Application/petition under section 340 of Crpc.

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Application/petition under section 340 of Crpc.

Section 340 of Crpc.

 

In respect of offences adverted to in Section 195 CrPC, there is a restriction that the same cannot be entertained unless a complaint is made by a court because the offence is stated to have been committed in relation to the proceedings in that court. Section 340 CrPC is invoked to get over the bar imposed under Section 195 CrPC.      In ordinary crimes not adverted to under Section 195 CrPC, if in respect of any offence, law can be set into motion by any citizen of this country, we fail to see how any citizen of this country cannot approach even under Section 340 CrPC. For that matter, the wordings of Section 340 CrPC are significant. The Court will have to act in the interest of justice on a complaint or otherwise. Assuming that the complaint may have to be made at the instance of a party having an interest in the matter, still the court can take action in the matter otherwise than on a complaint, that is, when it has received information as to a crime having been committed covered by the said provision.

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340. Procedure in cases mentioned in section 195.

(1) When upon an application made to it in this behalf or otherwise any court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary inquiry, if any, as it thinks necessary,-

(a) Record a finding to that effect;

(b) Make a complaint thereof in writing;

(c) Send it to a Magistrate of the first class having jurisdiction;

(d) Take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the court thinks it necessary so to do send the accused in custody to such Magistrate; and

(e) Bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a court by sub-section (1) in respect of an offence may, in any case where that court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the court to which such former court is subordinate within the meaning of sub-section (4) of section 195.

Mrs. Saraswati Chatterjee vs State on 13 March, 2006

Equivalent citations: 129 (2006) DLT 204

Author: B D Ahmed

Bench: B D Ahmed

JUDGMENT

Badar Durrez Ahmed, J.

Page 1065

1. This is an application under Section 340 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘CrPC’) requesting the court to initiate an inquiry into the forgery of an alleged will dated 13.09.1987 alleged to have been executed by the Testator (Late Lt. General Sailendra Nath Chatterjee). This will was produced by the petitioner (Saraswati Chatterjee) in the probate proceedings. It is also prayed by way of this application that a direction be issued authorising the filing of a criminal complaint under Section 195(b)(ii) of the CrPC read with Sections 463 and 467 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’) for the prosecution of Mrs Saraswati Chatterjee, Mr Solil Chatterjee and Mr Komoneya Chatterjee. This court had directed issuance of notice on this application only to Mrs Saraswati Chatterjee and Mr Solil Chatterjee. No notice was issued to Mr Komoneya Chatterjee.

2. It is the contention of the learned counsel for the applicant that the alleged will that was set up in the probate case (Test Case 35/1995) was a forged one and, therefore, Section 195(1)(b)(ii) was attracted and, accordingly, this court could issue directions for filing of a complaint in terms of the provisions of Section 340 of the CrPC. On the one hand, Mr Makhija appearing for Mr Solil Chatterjee and Mr Luthra appearing for Mrs Saraswati Chatterjee, took up a common contention that the application under Section 340 would not be maintainable in view of the Constitution Bench decision of the Supreme Court in the case of Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. .

Page 1066

3. Before the rival contentions of the parties are taken up for consideration, it would be necessary to give a brief resume of facts. There is no dispute that Late Lt. Gen. Sailendra Nath Chatterjee died on 18.11.1991. There is also no dispute that his wife had pre-deceased him and that he left behind only two sons as his legal heirs, namely, Solil Chatterjee and Sanjoy Chatterjee. There is also no dispute that sometime in 1993, Solil Chatterjee filed a partition suit being Suit No.334/1993 in this very court claiming partition of the property left behind by Late Lt. General Sailendra Nath Chatterjee. In the partition suit, it was clearly and categorically stated that Late Lt. General Sailendra Chatterjee died intestate. On 04.03.1994, it appears that a preliminary decree was passed in that partition suit wherein the shares of the two sons, i.e., Solil Chatterjee and Sanjoy Chatterjee were recognised as being 50% and 50%. Thereafter, sometime in 1995, during the pendency of the proceedings in the said suit No.334/1993, a will said to have been left by Late Lt. General Sailendra Chatterjee and purportedly executed on 13.09.1987 was produced by the petitioner (Mrs Saraswati Chatterjee) in the present probate proceedings. In terms of the purported will, the property was to devolve differently. Solil Chatterjee and Sanjoy Chatterjee each were to get 1/3 share in the property, whereas the balance 1/3rd of the property was to be left to one Basudev Chatterjee, who was the Late Lt. General’s brother’s son. It was recorded in the purported will that as Basudev Chatterjee was not enjoying good health, therefore, in the event of his death, his share would devolve upon his wife (Smt Saraswati Chatterjee). It is an admitted position that Basudev Chatterjee died on 10.10.1987 shortly after the purported will is said to have been executed as a result of which Smt Saraswati Chatterjee also became a claimant to 1/3rd of the property left by Late Lt. General Sailendra Nath Chatterjee. It is in the context of this purported will that she was imp leaded as a party defendant in the said partition suit. Thereafter, the proceedings in the partition suit came to be stalled inasmuch as a view was taken that the probate matter be decided first before deciding the partition suit. In the partition suit, however, on interim application, the court had passed an injunction against Sanjoy Chatterjee from entering the property, namely, D-8/5, Vasant Vihar, New Delhi or from alienating his share therein during the pendency of the proceedings. Subsequently, an application was filed on behalf of Sanjoy Chatterjee against this interim order. This court declined to interfere with the interim order already passed by it. Being aggrieved, the said Sanjoy Chatterjee filed an appeal there from before a Division Bench of this court. During the pendency of proceedings before the Division Bench, it was contended by the parties that the matter could be disposed of by inter se bidding between Solil Chatterjee and Sanjoy Chatterjee insofar as the said property, namely, D-8/5, Vasant Vihar, New Delhi was concerned. It is to be noted that the probate proceedings had been filed in 1995 and continued till 2005. At the stage when the matter came up before the Division Bench, as noted above, it was decided that the matter could be disposed of by inter se bidding. Thereafter, an application was moved in the probate proceedings by the said Mrs Saraswati Chatterjee for withdrawal of the same. It was a non-speaking application and it was disposed of by an order dated 16.05.2005, whereby the probate case was dismissed as withdrawn. It is pertinent to Page 1067 note that before the probate proceedings were dismissed as withdrawn, the entire evidence had been recorded. What is noteworthy here is that the statements of the parties were also recorded and also that of a handwriting expert.

4. The position that transpired then was that on the one hand, during the pendency of the probate proceedings, Mrs Saraswati Chatterjee, being the daughter-in-law of the late Lt. General’s brother, claimed a 1/3 share in the estate left by Late Lt. General Sailendra Nath Chatterjee and, on the other hand, his two sons, namely, Solil Chatterjee and Sanjoy Chatterjee claimed that they were the sole heirs having equal shares in the estate left behind by Late Lt. General Sailendra Nath Chatterjee. It is pertinent to note that the will set up by Smt Saraswati Chatterjee, which is at pages 9 and 10 of the probate case and is exhibited as R2W-1/1, was apparently executed in the presence of two witnesses, one of them being Mr Kamoneya Chatterjee and the other Mrs Shailabala Kanjilal. Mrs Shailabala Kanjilal admittedly was the sister of Late Lt. General Sailendra Chatterjee and Mr Kamoneya Chatterjee is the brother of Smt Saraswati Chatterjee. It is the contention of the learned counsel appearing for Mr Sanjoy Chatterjee that the signatures of Smt Shailabala Kanjilal on the will are forged. For this purpose, evidence had been led and the statement of one Ms Geeta Kanjilal, who is the daughter-in-law of Smt Shailabala Kanjilal and who lived with her for over 30 years, was also recorded. In her statement, Ms Geeta Kanjilal had clearly and categorically stated that the signatures at mark A-3 and A-2 of the said purported will are not the signatures of Smt Shailabala Kanjilal, whereas the specimen signatures on the bank documents being Exhibit-R2W-4/1 are those of Smt Shailabala Kanjilal. One Mr Ashok Kashyap, a handwriting expert (DW-7), was also examined and he also made a categorical statement that the signatures appearing at mark ‘A-2′ and ‘A-3′ in the said purported will appeared to be forged and do not appear to be the signatures of Smt Shailabala Kanjilal based upon a comparison with the admitted signatures of Exhibit-R2W-4/1 at mark ‘A’ thereof. Therefore, according to the learned counsel appearing for Mr Sanjoy Chatterjee, it is a clear case of the will having been forged and fabricated as the signatures of one of the witnesses is clearly forged. As regards the signatures of Late Lt. General Sailendra Chatterjee contained on the two pages of the will, he submitted that blank signed letter heads were left by Late Lt. General with his son Solil Chatterjee for various purposes to enable him to carry on correspondence with various Government departments and other agencies whenever he was abroad, in London and some of these blank signed letter heads had been used for the purpose of preparing his will.

5. Under these circumstances, Mr Sanjoy Chatterjee has filed this application under Section 340 of the CrPC claiming the reliefs aforesaid. Since the issue is with regard to the maintainability of the present application under Section 340 of CrPC, it would be necessary to examine straightway the provisions contained therein. Section 340, upon a plain reading, would indicate that it provides for the procedure in cases mentioned in Section 195. Therefore, Section 340 CrPC cannot be read in isolation without reading and examining the provisions of Section 195. Page 1068 Section 195 of CrPC and in particular the portion that is relevant for our purposes, i.e., Section 195(1)(b)(ii) reads as under:-

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) xxx xxx xxx xxx xxx xxx xxx (b) (i) xxx xxx xxx xxx xxx xxx xxx

(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.

Section 340 of the CrPC 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 it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.

(3) A complaint made under this section shall be signed,

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court.

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

Page 1069

6. Upon a plain reading of the two provisions, it immediately becomes clear that where the bar under Section 195(1)(b)(ii) operates, the procedure prescribed under Section 340 of the CrPC gets triggered. The question as to when the bar under Section 195 operates has been settled by the Supreme Court in the case of Iqbal Singh Marwah (supra). In that case, what had happened was that in a probate case, pending before the District Judge, Delhi, a will was set up by one of the parties seeking probate. The same was contested on the ground that the will was a forged one. In the probate proceedings, an application under Section 340 CrPC had been filed. However, that application was kept pending and no decision was arrived at on the application. During the pendency of the said probate proceedings and the said application under Section 340 CrPC, the respondents also filed a criminal complaint before the court of the Chief Metropolitan Magistrate, New Delhi for prosecution under Sections 192, 193, 463, 464, 465, 467, 469, 471, 499 & 500 IPC on the ground that the will set up by the petitioners in the probate case was a forged and fictutious document. The Metropolitan Magistrate, upon consideration of the arguments made before him, came to the conclusion that the question whether the will was a genuine document or a forged one was an issue before the District Judge in the probate proceedings where the will had been filed and, therefore, Section 195(1)(b)(i) and (ii) CrPC operated as a bar for taking cognizance of the offences. The criminal complaint was, accordingly, dismissed by the Metropolitan Magistrate. When a criminal revision against the said order came up before the Sessions Judge, he, relying upon the decision of the Supreme Court in the case of Sachida Nand Singh and Anr. v. State of Bihar Anr.1998 (2) SCC 493, held that the bar contained in Section 195(1)(b)(ii) CrPC would not apply where the forgery of a document was committed before the said document was produced in court. Accordingly, the revision petition was allowed and the matter was remanded to the court of the Metropolitan Magistrate to proceed in accordance with law. The matter was taken up to the Delhi High Court under Section 482 CrPC, but the same was dismissed following the law laid down by the Supreme Court in the case of Sachida Nand Singh (supra). Thereafter, the matter came up before the Supreme Court. While examining the question of the bar under Section 195 CrPC, the Supreme Court observed that the main controversy revolved around the interpretation of the expression ‘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’ occurring in clause (b) (ii) of sub-section 1 of Section 195 of the CrPC. The Supreme Court observed that there were two views possible. One view was the one that was expressed by the Supreme Court in its earlier decision in Surjit Singh and Ors. v. Balbir Singh and

particularly as mentioned in paragraph 10 thereof which reads as under:-

10. It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the court or given Page 1070 in evidence, the bar of taking cognizance under Section 195(1)(b)(ii) gets attracted and the criminal court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offences covered there under.

The other possible view was expressed in Sachida Nand Singh’s (supra) case wherein the Supreme Court observed as under:-

A reading of the clause reveals two main postulates for operation of the bar mentioned there. First is, there must be allegation that an offence (it should be either an offence described in Section 463 or any other offence punishable under Sections 471, 475, 476 of the IPC) has been committed. Second is that such offence should have been committed in respect of a document produced or given in evidence in a proceeding in any court. There is no dispute before us that if forgery has been committed while the document was in the custody of a court, then prosecution can be launched only with a complaint made by that court. There is also no dispute that if forgery was committed with a document which has not been produced in a court then the prosecution would lie at the instance of any person. If so, will its production in a court make all the difference.

7. After examining these two possible interpretations, the Constitution Bench in the case of Iqbal Singh Marwah (supra), came to the clear and categorical conclusion that the view taken in Sachida Nand Singh’s case (supra) was the correct one. In this context, the Constitution Bench observed as under:-

33. In view of the discussion made above, we are of the opinion that Sachida Nand Singh has been correctly decided and the view taken therein is the correct view. Section 195(1)(b)(ii) CrPC would be attracted only when the offences enumerated in the said provision have been committed with respect to a document after it has been produced or given in evidence in a proceeding in any court i.e. during the time when the document was in custodia legis.

34. In the present case, the Will has been produced in the court subsequently. It is nobody’s case that any offence as enumerated in Section 195(1)(b)(ii) was committed in respect to the said Will after it had been produced or filed in the Court of District Judge. Therefore, the bar created by Section 195(1)(b)(ii) CrPC would not come into play and there is no embargo on the power of the court to take cognizance of the offence on the basis of the complaint filed by the respondents. The view taken by the learned Additional Sessions Judge and the High Court is perfectly correct and calls for no interference.

Page 1071

8. The case of Iqbal Singh Marwah (supra), therefore, lays at rest any controversy with regard to the scope and applicability of the bar contained under Section 195(1)(b)(ii) CrPC. It is clear that where the forgery is said to have been committed outside the court and before the forged document is produced in court, then the bar under Section 195(1)(b)(ii) CrPC would not operate and the Magistrate can take cognizance of a complaint filed by an aggrieved party and it would not be necessary to adopt the procedure laid down under Section 340 CrPC. In the present case, one finds that the alleged will, which is said to have been forged, was allegedly forged and fabricated prior to its institution and production before the court. Therefore, the bar under Section 195(1)(b)(ii) CrPC would not operate. If the bar does not operate, then Section 340, which merely prescribes the procedure for dealing with cases where it operates, would not come into play. Therefore, this application under Section 340 CrPC would not be maintainable. This, however, does not mean that the applicant Mr Sanjoy Chatterjee is without a remedy. It is open to him to file a complaint as the bar of Section 195 does not operate and it is open to the Magistrate to take cognizance if and when such a complaint is filed.

9. It was contended as an alternative argument by Mr Banerjee, who appeared for Mr Sanjoy Chatterjee, that, in any event, the filing of a forged and fabricated document before a court and that too a High Court in any proceedings would amount to interference in the course of justice and would ultimately amount to contempt of court as defined in Section 2(c) of the Contempt of Courts Act, 1971. In support of this contention, he relied upon a decision of the Supreme Court in the case ofChandra Shashi v. Anil Kumar Verma . In that case, a fabricated document had been filed by one of the parties and the court ultimately concluded that the filing of a fabricated document amounted to contempt and, in fact, the Supreme Court sentenced the contemnor to two weeks imprisonment. The Supreme Court had also observed that they had restricted the period of imprisonment to two weeks in the hope that the incarceration of the contemnor therein would work as an eye opener and no court would henceforth feel constrained and to do so in any other case. It is in this context that Mr Banerjee submits that even if it were to be held that the application under Section 340 CrPC is not maintainable, the petitioner should, at least, be prosecuted for having committed contempt of court. On this aspect, it is necessary to note that before the court takes out proceedings and decides a contempt petition, the alleged contemnor must have full opportunity to explain that no contempt at all and also to show that even if there was apparent contempt, he did not intend to be so and he should be also given an opportunity of displaying his remorse, if any. In the present case, as noted in the very beginning, while notice was issued to Smt Saraswati Chatterjee and Mr Solil Chatterjee, no notice had been issued to Mr Kamoneya Chatterjee and he is a key figure Page 1072 in the alleged conspiracy in fabricating and / or forging the will as alleged by Mr Sanjoy Chatterjee. Therefore, the matter of contempt cannot be proceeded with in his absence. In these circumstances, this application is disposed of with liberty granted to Mr Banerjee’s client to move an appropriate contempt application for the purposes of taking the proceedings to its logical conclusion.

It is also made clear that it is open to Mr Sanjoy Chatterjee to file an appropriate complaint before the Magistrate, the bar under Section 195(1)(b)(ii) not being operative in this case.

This application stands disposed of

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