Mohan Lal Jatia vs Registrar General, Supreme Court ...
2010 Latest Caselaw 3744 Del

              * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                Date of Reserve: July 29, 2010
                                              Date of Order: 12th August, 2010
Crl. Rev. P. No. 120 of 2010
%
                                                                   12.08.2010

MOHAN LAL JATIA                                                ... Petitioner
                               Through: Mr. K.K. Sud, Sr. Advocate with
                               Mr. Kunal Malhotra & Mr. Mahipal Ahluwalia,
                               Advocates.

              Versus

REGISTRAR GENERAL, SUPREME COURT OF INDIA          ... Respondents
                     Through: Mr. Vikas Pahwa, Standing Counsel
                     for CBI with Mr. Tarun Verma, Advocate.


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the
judgment?                                                     Yes.

2. To be referred to the reporter or not?                            Yes.

3. Whether judgment should be reported in Digest?                    Yes.

JUDGMENT

1. By the present petition, the petitioner has assailed the order of

learned Chief Metropolitan Magistrate (CMM) dated 11th December,

2009, whereby an application of the petitioner for adopting a procedure

of warrant trial as applicable to a complaint case and for recording pre-

charge evidence was dismissed.

2. Brief facts relevant for the purpose of deciding this petition are

that in an SLP pending before Supreme Court, being SLP No. 1330 of

1986, challenging a detention order, an affidavit was filed by accused

Ashok Jain that a representation had been made in the Secretariat of

President of India on 15th April, 1986, and this representation had not

been disposed of by the Central Government. This plea, taken by the

petitioner before the Supreme Court, was contested by Union of India

(UOI) and it was stated that no such representation was filed before the

President of India and a false affidavit was sworned before the Supreme

Court. The Secretariat of President of India filed an affidavit informing

the Court about the procedure by which dak was received and handled

at Rastrapati Bhawan. Register from the office of Rastrapati Bhawan

was produced before the Supreme Court. UOI made an application

under Section 340 of Code of Criminal Procedure (Cr. P.C.) before the

Supreme Court for prosecuting the persons responsible for filing false

affidavit through Mr. Ajay Jain before the Supreme Court. It was also

informed that UOI has referred the matter to Central Bureau of

Investigation (CBI) for investigation. The Supreme Court, vide its order

dated 12th September, 1986, directed CBI to proceed with the inquiry

and directed that the result of inquiry be communicated to UOI. On 29th

April, 1987, Writ Petition and SLP came up for hearing before the

Supreme Court and the Supreme Court dismissed the SLP and Writ

Petition challenging the order of detention and observed that the

detenu and his other associates had gone to deplorable lengths to create

evidence favouring the detenu which aroused convulsion thoughts in the

minds of Supreme Court about the efficiency and integrity of the

concerned sections of President's Secretariat. It further observed that it

was a fit case where detenu, his wife, Ashok Jain and other persons

responsible for fabrication of false evidence should be prosecuted for

the offences committed by them. The Supreme Court deferred the

passing of final order on application of UOI under Section 340 Cr. P.C.

awaiting CBI report. Directions were issued for complete investigation

to be taken up by CBI and the Supreme Court directed its Registrar

(Judicial) to keep relevant records in safe custody in a sealed envelope

till such time they are called for and when the application under Section

340 Cr. P.C. was taken up for final orders. Director of CBI was directed

to get the investigation done and submit report to Ministry of Home

Affairs, Government of India. Subsequent to this, CBI registered a case

vide RC No. 2/87/SIU-III on 1st May, 1987. The CBI submitted its report

to the Department of Personnel and Training on 31st January, 1989,

recommending prosecution of Mohan Lal Jatia, Pushpa Devi Jatia, Ashok

Jatia, Ashok Jain, Gurcharan Singh and Milap Chand under the provisions

of Section 120B, 193, 218, 468, 471, 468, 420 IPC read with Section 511

of IPC. This investigation report was placed before the Supreme Court in

1994. On 20th July, 1994, Supreme Court passed a detailed order

directing its Registrar General to prepare a complaint in terms of Section

195 Cr. P.C. read with Section 340 Cr. P.C. and file it before the

competent Court for action. The complaint was thus filed by Registrar

General of Supreme Court before the Court of CMM, Delhi, on 19th

August, 1994. From 1994 till 1999, the accused persons were being

summoned and ultimately on 27th November, 1999, Metropolitan

Magistrate (MM) observed that compliance under Section 207 Cr. P.C.

has been done. This order of learned MM was assailed by the accused

persons in a Criminal Revision on 14th January, 2000. Thereafter one of

the accused filed an application under Section 210 Cr. P.C., regarding

procedure to be followed when there was a complaint case and police

investigation in respect of the same offence. This application under

Section 210 Cr. P.C. was disposed of vide order dated 15th July, 2000 by

MM observing that the case instituted by the Registrar General of

Supreme Court was to be dealt with as if it was instituted on a police

report in view of Section 343 (1) of Cr. P.C. This order was assailed

before this Court vide Crl. M.C. No. 2452/2000 and the accused also

sought quashing of complaint pending before the Court of MM. This

Court vide order dated 18th March, 2004, dismissed the Crl. M.C. No.

2452/2000. On 11th December, 2009, the petitioner again moved an

application before the Trial Court, again assailing the procedure adopted

by the Trial Court and stated that the Trial Court should adopt the

procedure as mentioned in Chapter XIX-B of Cr. P.C. This application was

dismissed by the learned CMM and this petition has been filed assailing

the order of learned CMM.

3. Chapter XXVI of Cr. P.C. deals with the offences affecting

administration of justice. These are those offences which are committed

by the accused persons or witnesses during pendency of trial or

otherwise when the matter is pending before the Court. While Section

340 of Cr.P.C. gives no details about the procedure to be adopted by a

Court where an offence against administration of justice is committed,

Section 343 of Cr. P.C. provides the procedure to be followed by a

Magistrate to whom a complaint is made under Section 340 Cr. P.C.

Section 343 (1) of Cr. P.C. specifically provides that a complaint made to

the Magistrate under Section 340 or 341 Cr. P.C., notwithstanding

anything contained in Chapter XV (Chapter dealing with complaint

cases), is to be dealt with as if it was instituted on a police report.

Section 344 Cr. P.C. provides for following of a summary trial procedure

for trial in cases of giving false evidence, by the same Court where false

evidence is given. Under Section 344 of Cr. P.C., the trial court has option

to follow summary trial procedure and convict the offender who

commits an offence affecting administration of justice with punishment

up to 3 months imprisonment. It also provides that the Court, at its

discretion, may make a complaint under Section 340 Cr. P.C. Similarly,

Section 345 Cr. P.C. prescribes procedure in cases where offences as

prescribed in Section 175, 178, 179 & 180 of Cr. P.C. or in Section 228 of

IPC (offences of acting administration of justice) and committed by a

person in view or presence of the Court. Under this provision a Court in

whose presence the offence is committed can take cognizance and

summarily sentence the person to a fine not exceeding Rs. 200/- and in

default, simple imprisonment extending to one month can be awarded.

Section 346 Cr. P.C. provides that where procedure of summary trial as

given under Section 345 Cr. P.C. is not followed and the court considers

that punishment of fine of Rs. 200/- was not adequate, the Court may

forward the case to Magistrate, having jurisdiction to try the same.

Section 346 (2) Cr. P.C. again emphasizes that the Magistrate to whom a

case is forwarded under Section 346(1) Cr. P.C., shall proceed and deal

with the case as if it was instituted on a police report.

4. The different provisions of this Chapter make it clear that

intention of Legislature had been that either the offences against

administration of justice should be tried summarily by the concerned

Court or if the complaint is filed by the Court regarding such offences,

the complaint should be treated as a police report. In view of clear

mandate of the statute there can be no doubt about the procedure

which has to be followed by the Courts below and the complaint filed by

the Registrar General of Supreme Court has to be treated as a police

report and the trial of the petitioner and the other accused persons has

to be conducted in the same manner as a trial of a warrant case on

police report case is done.

5. The learned counsel for the petitioner has relied upon Ajay Kumar

Ghose Vs. State of Jharkhand, AIR 2009 SCC 115 to press the point that

procedure to be followed by a Magistrate should be a warrant trial

procedure as provided under Section 244, 245 and 246 of Cr. P.C. and

submitted that since a complaint was filed by the Registrar General of

Supreme Court, pre-charge evidence should be recorded by the Court of

CMM and after recording of pre-charge evidence, it should be

considered whether there was sufficient evidence to frame charge or

not. I consider that this case does not help the prosecution. In Ajay

Kumar Ghose case an official of High Court had filed a complaint under

Section 340 Cr. P.C. The complaint was not accompanied by any material

in support of complaint. The accused appeared in pursuance of

summons sent to him under Section 244 Cr. P.C. and came out with an

application for discharge. The learned MM dismissed the application

and framed charges against the accused. The Supreme Court in para 34

of the Ajay Kumar Ghose judgment observed that there was absolutely

nothing before the learned MM beyond the complaint to consider

framing of charge and the learned MM could have undoubtedly

proceeded under Section 245(2) of Cr. P.C. on the basis of discharge

application and discharged him. In view of Section 245(2) Cr. P.C., the

Court could have discharged the accused even before any evidence was

recorded. Since in the case before learned MM, the complainant was

High Court, no statements were recorded by the Court of MM and there

was no other material before the Court of MM but the Court of MM still

framed the charge. It is under these circumstances that Supreme Court

allowed the SLP and remanded back the case for recording of

complainant's evidence.

6. In the present case, the Supreme Court had ordered holding of an

inquiry by CBI before directing a complaint to be filed against the

petitioner and the CBI had collected entire material which showed the

commission of offence and only after the investigation was completed

by the CBI, that the Supreme Court directed making of a complaint

under Section 340 Cr. P.C. It is not a case where a bare complaint was

available before the Magistrate and there was no other evidence

available before the Magistrate. The Magistrate in this case was to

decide about framing of charge on the basis of evidence available on

record and to see whether charge is made out or not. Moreover, the

Supreme Court in Ajay Kumar Ghose (Supra) case was not asked to

consider if the warrant trial procedure as applicable to complaint cases

was to be followed in all cases under Section 340 Cr. P.C. when a

complaint is filed by the Court. The statute had specifically stated that a

complaint sent by the Court under Section 340 Cr. P.C., notwithstanding

the procedure of Chapter XV of Cr. P.C., has to be considered as a police

report and the case has to proceed as if it was made on a police report.

Thus, procedure as available under Section 245 and 246 of Cr. P.C. of

recording of evidence of complainant twice over would not be the

procedure to be followed.

7. The other case relied upon by the petitioner is Godrej & Boyce

Mfg. Co. Pvt. Ltd. Vs. UOI, 1992 Cri.L.J. 3752 and it has urged that the

Bombay High Court had held that procedure of warrant trial in complaint

case is to be followed. This contention also must fail. In Godrej& Boyce

Manufacturing Co. Pvt. Ltd. (Supra) case, the Court itself observed that

they had not made preliminary inquiry into the case and the Court had

not issued notice to summon at least to some among the prospective

accused.

8. In the present case, a preliminary inquiry was got done by

Supreme Court through CBI and after getting the investigation done

through CBI, the Supreme Court directed its Registrar General to file a

complaint against those persons who were found involved in the offence

in the investigation done by the CBI. I, therefore, consider that no pre-

charge evidence was required to be recorded in the present case and

the procedure being advocated by petitioner, second time before this

Court was not the correct procedure.

9. Even otherwise, I consider that in view of clear mandate of the

statute that the complaint under Section 340 Cr.P.C. is to be treated as a

police report, the procedure to be followed by the learned CMM is that

of a warrant trial case on a police report and not of a warrant trial case

on a complaint.

10. The counsel for the petitioner referred to R.S. Nayak Vs. A.R.

Antulay, 1984 (3) SCC 86 case to justify re-agitating the issue again

before this court and stated that even Supreme Court reversed its own

decision when it found that the earlier decision was contrary to

procedure laid down in Code of Criminal Procedure. We must

remember that A.R. Antulay's case is not an example of civil liberty, but,

is an example of as to how a judicial death can be given to a complaint.

In Antulay's case a complaint of documented corruption died an

unnatural death because of multifarious Writs and SLPs, despite the fact

that for every ton of cement, for which licence was granted, a fixed

amount of donation was paid by the licencees in the Trusts created for

this purpose and the entire payment was documented. Despite all that,

the complaint against corruption got killed and nothing happened,

courtesy Indian Judicial System. The judicial process is often used as a

tool to see that even if there is documented proof of commission of

crime, the accused gets scot free because of multifarious levels of

appeals, writs, revisions, 482 Cr. P.C. petitions and SLPs to which the

accused and petitioners have unlimited access under the present

system. The real judicial reform can come in this country only when,

despite the strength of money power and political power, one is not able

to capture the judicial system and hold it to ransom on the strength of

this power.

11. The present petition is a gross misuse of the judicial process. The

accused persons have came second time before this Court assailing the

procedure being adopted by the learned MM. The whole effort of the

accused persons seems to be not to allow the trial to proceed further.

The case is a glaring example how the trial can be stalled by adopting

delaying tactics. The complaint of an offence committed in 1986 in

respect of administration of justice in Supreme Court, where a false

affidavit was filed, despite investigation got done from CBI by the

Supreme Court followed by a complaint to CMM, Delhi through its

Registrar General in the year 1994 is still at initial stage. From the year

1994, we are in 2010. For these 16 long years, the trial has not

proceeded an inch. Those who talk of judicial reforms must take note of

such numerous cases pending in Courts where the judicial process is

misused to see that the trials do not proceed further.

12. The petition being frivolous is dismissed with cost of Rs. 1,00,000/-

to be deposited with Delhi High Court Legal Services Committee.

SHIV NARAYAN DHINGRA, J.

th 12 AUGUST, 2010 acm