Sunday, 27 January 2019

Basic principles to be followed by court prior to initiating prosecution for perjury U/S 340 of CRPC

 The Constitution Bench of the Apex Court in the case of Iqbal
Singh Marwah (supra) interpreted section 340. Paragraphs 23 and 24 of the
said decision reads thus :“
23. In view of the language used in Section 340 CrPC 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. The broad view
of clause (b)(ii), as canvassed by learned counsel for the
appellants, would render the victim of such forgery or forged
document remediless. Any interpretation which leads to a
situation where a victim of a crime is rendered remediless, has
to be discarded.
24. There is another consideration which has to be kept in mind.
Subsection
(1) of Section 340 CrPC contemplates holding of a
preliminary enquiry. Normally, a direction for filing of a
complaint is not made during the pendency of the
proceeding before the court and this is done at the stage
when the proceeding is concluded and the final judgment is
rendered. 

As held
by the Constitution Bench in the case of Iqbal Singh, while deciding
expediency of taking action, the Court cannot weigh magnitude of injury
suffered by the person affected, but the Court is more concerned with the
effect or impact of such commission of offence on the administration of
justice. In view of the facts which are stated above, we are of the view that
at this stage it cannot be stated that the alleged false or misleading
allegations made by the first respondent have any serious impact upon
administration of justice and therefore, at this stage, the prayer made by the
applicant cannot be entertained. We are of the view that as the allegations
and counter allegations will have to be gone into at the time of final hearing
of the Family Court Appeal, at this stage, it is not expedient in the interests
of justice to take action. When we say so, the conduct of the Applicant as
reflected from the record is also taken into consideration. The Applicant has
to come clean by making disclosure of his true income, sources of income,
his assets, etc during the relevant period supported by documents. If a case
is made out, at appropriate stage, this Court can direct recording of
evidence by the Family Court on the case made out by the parties regarding
the income of the husband and the case made out by the wife. We make it
clear that when the appeal is heard on merits, the issues raised by the

applicant in this application as well as prayers will have to be considered by
the Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPLICATION NO.72 OF 2017
IN
FAMILY COURT APPEAL NO.113 OF 2014

Dr. Santosh Chandrashekar Shetty Vs Mrs. Ameeta Santosh Shetty

CORAM : A.S. OKA &
ANUJA PRABHUDESSAI, JJ.

DATED : 25.01.2019
JUDGMENT (PER A.S. OKA, J.):

By Administrative order dated 24th July 2017, the Hon’ble the
Chief Justice assigned this Application as well as Civil Application No.71 of

2017 to this Bench. This application in Family Court Appeal is by the
husband – appellant praying for an action against the first respondent – wife
under section 340 of the Code of Criminal Procedure, 1973 (for short
“Cr.P.C.”). The case made out in the application in short is that the first
respondent – wife made false and misleading statements on oath in her
reply filed to Civil Application No.67 of 2016 and in Civil Application
No.220 of 2016 filed by her. On 24th November 2017, submissions were
heard in this application. Thereafter, this Bench noticed that there is a
transfer application signed and affirmed by the applicant – husband seeking
transfer of Family Court Appeal along with interim applications to any
Bench other than the Bench headed by one of us (A.S.Oka, J.). Therefore,
by the order dated 24th November 2017, this Court directed that the present
application along with Civil Application No.71 of 2017 which was assigned
to this Bench will be taken up only after transfer application is decided
depending upon the outcome of the transfer application. By the order dated
14th June 2018 passed by the Hon’ble the Acting Chief Justice on the
Administrative Side, the transfer application was ordered to be filed and
accordingly, we have reheard the present application.
2 The applicant – husband filed a petition for divorce against the
first respondent – wife in the Family Court Appeal at Mumbai. By judgment
and order dated 25th November 2015, the prayer for grant of divorce was
dismissed by the learned Judge of the Family Court. The learned Judge of
the Family Court, inter alia, ordered and decreed the applicant to pay
permanent alimony of Rs.30,000/pm
to the first respondent wife
and
Rs.15,000/pm
to the daughter. Family Court Appeal No.113 of 2014 is
preferred by the applicant husband
against the said judgment and decree.
The first respondent – wife has filed crossobjections.

3 Civil Application No.11 of 2015 was taken out by the first
respondent wife
seeking a direction to dismiss the appeal preferred by the
applicant husband
on the ground of noncompliance
of the decree for
payment of maintenance. On 5th October 2015, a Division Bench of this
Court passed the following order :“
1. The Appellant/husband shall pay to the Respondent/wife an
amount of Rs.1,00,000/within
one week; an amount of
Rs.2,00,000/within
four weeks thereafter; and balance
amount of Rs.5,40,000/within
six weeks from today
towards arrears of maintenance @ Rs.60,000/per
month
from the date of the impugned Judgment and Order. The
Appellant/husband shall continue to pay Rs.60,000/per
month to the Respondent/wife, which amount shall be paid
in the first week of each month.
2. Stand over to 29th October, 2015.
3. In view of the undertaking given by the Appellant/husband
to this Court, the execution of the impugned Judgment and
Order is stayed.”
The undertaking dated 8th February 2017 filed by the
Applicant is on record by which the Applicant has undertaken to pay a
sum of Rs.60,000/per
month to the first respondent – wife on or before
7th day of every month.
4 Civil Application No.67 of 2016 was filed by the applicant husband
for seeking extension of time by nine months for payment of
arrears of maintenance as per the order dated 5th October 2015. On 23rd
March 2016, the Court passed the following order on Civil Application
No.67 of 2016 as well as other Applications:“
1. The Respondent appearing in person states that even as of
today, the Applicant is in arrears of a sum of Rs.50,000/.
Perused the order dated 5th October, 2015. Gross default has
been committed by the Applicant. The submission of the
Respondent appearing in person is that the stay be vacated.

2 If the Applicant wants indulgence, the Applicant will have to
clear arrears of Rs.50,000/within a period of one week from
today and will have to pay costs quantified at Rs.50,000/.
Indulgence can be shown provided the Applicant gives an
unconditional undertaking to this Court to keep on paying
the amount in terms of order dated 5th October, 2015. The
learned counsel appearing for the Applicant seeks time. Place
the application on 6th April, 2016. We make it clear that
unless the amounts as aforesaid are paid by the Applicant
and undertaking is produced before the Court, no indulgence
can be shown to the Applicant.”
5 On 13th April 2016, Civil Application No.67 of 2016 along with
Civil Application Nos.11 and 14 of 2015 were placed before the Court on
which the following order was passed :
“2 The direction of the Family Court in the impugned decree is
to make payment of permanent alimony of Rs.30,000/per
month to the wife and Rs.15,000/per
month to the
daughter with effect from 13th November, 2007. Clause (6)
of the impugned decree directs the applicant to provide
separate accommodation to the wife or else to pay rent of
Rs.15,000/per
month.
3 It prima facie appears from the record that the applicant
– husband who is an Orthopaedic Surgeon has a very
large income. Moreover, what is challenged is a money
decree. In the Appeal preferred by the applicant –
husband, this Court is not powerless to pass an order of
interim maintenance by taking recourse to Section 24 of
the Hindu Marriage Act, 1955.
4 Considering the nature of the impugned decree and
considering the fact that the impugned decree is a money
decree, the applicant will have to deposit the entire
amount due and payable as per the impugned decree as a
condition for grant of stay.
5 Even otherwise, this is a fit case to exercise power of the
Appellate Court under SubRule
3 of Rule (1) of order XLI
of the Code of Civil Procedure, 1908 for directing the
applicant appellant to comply with the monetary part of
the decree.

6 Place the Civil Application No.14 of 2015 along with
connected applications for hearing on 17th June, 2016.
7 There will be adinterim
stay to the monetary part of the
decree subject to the condition of deposit of the
maintenance amount due and payable as per the
impugned decree with the Family Court within a period
of six weeks from today. If the entire amount is not
deposited within a period of six weeks from today, the
adinterim
stay shall stand vacated without any further
reference to the Court.”
(emphasis added)
6 Being aggrieved by the order dated 13th April 2016, the
applicant filed Special Leave Petition (C) No.14517 of 2016 before the Apex
Court. The SLP was dismissed by order dated 30th June 2016. However, the
Apex Court granted time of six months to the applicant husband to deposit
the amount in terms of clause 7 of the order dated 13th April 2016.
7 In the order dated 13th January 2017, when Civil Application
Nos.11 of 2015, 15 of 2015 and 220 of 2016 were placed before this Bench,
it was observed that the applicant husband did not comply with the order
dated 5th October 2015 passed in Civil Application No.11 of 2015. It was
also held that the applicant did not comply with clause 7 of the order dated
13th April 2016 even within the time of six months extended by the Apex
Court. In paragraphs 12 to 19 of the said order, this Bench observed thus :“
12. Thus, the scenario which emerges to day is that the
Appellanthusband
did not comply with order dated 5th
October, 2015 passed in Civil Application No.11 of 2015.
Consequently, the Appellanthusband
did not comply
with clause 7 of the order dated 13th April, 2016 passed
by this Court even though the time was extended by six
months as per the order of the Apex Court.
13. Paragraph 3 of the order dated 13th April, 2016 records a
prima facie finding that the Appellanthusband
is an
Orthopaedic Surgeon and he has a very large income. The
decree of the Family Court directs that the husband shall pay

permanent alimony of Rs.30,000/ per month to the wife and
Rs.15,000/ to the daughter. The learned counsel for the
Appellanthusband
on instructions of the Appellanthusband
has expressed inability to comply with the condition imposed
by clause 7 of the order dated 13th April, 2016.
14. Thus, there is a gross breach committed by the Appellanthusband
of the aforesaid orders. The Appellanthusband
has not deposited entire arrears of maintenance payable
as per the impugned decree. We may reiterate here that
under the order dated 13th April, 2016 time of six weeks
was granted to deposit the entire arrears, which was
extended by six months by the Apex Court, which expired
on 30th December, 2016.
15. Therefore, considering this conduct, even assuming that as of
today adinterim
order dated 5th October, 2015 passed in
Civil Application No.11 of 2015 continues to operate, the
same will have to be forthwith vacated.
16. Accordingly, we hold that the order of stay dated 5th
October, 2015 stands vacated. We also make it clear that
the adinterim
stay of the operative part of the decree is
not operative as the same stood vacated on the failure of
the Appellanthusband
to comply with the clause 7 of the
order dated 13th April, 2016.
17. We therefore, direct that the Civil Application No.11 of 2015
shall be fixed for hearing on 10th February, 2017.
18. We make it clear that even the show cause notice issued in
terms of clause 2 of the order dated 22nd July, 2016 will be
heard on that day.
19. We also make it clear that the question of initiating the
action against the Petitioner under the Contempt of
Courts Act, 1971 for breach of undertaking recorded in
the order dated 5th October, 2016 will be considered on
the next date.”
(emphasis added)
8 Civil Application No.71 of 2017 has been filed by the applicant
husband
for recall of the order dated 13th January 2017. By the
administrative order dated 24th July 2017, the Hon’ble the Chief Justice
directed that Civil Application Nos.71 and 72 of 2017 be placed before this
Bench. As the submission of the learned counsel appearing for the applicant

is that Civil Application No.72 of 2017 should be heard first, we have taken
up the said application for hearing.
9 In the present application, the contention of the applicant is
that deliberate false and misleading statements have been made by the first
respondent wife in her reply to Civil Application No.67 of 2016. The case
made out in the application is that false statements have been made about
the material facts by the first respondent wife
in her Civil Application
No.220 of 2016 filed for enhancement of maintenance. The alleged false
and misleading statements on the basis of which relief is claimed have been
set out in the present application. The learned counsel appearing for the
applicant invited our attention to the said averments.
10 Firstly, he relied upon the following averments in paragraph 8
of the reply to Civil Application No.67 of 2016 :“……
The Applicant is partner in Orbit Hospital and is also owner
of 2 hospitals further stating that the Applicant owns 1 Mercedes
Car and 2 BMW Cars, That the Applicant owns an apartment on
the 40th Floor Imperial which has 7 – star Super luxury
apartments, Applicants owns Sai Sparsh Hospital and is owner of
Hospital in Boisar which is in collaboration with the TATA
group….”
The learned counsel appearing for the applicant submitted that
the applicant is not the owner of any house and he is staying on rental basis
in Mumbai. He submitted that the applicant is not the owner of any hospital
and is not carrying out any business in partnership. He submitted that
Mercedes Car belongs to applicant’s sister and BMW Car belongs to a
business group where his sister works as C.E.O.
11 The second instance of false allegations is pointed out in clause
(c) of paragraph 5 of the present application which reads thus :7
of 27

“(c) That the Respondent No.1 has also dishonestly and falsely
mentioned in the same Paragraph no.17 of the said Petition
that “….. The Applicant is First Surgeon in India to use
Oxinim Implants. The Applicants owns Hospital wherein he
was paying Rs.1,00,000/p.
m. as rent and had 4 assistants
whom he was paying Rs.25,000/each
per month….”.
The learned counsel appearing for the applicant submitted that
the applicant is a visiting a consultant attached to various hospitals and gets
work from these hospitals. He submitted that if according to the case of the
first respondent, the applicant is the owner of a hospital, there is no
question of paying rent. The learned counsel appearing for the applicant
submitted that with the malafide intention, the applicant has not mentioned
the name of the hospital allegedly owned by the applicant and no document
is produced is support. He submitted that the allegations made are patently
false without any proof.
12 The learned counsel appearing for the applicant thereafter
pointed out the averments made in paragraph 14 of Civil Application
No.220 of 2016. The said averments read thus :“…..
Stridhan – Jwellery (Worth Rs.3 Crores as of today) Rs.
40 lakhs which was paid in cheque. It may be noted that the
issue of Stridhan is absolutely undisputed by the Respondent
No.1 – husband…”
He urged that the aforesaid statement is contrary to the written
statement filed in the Family Court. He stated that in the FIR lodged with
Vashi Police Station, it has been alleged that the same amount was paid in
cash. He pointed out that the first respondent has mentioned value of
Stridhan as Rs. 25 lakhs in her written statement filed in the Family Court
and Rs.27,35,000/in
the FIR. He relied upon the order dated 7th March
2016 passed by the Court of the Judicial Magistrate at Belapur. He also

invited our attention to the statements made in the crossexamination
of the
first respondent.
13 Thereafter, the learned counsel relied upon the statements
made in paragraph 22(b) by the first respondent in the aforesaid civil
application. The said portion of paragraph 22(b) which is quoted in clause
(e) of paragraph 5 of the present Civil Application reads thus :“….
The Respondent No.1 husband is the first surgeon he was
paying 1 lakh per month as rent and had four assistants whom he
was paying Rs.25,000/each
per month in the year 2010 as per
the orders of the Hon’ble Judge Abhay S. Oka dated 02/03/2010
….
The above statement is a distorted judgment of order passed by
Hon’ble Justice A.S.Oka. In fact in the order it is observed that
“…. In the financial year 2008, 2009 the Applicant has
contributed to the extent of 4,12,339/towards
paid up share
capital as the partner of the firm…
“… The account shows that the Applicant has paid a sum of
Rs.2,00,000/to
his assistants during the said year…..”
The learned counsel appearing for the applicant submitted
that the said statement is based on misreading of the order dated 2nd
March 2010. No such observation was made in the order.
14 The learned counsel appearing for the applicant also invited
our attention to the averments made in paragraph 23(2) of Civil
Application No.220 of 2016 which has been quoted in clause (f) of
paragraph 5 of this Civil Application. The said averments read thus :“….
The Respondent No.1 Husband has acquired his super
speciality qualifications because of the money he forcefully
extracted from Applicant wife and her family members. It
may be noted that the Respondent No.1 Husband’s parents
were financially not in a position to finance their son’s
education given the fact that they had mortgaged their flat
for Rs.3 lakhs in the year 1999….”

The learned counsel appearing for the applicant submitted that
this contention is completely false and devoid of any supporting evidence.
He pointed out the statements made by the first respondent in various
proceedings in support of his contention that false statements have been
made. His contention is that the first respondent is guilty of offences under
sections 191 to 193, 196, 199, 200, 465 to 468, 471 and 474 of Indian
Penal Code. In support of the application, the learned counsel appearing for
the applicant has relied upon large number of decisions.
15 The submission of the learned counsel appearing for the
applicant is that all that he is seeking is a preliminary enquiry on the basis
of which this Court can come to the conclusion whether action under
section 340 of Cr.P.C. is warranted. He pointed out the manner in which the
first respondent – wife is taking undue advantage of the sympathy of the
Court. The false allegations are being made by wife for securing
maintenance. He pointed out that at the stage when the Court considers the
prayer under section 340 of Cr.P.C., the respondent has no right of hearing
and therefore, in the present case, the first respondent wife
is not entitled
to be heard in the matter. We must note that he relied upon certain
decisions in support of this proposition including the decision of the learned
single Judge of this Court in the case of Union of India Vs. Haresh Virumal
Milani1. However, as this legal position appears to be fairly well settled
supported by even the decisions of the Apex Court, we are not referring to
other decisions cited by the learned counsel appearing for the applicant in
support of this proposition. In fact, we have not heard the first respondent –
wife appearing in person.
1. 2017(4) Mh. L.J. 441

16 He relied upon several decisions of various High Courts on the
procedure to be followed while dealing with the applications under section
340 and laid emphasis on the fact that it is the duty of the Court to hold at
least a preliminary inquiry with a view to find out the truth. He relied upon
several observations of the learned Single Judge of the Delhi High Court in
the case of H.S. Bedi Vs. National Highway Authority of India2. He submitted
that the offence of perjury cannot be taken lightly as tendency to commit
such offences is on rise. Relying upon the said decision, he submitted that it
is the duty of the Court to ensure that every litigant comes to the Court with
clean hands and when there is material on record to show that a litigant has
not come to the Court with clean hands, the Court should come down very
heavily on such litigant. He submitted that the tendency to make false
claims before the Court is on rise. He also pointed out the observations
made by another learned Single Judge of the Delhi High Court in the case of
Mrs. Geeta Monga Vs. Ram Chand S. Kimat Rai & Ors. in decision dated 11th
January 2005 in Criminal Application No.76 of 20043. He pointed out that
the Delhi High Court criticized approach of Sessions Court while rejecting
the application under section 340. He also relied upon another decision of
the learned Single Judge of the Delhi High Court dated 7th August 2018 in
the case of Louis Vitton Malletier Vs. Omi and Ors.4. He relied upon the
decision of the Apex Court in the case of Meghmala & Ors. Vs. G. Narasimha
Reddy and Ors.5 which lays down as to what should be the approach of the
Court while dealing with the cases of abuse of process of law and fraud. He
submitted that fraud vitiates all judicial proceedings.
2. (2016) SCC OnLine Del 432
3. MANU/DE/0021/2005
4. MANU/D/2769/2018
5. (2010) 8 SCC 383

17 By way of illustration, he relied upon an order of this Court in
the case of Mr. Bhavesh Dinesh Doshi Vs. Mamta Bhavesh Doshi6. He pointed
out that this Court directed discreet enquiry into a claim made by the
husband who contended that he had no income. He relied upon the decision
of this Court on anticipatory bail application in the case of Ashok Motilal
Saraogi Vs. State of Maharashtra7. He relied upon certain decisions in
support of the legal proposition that though the decisions of other High
Courts do not bind this Court, they have persuasive efficacy. He relied upon
the observations made by the Delhi High Court in the case of Sanjeev Kumar
Mittal Vs. State8 on the procedure to be followed while dealing with the
application under section 340 of Cr.P.C. He invited our attention to a
decision of the Apex Court in the case of State of Goa Vs. Jose Maria Albert
Vales9. He relied upon a decision of this Court in the case of Farheed Ahmed
Qureshi Vs. The State of Maharashtra10 as an illustration where an action
under section 340 was ordered. He invited our attention to the decision of
the Apex Court in the case of Pritesh Vs. State of Maharashtra and Ors.11.
18 He relied upon an order of the learned Single Judge in the case
of Union of India Vs. Harish Virumal Milani12. He urged that the first
respondent whose case is based on falsehood has no right to insist that the
Family Court Appeal should be heard and therefore, the present application
will have to be heard on merits before other proceedings are heard. He
invited our attention to the decision of the Apex Court in the case of
Perumal Vs. Janaki13. He relied upon a decision of the learned Single Judge
of Delhi High Court in the case of Jagdish Prasad Vs. State and Ors.14.
6. 2016 SCC Online Bom 12799
7. 2016 All MR (Cri.) 3400
8. 2011 (121) DRJ 328
9. (2018) 11 SCC 659
10. 2018 SCC Online Bom 960
11. (2002) 1 SCC 253
12. 2018 SCC Online Bom. 2080
13. (2014) 5 SCC 377
14. MANU/DE/0302/2009

19 He urged that it is the duty of the Courts to ascertain the truth.
He relied upon the decision of the Apex Court in the case of Maria
Margarida Sequeira Fernandes and others Vs. Erasmo Jack De Sequeira15. He
relied upon the guidelines laid down by Delhi High Court in the case of
Kusum Sharma Vs. Mahinder Sharma16. The learned counsel submitted that
the offending statements made by the first respondent are only for the
purposes of getting favourable order from the Court which are made
without any supporting evidence. He submitted that all that the applicant is
seeking is holding of a preliminary enquiry so that the Court can come to a
conclusion whether a case is made out to direct filing of a complaint. He
submitted that either this Court can hold an enquiry or can direct any other
authority to hold an enquiry. He submitted that there are litigants such as
the wife in this case who have no regard for the truth and therefore, it is all
the more necessary for this Court to order enquiry.
20 We have considered the submissions. We have carefully
perused each and every decision relied upon by the learned counsel for the
Applicant. The law seems to be well settled on one aspect. When the Court
considers an application under section 340 of the Cr.P.C., the respondent
against whom action is sought has no right of hearing at that stage. That is
the reason why we have not heard the first respondent wife
appearing in
person. As far as section 340 of Cr.P.C. is concerned, there are certain
material decisions of the Apex Court which have not been cited by the
applicant. The first decision is of a Constitution Bench in the case of Iqbal
Singh Marwah and Anr. Vs. Meenakshi Marwah and Anr.17. In the said
decision, the Apex Court has considered the scheme of Chapter XXVI of
Cr.P.C. and the scope of section 340. The Constitution Bench considered
15. (2012) 5 SCC 370
16. 2017 SCC OnLine Delhi 12534
17. (2005) 4 SCC 370

earlier decisions dealing with section 476 of the Code of Criminal
Procedure, 1898 which is pari materia with section 340 of Cr.P.C. Section
195 of Cr.P.C imposes embargo on the power of the Criminal Court to take
cognizance of certain offences concerning administration of justice. Section
195 of Cr.P.C. reads thus :“
195. Prosecution for contempt of lawful authority of public
servants, for offences against public justice and for offences
relating to documents given in evidence –
(1) No Court shall take cognizance —
(a) (i) of any offence punishable under sections 172 to 188 (both
inclusive)of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, attempt to commit, such offence, or
(iii)of any criminal conspiracy to commit, such offence, except on
the complaint in writing of the public servant concerned or of
some other public servant to whom he is administratively
subordinate;
(b) (i) of any offence punishable under any of the following
section of the Indian Penal Code (45 of 1860), namely,
sections 193 to 196 (both inclusive), 199, 200, 205 to 211
(both inclusive) and 228, when such offence is alleged to
have been committed in, or in relation to, any proceeding in
any Court, or (ii) of any offence described in section 463, or
punishable under section 471, section 475 or section 476, of
the said Code, when such offence is alleged to have been
committed in respect of a document produced or given in
evidence in a proceeding in any Court, or (iii) of any criminal
conspiracy to commit, or attempt to commit, or the abetment
of, any offence specified in subclause
(i) or subclause
(ii),
except on the complaint in writing of that Court, or of some
other Court to which that Court is subordinate (2) Where a
complaint has been made by a public servant under clause
(a) of subsection
(1) any authority to which he is
administratively subordinate may order the withdrawal of the
complaint and send a copy of such order to the Court; and
upon its receipt by the Court, no further proceedings shall be
taken on the complaint:
Provided that no such withdrawal shall be ordered if
the trial in the Court of first instance has been concluded (3)
In clause (b) of subsection
(1), the term "Court" means a
Civil, Revenue or Criminal Court, and includes a tribunal

constituted by or under a Central, provincial or State Act if
declared by that Act to be a Court for the purposes of this
section (4) For the purposes of clause (b) of subsection
(1),
a Court shall be deemed to be subordinate to the Court to
which appeals ordinarily lie from appealable decrees or
sentences of such former Court, or in the case of a civil Court
from whose decrees no appeal ordinarily lies, to the principal
Court having ordinary original civil jurisdiction within whose
local jurisdiction such Civil Court is situate:
Provided that—
(a) where appeals lie to more than one Court, the Appellate
Court of inferior jurisdiction shall be the Court to which
such Court shall be deemed to be subordinate;
(b) where appeals lie to a civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the civil
or Revenue Court according to the nature of the case or
proceeding in connection with which the offence is
alleged to have been committed Comments.”
21 Section 340 of the Cr.P.C. reads thus :“
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 subsection
(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 nonbailable
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 subsection
(1) in respect of
an offence may, in any case where that Court has neither made
a complaint under subsection
(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 subsection
(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.”
(underline supplied)
22 The Constitution Bench of the Apex Court in the case of Iqbal
Singh Marwah (supra) interpreted section 340. Paragraphs 23 and 24 of the
said decision reads thus :“
23. In view of the language used in Section 340 CrPC 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. The broad view
of clause (b)(ii), as canvassed by learned counsel for the
appellants, would render the victim of such forgery or forged
document remediless. Any interpretation which leads to a
situation where a victim of a crime is rendered remediless, has
to be discarded.
24. There is another consideration which has to be kept in mind.
Subsection
(1) of Section 340 CrPC contemplates holding of a
preliminary enquiry. Normally, a direction for filing of a
complaint is not made during the pendency of the
proceeding before the court and this is done at the stage
when the proceeding is concluded and the final judgment is
rendered. Section 341 provides for an appeal against an order
directing filing of the complaint. The hearing and ultimate
decision of the appeal is bound to take time. Section 343(2)
confers a discretion upon a court trying the complaint to
adjourn the hearing of the case if it is brought to its notice that
an appeal is pending against the decision arrived at in the
judicial proceeding out of which the matter has arisen. In view
of these provisions, the complaint case may not proceed at all
for decades specially in matters arising out of civil suits where
decisions are challenged in successive appellate fora which are
timeconsuming.
It is also to be noticed that there is no
provision of appeal against an order passed under Section
343(2), whereby hearing of the case is adjourned until the
decision of the appeal. These provisions show that, in reality,
the procedure prescribed for filing a complaint by the court is
such that it may not fructify in the actual trial of the offender
for an unusually along period. Delay in prosecution of a guilty
person comes to his advantage as witnesses become reluctant to
give evidence and the evidence gets lost. This important
consideration dissuades us form accepting the broad
interpretation sought to be placed upon clause (b)(ii).
(emphasis added)
23 The Bench of three Hon’ble Judges of the Apex Court in the
case of Chajoo Ram Vs. Radhey Shyam and Anr.18 had an occasion to
consider the scope of section 476 of the Code of Criminal Procedure, 1878.
18. 1971(1) SCC 774

This provision is pari materia to section 340 of Cr.P.C. In paragraph 7, the
Apex Court has held thus :“
7. 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
: it seems to have ignored the fact that the appellant was a
Panch and authorised to act as such and his explanation was
not implausible. The High Court further appears to have failed
to give requisite weight to the order of the District Magistrate
which was confirmed by the Sessions Judge, in which it was
considered inexpedient to initiate prosecution on the charge of
alleged false affidavit that the appellant had not acted as
Sarpanch during the period of the stay order. The subjectmatter
of the charge before the District Magistrate was
substantially the same as in the present case. Lastly, there is
also the question of long lapse of time of more than ten years
since the filing of the affidavit which is the subjectmatter
of the
charge. This factor is also not wholly irrelevant for considering
the question of expediency of initiating prosecution for the
alleged perjury. In view of the nature of the alleged perjury in
this case this long delay also militates against expediency of
prosecution. And then by reason of the pendency of these
proceedings since 1962 and earlier similar proceedings before
the District Magistrate also the appellant must have suffered
both mentally and financially. In view of all these
circumstances we are constrained to allow the appeal and set

aside the order directing complaint to be filed.”
(emphasis added)
24 In a recent decision in the case of Sergi Transformer Explosion
Prevention Technologies Private Limited and Anr. Vs. CTR Manufacturing
Industries Limited and Anr.19, a Bench of three Hon’ble Judges of Hon’ble the
Apex Court had again an occasion to deal with the scope of section 340. In
paragraph 9, the Apex Court held thus :“
9. The High Court while considering the matter has in our
opinion, failed to appreciate the defence that had been set
up by the appellants. The explanation offered by the
appellants was a plausible one which ought to have been
kept in mind by the High Court while examining whether
the present was a fit case for prosecution of the appellants.
At any rate, the High Court has not adverted to the
question whether it was expedient “in the interest of
justice” to launch the prosecution against the appellants for
the mistake which according to the respondents was
deliberate but unintentional according to the appellants.
According to the appellants the mistake occurred out of a
certain communication gap between the higher officers of
the Company and the operational staff. That prosecution
cannot be lunched just at the asking of a party, is well
established. A long line of decisions of this Court have
examined the circumstances in which the court ought to
invoke that power. The High Court has, while
considering the question of launching prosecution for
perjury, to examine whether it is expedient in the
interest of justice to do so, having regard to the totality
of the circumstances. Inasmuch the High Court has
failed to advert to that aspect and record a finding that
it is expedient in the interest of justice to direct
prosecution, the order passed by the High Court falls
short of the legal requirements.”
(emphasis added)
25 In another recent decision of the Apex Court in the case of
Amarsang Nathaji Vs. Hardik Harshadbhai Patel and Ors.20, the Apex Court
19. (2016) 12 SCC 713
20. (2017) 1 SCC 113

had an occasion to consider the scope of section 340. The Apex Court
heavily relied upon the decision of its Constitution Bench in the case of
Iqbal Singh (supra). In paragraphs 6 to 10, the Apex Court held thus :“
6. 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 Section 199 and
200 of the Penal Code, 1860 (45 of 1860) (hereinafter
referred to as “IPC”); 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) CrPC, having regard to the overall factual matrix as
well as the probable consequences of such a prosecution. (See
K.T.M.S Mohd. v. Union of India). The court must be satisfied
that such an inquiry is required in the interests of justice and
appropriate in the facts of the case.
7. 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 CrPC 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. (See Pritish v. State of
Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253
: 2002 SCC (Cri) 140])
8. In Iqbal Singh Marwah v. Meenakshi Marwah, a Constitution
Bench of this Court has gone into the scope of Section 340
CrPC. Para 23 deals with the relevant consideration: (SCC pp.
38687)

“23. In view of the language used in Section 340 CrPC 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.
9. Having heard the learned counsel appearing on both sides
and having gone through the impugned order and also
having regard to the subsequent development whereby the
parties have decided to amicably settle some of the disputes,
we are of the view that the matter needs fresh consideration.
We are also constrained to form such an opinion since it is
fairly clear on a reading of the order that the Court has not
followed all the requirements under Section 340 CrPC as
settled by this Court in the decisions referred to above
regarding the formation of the opinion on the expediency to
initiate an inquiry into any offence punishable under Section
193 to 196 (both inclusive), 199, 200, 205 to 211 (both
inclusive) and 228 IPC, when such an offence is alleged to
have been committed in relation to any proceedings before
the court. On forming such an opinion in respect of such an
offence which appears to have been committed, the court has
to take a further decision as to whether any complaint should
be made or not.

10. No doubt, such an opinion can be formed even without
conducting a preliminary inquiry, if the formation of opinion
is otherwise possible. And even after forming the opinion
also, the court has to take a decision as to whether it is
required, in the facts and circumstances of the case, to
file the complaint. Only if the decision is in the
affirmative, the court needs to make a complaint in
writing and the complaint thus made in writing is then to
be sent to a Magistrate of competent jurisdiction.”
(emphasis added)
26 In another decision in the case of Kailash Vijayvargiya Vs. Antar
Singh Darbar and Ors.21, the Apex Court reiterated the law laid down in
paragraph 6 of the decision in the case of Amarsang Nathaji (supra).
27 The law laid down by the Apex Court on section 340 of Cr.P.C.
in the aforesaid decisions can be summarised as under :A]
The Court is not bound to make a complaint regarding
commission of offence and the said course will be adopted
only if the Court is of the opinion that it is expedient in the
interests of justice to do so and not in every case;
B] Before ordering filing of complaint, the Court may hold a
preliminary enquiry. But it is not necessary to hold
preliminary enquiry in every case and when the Court is
otherwise in a position to form an opinion which is a
condition precedent for initiating action under section 340,
the Court may dispense with the enquiry;
C] Even if the Court comes to the conclusion that prima facie, a
case of commission of offence is made out, it is not necessary
21. (2018) 12 SCC 373

in every case to direct filing of a complaint. The Court cannot
direct filing of a complaint unless on the basis of material on
record it is of the opinion that it is expedient in the interests
of justice to direct filing of a complaint. As held by the
Constitution Bench of the Apex Court in the case of Iqbal
Singh (supra), expediency will normally be judged by the
Court by weighing not the magnitude of injury suffered by
the person affected by the alleged offence but having regard
to the effect or impact of such commission of offence has
upon the administration of justice.
D] As observed in paragraph 24 of the decision of the
Constitution Bench in the case of Iqbal Singh, normally a
direction for filing of a complaint is not made during the
pendency of proceedings and that is done at the stage when
proceeding is concluded and final judgment is rendered.
28 Thus, from the law laid down by the Apex Court it is apparent
that action under section 340 is to be initiated at the discretion of the Court
and the discretion will have to be exercised considering the aforesaid
parameters laid down. It is in the light of the legal position that the facts of
the case will have to be considered. The decree under challenge is a decree
directing the applicant who is a medical practitioner to pay maintenance of
Rs.30,000/pm
to the first respondent – wife and Rs.15,000/pm
to the
daughter. Even in the present application, in clause (c) of paragraph 5, the
applicant has accepted that he is a Visiting Consultant attached to various
hospitals and gets his work from these hospitals. In the present application,
the applicant has not come out with material particulars with supporting
documents such as his income for the relevant period and the assets held by
him. In the impugned judgment, which is the subject matter of challenge in

Family Court Appeal, in paragraph 82, the learned Judge of the Family
Court, held thus :“
82. The petitioner is renowned surgeon/medical practitioner.
Various documents relating to loan obtained by petitioner
clearly shows that he is successful medical practitioner.
The respondent in her affidavit has stated that he earns at
least 2 lacs per surgery and performs 810
surgery in a
month. At the same time the evidence placed in the form of
I.T. return can not be taken as true income to infer about
earning of the petitioner. He is having ancestral property
and he must have share in it. He is being attached to
various hospitals, like SL. Raheja hospital, Mahim, Seven
Hills hospital Andheri and other hospitals. This shows
that he is earning handsome income. He has not disputed
that he is not attached to various hospitals and earning
handsome income. He claims that he is earns Rs.10 lacs
per annum. That can not be accepted. There is absolutely
no whisper or sound about to show that he earns just
Rs.10 lacs/p.a. Therefore, the claim of maintenance of
respondent will have to be accepted. Considering the
income capacity of the petitioner, needs of the
respondent her childSarayu,
considering standard of
living of the parties, their dependents, it would be
appropriate to award maintenance of Rs.30,000/to
the
petitioner and Rs.15,000/to
daughter Sarayu,
will meet
the ends of justice. Hence, I answer issue No.6 accordingly.”
(emphasis added)
29 As stated earlier, these findings are under challenge in the
Family Court Appeal which is pending and there is a crossobjection
filed by
the first respondent – wife for enhancement. The issue regarding the income
and assets of the applicant will have to be decided at the time of final
hearing of the appeal.
30 By the order dated 5th October 2015 which is quoted above,
more than one direction was issued to the applicant. The first direction was
to pay total amount of Rs.8,40,000/by
three installments towards arrears
of maintenance. The applicant was directed to pay Rs.60,000/pm
to the

first respondent in the first week of each calender month. Civil Application
No.67 of 2016 was filed by the applicant – husband for grant of extension of
time by nine months for payment of arrears as per order dated 5th October
2015.
31 On Civil Application No.14 of 2015 filed by the applicant and
on Civil Application No.11 of 2015 filed by the first respondent – wife, on
13th April 2016 this Court granted stay to the monetory part of the decree
subject to the condition of deposit of maintenance amount due and payable
as per the impugned decree within six weeks from the date date. The Court
observed that if the amount of arrears was not deposited within six weeks,
the adinterim
stay shall stand vacated. SLP No.14517 of 2016 was filed by
the applicant before the Apex Court for challenging the order dated 13th
April 2016. By order dated 30th June 2016, the SLP has been dismissed.
However, the Apex Court extended the time granted by clause 7 of order
dated 13th April 2016 to pay the decretal amount by a period of six months.
In the order dated 13th January 2017 passed by this Court, in paragraph 8, it
is noted that the applicant has not complied with the order of the Apex
Court and therefore, adinterim
stay stands vacated. There is nothing placed
on record to show that the applicant has complied with the order. On the
contrary, the applicant has taken out Civil Application No.71 of 2017 for
recall of order dated 13th January 2017. There is nothing placed on record
to show that the applicant applied for extension of time before the Apex
Court after the expiry of the period of six months granted by the said Court.
32 As stated earlier, the allegations of making false statements are
based on the statements made by the first respondent – wife in reply to Civil
Application No.67 of 2016 as well as in her Civil Application No.220 of
2016. There is also an allegation that there is inconsistency in the
statements made by the first respondent as regards quantum of Stridhan.

Though Civil Application No.71 of 2017 for recall of order dated 13th
January 2017 is pending, the said order dated 13th January 2017 has been
confirmed by the Apex Court by extending time. The issue involved in the
appeal is as regards the right of the first respondent to claim maintenance
and the quantum of maintenance. The issue regarding income of the
applicant, the issue whether he is the owner of hospital and the issue of the
extent of the assets held by him will have to be gone into in Appeal and
Crossobjections.
The issue of Stridhan will have to be gone into at the time
of final hearing. There is no adjudication made so far on the averments
made by the wife on the basis of which this Civil Application is filed. As held
by the Constitution Bench in the case of Iqbal Singh, while deciding
expediency of taking action, the Court cannot weigh magnitude of injury
suffered by the person affected, but the Court is more concerned with the
effect or impact of such commission of offence on the administration of
justice. In view of the facts which are stated above, we are of the view that
at this stage it cannot be stated that the alleged false or misleading
allegations made by the first respondent have any serious impact upon
administration of justice and therefore, at this stage, the prayer made by the
applicant cannot be entertained. We are of the view that as the allegations
and counter allegations will have to be gone into at the time of final hearing
of the Family Court Appeal, at this stage, it is not expedient in the interests
of justice to take action. When we say so, the conduct of the Applicant as
reflected from the record is also taken into consideration. The Applicant has
to come clean by making disclosure of his true income, sources of income,
his assets, etc during the relevant period supported by documents. If a case
is made out, at appropriate stage, this Court can direct recording of
evidence by the Family Court on the case made out by the parties regarding
the income of the husband and the case made out by the wife. We make it
clear that when the appeal is heard on merits, the issues raised by the

applicant in this application as well as prayers will have to be considered by
the Court.
33 Subject to what is observed above, the application is rejected.
We make it clear that we have made no factual adjudication on factual
aspects of the case.
(ANUJA PRABHUDESSAI, J) (A.S. OKA, J )

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