt 46 servants and hence is not within the purview of Section 340 of the Code. In view of the procedure under Section 340, the court may take action suo- motu or otherwise on an application made by person if it is of the opinion that it is expedient in the interest of justice to do so. In that case, the court may complaint in writing or otherwise but the powers of the court under Section 340 is confined with the provisions whether the court is of the opinion that it was expedient in the interest of justice to do so.
39. It is worth mentioning that the power under Section 340 of the Code is not absolute one. The enquiry can be made or the complaint can be directed to be filed only when the court comes to conclusion that it was expedient in the interest of justice to do so. There may be case where false complaint might have been filed for offence under Section 195 (1)(d) might appear to have been committed, but unless it is expedient in the interest of justice, the opinion of the court that enquiry should be .....46/-
445 appw133.24.odt 47 made or complaint should be directed to be filed, the same cannot be done.
40. Applying these rules of interpretation to provisions of Section 340 of the CrPC, it is evident that the intention of the legislature behind such a language that the court's discretion is circumscribed by words used. The Court has to consider and weigh the balance of situation to ascertain as to whether in a given case is it 'expedient' in the interest of justice that an enquiry should be made. As an inescapable corollary, in case it is not 'expedient', under the circumstances, enquiry must not be made. Deliberate use of word "expedient" by the legislature obviously connotes its meaning as to suitable or advisable. The power of the Court in directing an enquiry to be made or a complaint to be filed in view of the provisions of Section 340 as limited with a condition that it should appear to the Court to be expedient in the interest of justice to do so. To put it differently, it is only in glaring cases of deliberate falsehood .....47/-
445 appw133.24.odt 48 when the Court can direct an enquiry to be made or complaint to be filed but this discretion has to be exercised judicially in the light of all the relevant circumstances. Section 340 of the code is not with a view to satisfy personal feelings of vindictiveness. The Court has to be satisfied about the deliberate falsehood as a matter of substance and there must be a reasonable foundation for the charge and it must be expedient in the interest of justice. The court has to exercise judicial discretion in the light of all relevant circumstances when it determines question of expediency.
41. In Iqbal Singh Marwah vs. Meenakshi Marwah case, the constitution bench of the Hon'ble Apex Court has gone into scope of Section 340 and in paragraph No.23 relevant considerations are noted and observed as follows:
"In view of the language used in Section 340 Cr.P.C. the Court is not bound to make a .....48/-
445 appw133.24.odt 49 complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words "Court is of opinion that it is expedient in the interest of justice."
This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or .....49/-
445 appw133.24.odt 50 substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint."
42. Thus, it has been consistently held by the Hon'ble Apex Court that the prosecution for perjury be sanctioned by the court only in those cases where perjury appears to be dealt with and that prosecution ought to be ordered where it would be expedient in the interest of justice to punish delinquent and there is no inaccuracy in the statement. Thus, before taking action under Section .....50/-
445 appw133.24.odt 51 340 of the Cr.PC, the court is required to see as to whether material produced before the court makes out prima facie case for complaint for the purpose of enquiry into the offence referred in clause (b) of sub section (1) of Section 195 of the CrPC and it is expedient in the interest of justice that enquiry should be made into the alleged offence.
43. Thus, before directing the prosecution for perjury for giving false evidence before the court, the court has to come to conclusion the perjury appears to be deliberate.
44. In Criminal Appeal No.1931/2011 (Ashok Gulabrao Bondre vs. Vilas Madhukarrao Deshmukh) decided on 12.4.2023, the Hon'ble Apex Court, while dealing with the provisions under Section 195 of the CrPC and under section 340(1) of the CrPC by referring its earlier judgment in the case of of Sachida Nand Singh and anr vs. State of Bihar and anr, reported in (1998)2 SCC 493, .....51/-
445 appw133.24.odt 52 observed scope of the preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence affecting administration of justice has been committed in respect of a document produced in court or given in evidence in a proceeding in that Court. In other words, the offence should have been committed during the time when the document was in custodia legis. It would be a strained thinking that any offence involving forgery of a document if committed far outside the precincts of the Court and long before its production in the Court, could also be treated as one affecting administration of justice merely because that document later reached the court records.
45. Now, the only question requires for consideration is that whether preliminary enquiry before directing the prosecution for the alleged statements of the accused is required.
.....52/-
445 appw133.24.odt 53
46. On going through the application, it reveals that the application revolves around the pleading in the writ petition that learned CJSD acted "deliberately", "with prejudiced mind", "callously", "acted by abusing authority of the Judge". The filing of application under Section 340 of CrPC and order passed on it is completely malafide", "acted according to his whim and fancies", "not having basic understanding of the law", "acted arbitrarily and unreasonably", "he passed the order mechanically without understanding the basic provisions of law" and the said order was passed mechanically and superficially, the "Judge made feeble attempt to justify his mechanical, unreasoned and superficial order. According to the applicant, these averments made by the petitioners in the writ petition are false, scandalous, unfounded, scrupulous, reckless, contemptuous, and grossly defamatory allegations against the Judge. Admittedly, the accused are original petitioners in the writ petition who have challenged the order passed by learned CJSD, Nagpur. It is a matter of hearing in which .....53/-
445 appw133.24.odt 54 context the petitioners have made these allegations against the presiding officers.
47. To come to the conclusion that whether these allegations are scandalous, contemptuous, or defamatory, it is necessary to hear both the parties at length. At the interim stage, only on the basis of the application, it would not be appropriate to come to conclusion that pleadings of the petitioners are scandalous, contemptuous, or defamatory.
48. At this stage, in view the settled law, it is not expedient in the interest of justice to direct the prosecution of the accused for making such statements in the petition.
49. As observed earlier, basic requirement to apply Section 340 is formation of an opinion by court that it is expedient in the interest of justice that the enquiry should be made for the offence which appears to have been .....54/-
445 appw133.24.odt 55 committed. It is also well settled that merely because some statements are made or a person has made a contradictory statement in judicial proceeding is not by itself always sufficient to justify prosecution of the accused. It is to be ascertained whether the accused intentionally made such statement in judicial proceeding. Even after the above position, the court has to form an opinion that it is expedient in the interest of justice to initiate the enquiry into offence of false statements and more specifically referred to in Section 340(1) of the Cr.PC having regard to the overall factual matrix as well as the probable consequences of such prosecution. The court must be satisfied that such an enquiry is required in the interest of justice.
50. At this stage, the material placed on record is not sufficient to come to conclusion and to form an opinion that it is expedient in the interest of justice that enquiry should be made into offence which appears to have been .....55/-
445 appw133.24.odt 56 committed. However, this aspect can be considered while disposing of the writ petition pending before this court.
51. In my view, at this stage, it is not expedient in the interest of justice to hold an enquiry or to entertain the question. At the most, this aspect can be considered at the time of final disposal of the writ petition.
52. In view of the aforesaid discussion and in view of the provisions under Sections 340 read with 195 of the CrPC, I am of the view that at this stage, no enquiry is required. This aspect can be kept open for the applicant who are original respondent in the writ petition and while disposing of the writ petition, this aspect can be dealt with. At this stage, it cannot be said that there is a case disclosing an offence under Section 195(1)(b) of the Code. It is always discretionary depending upon the facts and circumstances of the particular case. It is only dealt with when it appears expedient in the interest of justice to direct .....56/-
445 appw133.24.odt 57 the enquiry to be made or complaint to be filed. In that event, enquiry can be ordered to be made or complaint can be directed to be filed.
53. Keeping in view the entire facts and circumstances of the present case, I am of the view that the application is to be admitted along with the writ petition by keeping open this aspect for the applicant to argue and can be decided along with the writ petition.
54. In this view of matter, the application is admitted to be decided along with the writ petition.
55. Interim relief, if any to continue, till next date.
(URMILA JOSHI-PHALKE, J.) !! BrWankhede !! Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge .....57/- Date: 16/08/2025 15:11:00