Delhi High Court
Montreaux Resorts Pvt. Ltd. vs Sonia Khosla & Ors. on 13 November, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve:, September 15, 2009
Date of Order: November 13, 2009
+IA Nos. 4675/09, 4978/09 & Crl. M.A. Nos. 3692, 5869 & 70 of 2009 in OMP 136/08
% 13.11.2009
Montreaux Resorts Pvt. Ltd. ...Petitioners
Through: Mr.P. Nagesh with Mr. Anand M. Mishra, Advocates
Versus
Sonia Khosla & Ors. ...Respondents
Through: Applicant/ respondent in person
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
IA 4675/2009
1. This application has been made by the applicant for restoration of Crl. M.A.
3692/2009. In view of the submissions made therein, the application is allowed and the
Crl. M.A. 3692/2009 is hereby restored to its original number.
Crl. M.A. 3692/2009
1. This application under Section 340 Cr.P.C. has been made by the applicant for
prosecuting the non applicant for purgery and other related offences against justice
allegedly committed by the non applicant before the Arbitral Tribunal on the ground that
the non applicant made numerous false statements in an application under Section 17 of
the Arbitration & Conciliation Act, 1996 made by the non applicant before the Arbitral
Tribunal on 9th April, 2008. Section 340 of Criminal Procedure Code reads as under:
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"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 (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 for 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."
2. A perusal of Section 340 (1) Cr.P.C. reveals that an application made under this
provision can be entertained by a Court in relation to proceedings pending before that
Court itself in respect of documents produced or given in evidence in the proceedings of
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that Court. There is no denial of that fact that no proceedings are pending before this
Court. The applicant has filed this application in view of Section 340(2) of Cr.P.C. which
gives jurisdiction to a superior Court to exercise powers under Section 340 (2) Cr.P.C.,
under certain circumstances, in respect of subordinate courts.
3. I consider that the present application made under Section 340 (2) Cr.P.C would
be maintainable only in case the Arbitral Tribunal is held to be a Court subordinate to the
High Court since the High Court can take cognizance of the offences mentioned under
Section 195 Cr.P.C only if the arbitral tribunal is considered subordinate to the High
Court. I consider that the subordination as envisaged under Section 340 (2) Cr.P.C. is not
merely a judicial subordination, but necessarily means administrative subordination
where the High Court has powers of superintendence including a power to direct the
tribunal under it to carry out its orders and to exercise powers of holding inquiries against
the members of Tribunal with a view to take disciplinary action for administration of
justice. Mere judicial subordination in the sense that the Court can hear objections against
an award given by the Arbitral Tribunal would not convert an arbitral tribunal into a
subordinate court of the High Court. An arbitral tribunal is appointed by the parties under
an arbitration agreement or in case of failure of the parties, it is appointed by the High
Court under Section 11 of the Arbitration & Conciliation Act or under other provisions of
the Arbitration & Conciliation Act. Under no stretch of imagination an arbitral tribunal
can be considered as subordinate to the High Court. Moreover, an arbitral tribunal does
not have features of a Court itself.
4. The Supreme Court in Manohar Lal v Vishesh Anand 2001 (5) SCC 407 after
considering the entire case law had come to conclusion that an arbitral tribunal cannot be
construed to be a Court within the meaning of Section 195 of Cr.P.C as such Section 340
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Cr.P.C. would not be applicable in proceedings before the arbitrator.
5. I, therefore, consider that the present application under Section 340 Cr.P.C is not
maintainable at all and liable to be dismissed. The same is accordingly dismissed.
IA 4978 of 2009 and Crl. M.A. Nos. 5869 & 70 of 2009
In view of my findings in Crl.M.A. 3692 of 2009, the above applications stand
dismissed having become infructuous.
November 13, 2009 SHIV NARAYAN DHINGRA J.
rd
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