Deepak Khosla vs Anand Mohan Mishra & Ors.
2010 Latest Caselaw 2595 Del

                                       REPORTABLE

                  IN THE HIGH COURT OF DELHI AT NEW DELHI

                                FAO (OS) NO. 221 OF 2010

                                              Judgment reserved on: May 13,2010
                                             Judgment delivered on : May 17,2010
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DEEPAK KHOSLA                                                   ....APPLICANT

                               Through :                        In Person.

                                      VERSUS

ANAND MOHAN MISHRA & ORS.                                       ....NON-APPLICANTS

                               Through:              Mr. Kirti Uppal, Advocate
                                                     Mr. Arvind Nigam, Amicus Curiae

CORAM :-

         HON'BLE MR. JUSTICE A.K. SIKRI
         HON'BLE MR. JUSTICE AJIT BHARIHOKE

         1.       Whether Reporters of Local newspapers may be allowed
                  to see the Judgment?
         2.       To be referred to the Reporter or not?
         3.       Whether the Judgment should be reported in the Digest?


A.K. SIKRI, J.

1. Present proceedings, which are described as First Appeal against Order

(Original Side), i.e., FAO (OS) is in fact a petition moved by the petitioner under

Sub- Section (2) of Section 340 of the Code of Criminal Procedure (hereinafter

referred to as the „Code‟) where under allegations of perjury are levelled against

certain persons arrayed as respondents. These alleged acts of perjury are stated to

have been committed by the respondents in the proceedings arising out of OMP

No.660/2009 titled "Montreaux Resorts (P) Ltd. & Anr. Vs. Sonia Khosla & Anr."

which is a petition under Section 9 of the Arbitration and Conciliation Act, 1996.

The said OMP has not been decided so far and is still pending before the learned

Single Judge of this Court.

2. The allegations, inter alia, in nutshell, are that;

(a) the respondent no.1 who is an advocate gave a false declaration-cum-certificate on 10th November, 2009 in order to get the listing of said OMP before a particular Bench,

(b) even when the respondent no.1 knew that one of his clients claiming to be represented by one Mr. Vinod Surha, was not being represented by its lawful Director, and the Board Resolution dated 27.8.2007 was a forgery, he did not disclose the said forgery though he was under an obligation to do so. On the other hand accepted the vakalatnama signed on the strength of the said Board Resolution.

3. We are not taking note of these allegations in detail. Reason is simple. When

the petition came up for preliminary hearing, we had queried the petitioner about the

maintainability of this petition before a Division Bench without first approaching

the learned Single Judge by filing appropriate application in OMP no. 660/2009,

which is still pending. We had also passed an order requesting Mr. Arvind Nigam,

Senior Advocate to appear and assist us on this legal issue. The arguments are

advanced by the petitioner as well as Mr.Arvind Nigam on this aspect.

4. The entire controversy revolves around interpretation which is to be given to

Section 340 of the Code, which reads 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 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 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 or by such officer of the Court as the Court may authorize in writing in this behalf

(4) In this section, "Court" has the same meaning as in Section 195."

5. The submission of the petitioner was that no doubt under sub-Section (1) of

Section 340 of the Code, such an application is to be made before the Court where

proceedings are pending. However, at the same time, sub-Section (2) of Section 340

of the Code confers powers upon the superior Court as well in those cases where the

concerned Court has neither made a complaint under sub-Section (1) in respect of

that offence, nor rejected an application for making of such complaint. He referred

to the judgment of Bombay High Court in the case of Godrej & Boyce

Manufacturing Co. Pvt. Ltd. and another Vs. Union of India, 1992 Crl. LJ 3752

and particularly following observations contained in para 51 of the said judgment:-

"Viewed from the state of affairs as from the date of production of the document no doubt, the learned Single Judge could have taken action in such a matter. But then the learned Single Judge has neither made a complaint under sub sec (1) of 340, nor rejected any application for making such complaint, this Bench will have the jurisdiction to consider action under that Section. No one has made any application under Section 340. 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-sec. (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 S. 195. The court of the learned single Judge on the Original Side dealing with Writ Petitions would clearly be a court subordinate to the Division Bench hearing appeals on Original Side of this Court, and in view of the assignment of this Court as indicated above, this Court would have the jurisdiction to entertain and decide the present Notice of Motion."

6. He also submitted that the word "may" appearing in sub-Section (2) of Section

340 of the Code is to be construed as mandatory "shall". He referred to few

judgments where the Courts had given such an interpretation reading the expression

"may" as "shall" in a particular context.

7. The first judgment on which he relied upon is the case decided by Rangoon

High Court in the year 1930 titled Government of Burma Vs. Municipal

Corporation, Rangoon, AIR 1930 Rang 297. In that case, the Court held that in

enactments which confer powers, and particularly, in enactments which confer power

on public authorities, language of mere permission may not preclude the existence of

a duty. In the same case, Justice Otter went a step further and held that where a

statute directs the doing of a thing for the sake of Justice or public good, the word

"may" is the same as "shall", and that in such circumstances, the word "may"

undoubtedly has compulsive force.

8. Mr. Khosla further argued that this concept is reiterated by the Apex Court in

the case of Province of Bombay Vs. Khushaldas, AIR 1950 SC 22 wherein it ruled

that in construing a power, the court will read the word "may" as "must" when the

exercise of that power will be in furtherance of the interest of a third person for

securing for him that for which the power was given. Similar construction was

given by the Supreme Court in State of U.P. Vs. Jogendra Singh, AIR 1963 SC

1618, where a discretion is conferred upon a public authority coupled with an

obligation, the word "may" (which otherwise normally denotes discretion) should be

construed to mean a command. It further clarified that, sometimes, the Legislature

uses the word "may" purely out of deference and respect to the high status of the

authority on whom the power and the obligations are intended to be conferred and

imposed in a mandatory sense.

9. The petitioner went to the extent of drawing a parallel between the "criminal

contempt" and "perjury" and submitted that Legislature had treated the offence of

perjury to be much more serious than that of criminal contempt of the Court. It was

clear from the higher quantum of punishment up to seven years and fine for

commission of offence of perjury as against punishment of six months or fine incase

of criminal contempt. Moreover, the limitation provided for criminal contempt was

one year whereas for instituting proceedings under Section 340 of the Code, no

limitation was provided. He submitted that keeping in view the seriousness of the

perjury proceedings, the Legislature has provided "dual jurisdiction" i.e. before the

subordinate court where main proceedings are pending and also before the Superior

Court. He argued that both the forums were concurrently available to the petitioner

and thus it was his opinion to file the petition before the Division Bench without first

approaching the Single Judge where OMP was pending. The justification given by

the petitioner for approaching the Division Bench directly was that the Legislature

desired swiftness of the action by the very terminology in Section 340 (2) of the

Code by incorporation of the word "be" which would mean "immediacy of time" or

"forthwith". Reason was that offence of "perjury" was an offence against justice and,

therefore, those who are polluting the streams of justice needed to be punished

without delay.

10. Mr. Arvind Nigam, learned Senior Advocate did not countenance of the

aforesaid submission of the petitioner. He argued that no doubt, Section 340 of the

Code was procedural but at the same time, it contains a power as well to conduct a

preliminary inquiry, record a finding and make a complaint thereof in writing to a

Magistrate of first class having jurisdiction. He further submitted that the petitioner

admittedly did not file any such application/petition before the learned Single Judge

in OMP no. 660/2009 as conceded by him in para 12 of the present petition itself.

As per Mr. Nigam, sub-Section (2) of Section 340 of the Code was an enabling power

which related to those matters where proceedings were pending before the Division

Bench or when the superior Court was exercising revisional jurisdiction. It was the

submission that in other cases, normally, it was incumbent for the aggrieved person

to first raise his grievance before the Court in which the main proceedings are

pending as the said Court was in a better position to record the finding as to whether

any such perjury was committed or not as it was seized of the main case in which

such an offence is stated to have been committed. These were, therefore, incessant

proceedings.

11. He also referred to the provisions of Section 341 of the Code which deals with

appeal against the orders passed under Section 340 of the Code. This provision reads

as under:-

"341. Appeal.-(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub-Section (1) or sub-Section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195, and superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provision of that section shall apply accordingly.

(2) An order under this section and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.

12. Mr. Nigam argued that Section 341 uses the expression "any court other than

a High Court". Thus, appeal could be filed only if the order passed by the Single

Judge of the High Court under Section 340 of the Code was appealable. High Court

in this sense was one composite Court for the purposes of Section 341 of the Code.

Reading in this manner, for the purposes of these proceedings, Single Judge was not

"subordinate" within the meaning of sub Section (4) of Section 195 of the Code. He

also referred to the provisions of Section 386 of the Code as per which power of the

appellate Court does not include Section 340 thereof.

13. After considering the respective arguments, we find ourselves in agreement

with the submissions made by Mr. Arvind Nigam. The interpretation of sub- Section

(2) of Section 340 of the Code given by the petitioner is wholly untenable and

unacceptable. It is not in doubt and was even conceded that sub Section (1) of the

Code referred to the "Court" before which the main proceedings are pending in

relation to which any of the parties to the said proceedings have committed an

offence referred to in Clause (b) of sub Section (1) of Section 195 of the Code. This

provision enumerates procedure when an offence punishable, intera alia, under

Section 193 to 196, 199, 200, 205 to 211 and 228 of the Code has been committed.

This provision provides that Court shall not take cognizance of any such offence

except on a complaint in writing of that Court or by such officer of the Court as that

Court may authorize, in writing, in this behalf or some other court to which that

Court is subordinate. Thus, such an offence of perjury is triable by the court only if

complaint in writing is made by that court before which any proceedings are pending

and offence of perjury is committed therein. Sub Section (1) of Section 340 of the

Code further casts an obligation on that Court to form an opinion that it is expedient

in the interests of justice that an inquiry is to be made for an offence under Section

195 (1) (b) of the Code. In arriving at this opinion, it should appear to that Court

that such an offence has been committee "in or in relation to a proceedings in that

Court" or "in respect of a document produced or given in evidence in a proceedings in

that Court". For forming this opinion, that Court is required to conduct a

preliminary inquiry and on that basis record a finding to that effect.

14. Two things follow namely (a) a person making a grievance that another

person has allegedly committed perjury, has not been given a right to file a

complaint before the Magistrate directly. He has to approach the Court where

proceedings are pending and perjury is allegedly committed in or in relation to those

proceedings; (b) even the said Court before making a complaint has to form an

opinion in this behalf and for forming an opinion, it has to conduct a preliminary

inquiry. The reason is simple. Not only at this stage the alleged offender is not given

notice, perjury proceedings are serious proceedings as well. No doubt, if any person

has committed perjury he is to be dealt with sternly. At the same time, reason for

prescribing such a procedure is to ensure that there is no misuse by any person by

filing frivolous and malicious proceedings. Keeping in mind these considerations, the

Legislature has rightly given the jurisdiction to deal with such an application under

Section 340 of the Code, to the Court where main proceedings are pending. It is that

Court which is in the grip of the entire matter and is in a better position to assess the

allegations made in the application filed under Section 340 of the Code.

15. Once we keep in mind this rationale behind sub-Section (1) of Section 340 of

the Code, the raison d'etre behind sub-Section (2) of Section 340 also becomes obvious

and interpretation thereof would not pose any difficulty. The superior Court is

empowered to deal with such an application for perjury only when the Court at first

instance has omitted to or has failed to take an action on this application. Unless

there is failure to exercise jurisdiction by the court of first instance, higher court

under Section 340 (2) cannot be approached. It is for this reason that sub-Section (2)

of the Code specifically provides that superior Court to which such former Court, (i..e.

Court prescribed under sub-Section (1) of the Code) is subordinate, can do the same

exercise which is required to be done by such former Court when the former Court

has; (a) neither made a complaint under sub Section (1) in respect of that offence; (b)

nor rejected an application for making such complaint. These pre-conditions clearly

signifies that there has to be a complaint filed, in the first instance, before the Court

where the main proceedings are pending. Only when such application is filed but

that Court does not make a complaint under sub-Section (1) of Section 340 of the

Code to the competent Magistrate and does not even reject the application, the

superior Court will swing into action. This may happen when the Court disposes of

the main proceedings but omits or fails to pass any order on the application moved

by a person seeking initiation of perjury proceedings by filing a complaint by that

Court. Normally, the attention of the superior Court in such a situation shall be

drawn when the superior Court is seized of the main matter in appeal.

16. The argument as to whether word "may" occurring in sub-Section (2) of the

Code is mandatory or directory, becomes unnecessary in view of aforesaid

interpretation given to Section 340 of the Code.

17. The petitioner had submitted that filing of such an application before the

learned Single Judge would be a mere formality as on the very next date, it would be

permissible for the petitioner to move the Division Bench by taking the plea that

application filed by him is not rejected and complaint is also not made by that Curt

under Sub-Section (1) of the Code. This is not the manner in which the expression

"Court has neither made a complaint under sub-Section (1) in respect of that offence

nor rejected an application for making of such complaint" can be read. It signifies

the situation where application is moved, which is kept pending and in the meantime,

main proceedings are disposed of and in so far as that application is concerned, either

necessary inquiry was not made or if inquiry was made, no opinion was formed and

complaint made under sub-Section (1) of the Code and application was also not

disposed of.

18. If after the inquiry that Court forms an opinion that prima facie no such

offence of perjury is made out, it can reject the application. That would not give rise

to a situation contemplated in sub-Rule (2) of Section 340 of the Code. In that

eventuality, the aggrieved party can file an appeal under Section 341 of the Code,

subject to its admissibility. It is only when application is also not rejected and no

decision taken thereon and complaint is also not made, that sub Section (2) would

be attracted enabling the superior Court to take cognizance. We are, therefore, of

the opinion that this petition is not maintainable as it is not open to the petitioner to

approach the Division Bench straightway without resorting to remedy provided

under sub Section (1) of Section 340 of the Code by filing application in the OMP

660/2009 in the first instance.

19. The petitioner had also raised the issue that in proceedings under Section 340

of the Code, while holding an inquiry on the application and deciding as to whether

complaint is to be made or not, the Court is not to give issue notice to the prospective

accused persons. It is not necessary to deal with this issue at length inasmuch as Mr.

Nigam had conceded to this position.

20. Before we part with, we want to make two comments about the pleadings

contained in the petition. The petitioner alleged in para 12 of the petition that even

otherwise he does not wish to prefer this matter before the Single Bench because of

its "bias:" Though at the time of arguments petitioner did not press this contention

because of in change Roster, we find these utterances as totally untenable, uncalled

for and unjustified to say the least. No doubt, petitioner is not a lawyer or law

graduate and appears in person and has drafted the petition also. At the same time,

such type of loose allegations and irresponsible pleadings are to be eschewed.

21. Other comment also relates to the pleadings qua the prospective accused

persons, most of whom are lawyers. If in the perception of the petitioner some of

the acts committed by these lawyers in certain proceedings, amount to perjury, he is

entitled to move appropriate application. But he has to be careful about the language

used by him in respect of those lawyers. Here again, we find irresponsible and loose

allegations made by the petitioner against these lawyers as if the petitioner was

pronouncing on the conduct of those lawyers. The petitioner should recite his

grievance and desist from crossing the limits by using all kinds of adjectives at this

stage, before even the veracity of his allegations is tested by the Court.

22. We hope that the petitioner adopt a caution, in this behalf, in future. As far as

this petition is concerned, the same is dismissed as not maintainable. All the

applications also stand disposed of.

(A.K. SIKRI) JUDGE

(AJIT BHARIHOKE) JUDGE MAY 17, 2010.

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