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Showing contexts for: criminal procedure code 340 in Sh. Ashok Malhotra vs State (Govt. Of Nct Of Delhi) on 18 October, 2018Matching Fragments
(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.
(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.
(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:
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....."