Calcutta High Court
Prochy N. Mehta & Anr vs Noshir Tankariwala & Ors on 22 June, 2023
IN THE HIGH COURT AT CALCUTTA
(Ordinary Original Civil Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
IA No. GA 10 of 2023
CSOS 1 of 2017
Prochy N. Mehta & Anr.
Versus
Noshir Tankariwala & Ors.
Mr. Phiroze Edulji
Ms. Samira Grewal
.....For the applicant.
Mr. R. K. Khanna
Mr. Aman Khemka
.....For the defendant nos. 2 & 3.
Mr. Dhurba Ghosh
Mr. Anirban Kar
....For the plaintiff.
Hearing Concluded On : 16.05.2023
Judgment on : 22.06.2023
Krishna Rao, J.:
1. The applicant, "Parsi Zoroastrian Association, Calcutta" has filed the
present application for initiation of proceeding under Section 340 of the
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Code of Criminal Procedure against the plaintiffs for commission of
offence under Section 193/209 of the Indian Panel Code.
2. Mr. Phiroze Edulji, learned Advocate representing the applicant submits
that the applicant had initially filed an application being G.A. No. 8 of
2023 praying for dismissal of the suit as the plaintiff has not taken any
steps for recording the death of defendant No.1 and substitution of the
legal heirs of the defendant no.1.
3. Mr. Phiroze Edulji submits that after receipt of the copy of G.A. 8 of
2023, the plaintiffs have filed an application being G.A. No.9 of 2023 for
recording the death of defendant no.1 and substitution of the legal heirs
of the defendant No.1.
4. Mr. Edulji submits that the plaintiffs have also filed affidavit in
opposition in connection with G.A. No. 8 of 2023 in which the plaintiffs
have made false and misleading claim in paragraph 3 (xi) which reads
as follows:
"The plaintiffs have made ienquiries after
receiving the said petition and ascertained that
the defendant No.1 namely Noshir Tankariwala,
one of the Trustee of Late Erward Dhunjeebhoy
Bryamjee Mehta's Zoroastrian Anjuman Atash
Adaran died on 5th September, 2020."
5. Mr. Edulji submits that after the demise of defendant No.1 on 5th
September, 2020, the Parsi Zoroastrian community held an online
memorial service for him on 14th September, 2020 where both the
plaintiff No.1 and her husband spoke on the said occasion.
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6. Mr. Edulji further submits that on 12th September, 2020 another online
memorial service was held and the said event was streamed live on
youtube wherein it is proved that the plaintiffs were present on the said
memorial service through on online.
7. Mr. Edulji submits that the averments made by the plaintiffs that only
after the receipt of the copy of G.A. 8 of 2023, the plaintiffs having
enquired about the death of the defendant No.1 is total misleading and
false statement.
8. Mr. Edulji submits that the plaintiffs have made false statement on
affidavit before this Court and thus the plaintiffs have committed an
offence under Section 193/209 of the Indian Penal Code.
9. Mr. Edulji had relied upon the following decisions in support of his
case:
a. (2002) 1 SCC 253 (Pritish -vs- State Bank of
Maharastra & Others).
b. (2005) 4 SCC 370 (Iqbal Singh Marwah & Another
-vs- Meenakshi Marwah and Another).
c. (2010) 15 SCC 290 (Sharad Pawar -vs- Jagmohan
Dalmiya & Others).
d. 2022 SCC Online SC 1240 (State of Punjab -vs-
Jasbir Singh).
10. Per contra, Mr. Dhruba Ghosh, learned Senior Advocate representing
the respondents submits that no order can be passed in the present
application under Section 340 of the Code of Criminal Procedure for
initiation of proceeding against the plaintiffs.
11. Mr. Ghosh submits that the plaintiffs have filed an application being
G.A. 9 of 2023 for deleting the name of the defendant no.1 and bringing
the name of two new elected trustees in place of the defendant No.1.
12. Mr. Ghosh submits that the application filed by the applicant for
dismissal of the suit as abated being G.A. 8 of 2023 was dismissed by
this Court and the application filed by the plaintiffs being G.A. 9 of
2023 was allowed by deleting the name of defendant No.1 and to bring
on record the name of the two new elected trustees in place of
defendant No.1.
13. Mr. Ghosh submits that this Court has allowed the application of the
plaintiffs on the basis of the law provided under Order I Rule 10 (3) of
the Code Civil Procedure and not on the basis of the averments made in
the affidavit in opposition.
14. Mr. Ghosh submits that on the basis of the statement, the plaintiff has
not obtained any relief from this Court and thus no proceeding under
Section 340 of the Code of Criminal Procedure can be initiated.
15. Heard the learned counsel for the respective parties, perused the
materials on record and the judgement relied by the counsel for the
petitioner.
16. Section 340 of the Code of Criminal Procedure reads as follows:
"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
interests of justice that an inquiry should be made into any
offence referred to in clause (b) of sub- section (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 in 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 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
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.
(4) In this section," Court" has the same meaning
as in section 195."
17. The Supreme Court in the case of K.T.M.S. Mohd. Vs. Union of India
reported in (1992) 3 SCC 178 has held as under:-
''35. 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
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 offence referred to in clause (b) of subsection (1) of
Section 195 and authorises 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 Section 340 of the
Code should be used with utmost care and after due
consideration. The scope of Section 340(1) which
corresponds to Section 476(1) of the old Code was
examined by this Court in K. Karunakaran v. T.V.
Eachara Warrier and in that decision, it has observed:
"At an enquiry held by the Court under Section
340(1), Cr.P.C., irrespective of the result of the
main case, the only question is whether a prima
facie case is made out which, if unrebutted, 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....
The two per-conditions are that the materials
produced before the High Court make out a prima
facie case for a complaint and secondly that it is
expedient in the interest of justice to permit the
prosecution under Section 193 IPC."
36. The above provisions of Section 340 of the Code of
Criminal Procedure are alluded only for the purpose of
showing that necessary care and caution are to be taken
before initiating a criminal proceeding for perjury against the
deponent of contradictory statements in a judicial proceeding.''
18. The Supreme Court in the case of Pankaj Chaudhary reported in
(2019) 11 SCC 575 has held as under:-
''49. There are two preconditions for initiating
proceedings under Section 340 Cr.P.C.:
(i) materials produced before the court must
make out a prima facie case for a complaint for
the purpose of inquiry into an offence referred
to in clause (b)(i) of sub-section (1) of Section 195
Cr.P.C., and
(ii) it is expedient in the interests of justice
that an inquiry should be made into the alleged
offence."
19. Observing 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 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. The Court must be satisfied that such an inquiry is required
in the interests of justice and appropriate in the facts of the case.
20. 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
of Cr.P.C 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 also, it is not mandatory that a
complaint should be filed as a matter of course.
21. Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution Bench
of the Hon'ble Apex Court has gone into the scope of Section 340 Cr.P.C,
Para 23 deals with the relevant consideration:
"In view of the language used in Section 340
Cr.P.C. 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 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."
22. It has been consistently held by the Court that prosecution for perjury
be sanctioned by the courts only in those cases where perjury appears to be
deliberate and that prosecution ought to be ordered where it would be
expedient in the interest of justice to punish the delinquent and not merely
because there is some inaccuracy in the statement. In Chajoo Ram v.
Radhey Shyam, the Hon'ble Apex Court held as under:
"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 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. In the present
case we do not think the material brought to our notice
was sufficiently adequate to justify the conclusion that
it is expedient in the interests of justice to
file a complaint. The approach of the High Court seems
somewhat mechanical and superficial: it does not reflect
the requisite judicial deliberation...."
23. Thus, it is clear that before taking action under Section 340 of Cr.P.C.,
the Court is required to see as to whether:-
"(i) materials produced before the court makes out a
prima facie case for a complaint for the purpose of
inquiry into an offence referred to in clause (b)(i) of sub-
section (1) of Section 195 Cr.P.C., and
(ii) it is expedient in the interests of justice that an
inquiry should be made into the alleged offence."
24. The main contention of the applicants that the plaintiffs have made a
false averment on affidavit in the affidavit in opposition filed by the plaintiffs
in connection with G.A. 8 of 2023. It was the contention of the applicants
that the plaintiffs had the knowledge about the death of defendant No.1 and
the plaintiffs have attended the online memorial service held on 12th
September, 2020 as well as the on 14th September, 2020 but in the affidavit,
the plaintiffs have stated that after only receipt of the copy of G.A. 8 of 2023,
the plaintiffs have enquired about the death of the defendant No.1.
25. After the application filed by the applicant being G.A. 8 of 2023, the
plaintiffs have filed an application being G.A. 9 of 2023 for recording the
death of defendant no.1 and bringing on record, the two new trustees
elected after the death of defendant no.1. Both the applications that is G.A.
8 of 2023 and G.A. 9 of 2023 were taken up together and the application
filed by the applicant being G.A. No. 2023 was dismissed and the
application filed by the plaintiffs being G.A No. 9 of 2023 was allowed by
recording the death of defendant No.1 and bringing the name of the new two
elected trustees on record.
26. The applicants have filed the application being G.A. 8 of 2023 which was
dismissed on merit and the application filed by the plaintiffs being G.A. 9 of
2023 which was allowed on the basis of the provisions of Order1, Rule 10 (3)
of the Code of Civil Procedure, 1908 and not on the basis of the averments
made by the plaintiffs with regard to the knowledge of the death of the
defendant no.1.
27. It is settled law that mere fact that a person has made contradictory
statement in a judicial proceeding is not by itself always sufficient to justify
the 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
in any stage of judicial proceedings or fabricated false evidence for the
purpose of using the same at any stage of judicial proceedings. Even after
the above position has emerged also, still the Court has to form an opinion
that it is expedient in the interest of justice to initiate an inquiry into the
offences of false evidence and offences against the public justice as referred
in Section 340 (1) of Cr.P.C, having regard to the overall factual matrix as
well as the probable consequences of such a prosecution. The Court must
be satisfied that such an inquiry is required in the interest of justice and
appropriate in the facts of the case.
28. In view of the above, this Court do not think the materials brought on
record are sufficiently adequate to justify the conclusion that it is expedient
in the interest of justice to file a complaint.
29. G.A. No. 10 of 2023 is thus dismissed.
(Krishna Rao, J.)
