Bombay High Court
Shri. Prakash S/O Gopalrao Pohare vs Serum Institue Of India Private Limited … on 13 August, 2025
445 appw133.24.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPW) NO.133/2024
IN
CRIMINAL WRIT PETITION NO.625 OF 2024
Serum Institute of India Private Limited, through its Authorized
Representative Shri Rajesh Bhagwat and ors
..vs..
Shri Prakash s/o Gopalrao Pohare
Shri Prakash s/o Gopalrao Pohare : Applicant
...............................................................................................
Office Notes, Office Memoranda of Coram,
appearances, Court orders or directions Court's or Judge's Order
and Registrar's orders
...............................................................................................
Shri Nilesh Ojha, Counsel and Shri S.R.Narnaware, Shri
C.D.Rohankar, and O.D.Kakde, Advocates for the
Applicant/Respondent.
Shri Anand Jaiswal, Senior Counsel assisted by Shri Ritesh Badhe,
Advocate for the Petitioners.
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 10/07/2025
PRONOUNCED ON : 13/08/2025
1. By this application, the applicant is seeking an
action as per Section 379 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 by taking cognizance for making
false, scandalous, unfounded, scrupulous, reckless,
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contemptuous, and grossly defamatory allegations against
learned Civil Judge Senior Division by the petitioners in
their memo of petition.
The applicant is further seeking directions to the
Registrar of this Court to file a complaint against the
petitioners.
2. The applicant filed a suit bearing Special Civil
Suit No.417/2023 before learned Civil Judge Senior
Division, Nagpur for declaring perpetual injunction,
damages, and compensation against the petitioners Serum
Institute of India Pvt.Ltd. and its office bearers. The
petitioners who are original defendants have filed an
application under Order VII Rule 11(A) of the CPC. As per
the allegations, the said application was filed with false
and misleading affidavit by dishonestly suppressing the
material fact. Therefore, the applicant had filed an
application under Section 340 of the Cr.PC for taking action
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under perjury and contempt of court against the petitioners
and co-accused. As per the procedure given under Civil
Manual and as per the directions given by this court in the
case of Kenneth Desa s/o Late John Desa and anr vs. Gopal
s/o Leeladhar Narang, reported in 2007 SCC OnLine Bom
1513, the said application was registered as MJC
No.301/2024. In the said application, learned CJSD
conducted a preliminary enquiry. The applicant sought
permission to adduce evidence and after considering the
evidence about falsity and dishonesty of the petitioners and
after hearing learned counsel for the applicant, learned
CJSD at Nagpur came to conclusion that the petitioners
have played fraud upon the court by filing false, frivolous
and misleading affidavit by dishonestly suppressing and
twisting the material facts. Learned CJSD also came to
conclusion that the petitioners have committed contempt of
court and therefore it is expedient in the interest of justice
that dishonest litigants must be prosecuted as per
provisions of Section 340 of the CrPC. Therefore, as per the
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said procedure, learned CJSD directed the Superintendent
of the Court to file a complaint under Section 340 read with
343 of the Cr.PC for offences under Sections 181, 182, 193,
196, 199, 200, 209, 465, 471, and 474 read with 120(B)
and 34 of the IPC against the petitioners.
3. Being aggrieved and dissatisfied with the order
passed by the learned CJSD, the petitioners preferred Writ
Petition No.625/2024. As per the allegations by the
applicant, the petitioners in the said petition also averred
false, scandalous, unfounded, scrupulous, reckless,
contemptuous, and highly defamatory allegations against
the Presiding Officer who has passed the order. The
scandalous allegations made by the petitioners are as
under:
“The Hon’ble Judge had acted “deliberately”,
“with prejudiced mind”, “callously”, “acted by
abusing authority of the Judge”. The filing of
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application under Section 340 of Cr.PC and order
passed on it is completely malafide”, “acted
according to his whim and fancies”, “not having
basic understanding of the law”, “acted
arbitrarily and unreasonably”. “He passed the
order mechanically without understanding the
basic provisions of law”, “passed order
mechanically and superficially” ” Judge made
feeble attempt to justify his mechanical,
unreasoned and superficial order.”
4. Thus, it is contended by the applicant that the
petitioners have made false and misleading statements,
twisted the material facts taking overruled grounds and
blamed learned CJSD who in fact acted as per the
provisions of law and binding precedent of the Hon’ble
Apex Court and this Court. The petitioners committed
serious offences against administration of justice and before
learned CJSD by filing misleading and false affidavit. The
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petitioners, without showing any repentance and tendering
apology, hatched conspiracy and prepared a further false
affidavit dated 8.8.2024 and by playing fraud upon this
court abused of process of court in the present proceeding.
Therefore, it is expedient in the interests of justice and it is
mandatory as per the law laid down in the cases of
Madangopal Banarasilal Jalan and ors vs. Partha s/o Sarthy,
reported in 2018 SCC OnLine Bom 3525; Arun Dhawan vs.
Lokesh Dhawan, reported in 2015 CriLJ 2126; ABCD vs.
Union of India, reported in (2020)2 SCC 52; and Sundar vs.
State, reported in 2023 SCC OnLine SC 310 that action
perjury and contempt of court should be taken against the
petitioners. It is further contended that as per the law laid
down by the Constitution Bench of the Hon’ble Apex Court,
advocates drafting petition with reckless, false, scandalous,
and contemptuous allegation against Judge of the sub-
ordinate courts and helping the dishonest litigants in
abusing the court process in filing the false affidavit, the
action be taken against the advocates also.
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5. The petitioners by filing the affidavit strongly
opposed the said application with contentions that
captioned application ex facie fails to make out any case
for reliefs under Section 379 of the BNSS or the Contempt
of Courts Act. The contempt proceedings cannot be
initiated against a party merely for availing legal remedies
and no contempt can be said to have been committed by
the petitioners merely because they have filed captioned
petition. It is further contended that the averments made in
the petition are not scandalous or false or defamatory. It is
not reckless or malicious also. They have also challenged
the order of learned CJSD in accordance with remedy
available to them and, therefore, no cause is made out to
initiate the action of contempt against them.
6. Heard learned counsel Shri Nilesh Ojha for the
applicant.
7. Learned counsel for the applicant submitted
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that the point falls for consideration is, whether the
petitioners have right to be heard in the proceeding. He
submitted the Hon’ble Apex Court has held that the
petitioners accused do not have right of hearing at the stage
of enquiry i.e. under Section 340(1) of the Cr.PC (379 of
the BNSS). He submitted that in The State of Punjab vs.
Jasbir Singh, reported in (2020)12 SCC 96 the Hon’ble
Apex Court relied on the ratio in the case of Pritish vs. State
of Maharashtra, (2002) 1 SCC 253 but referred to the
Larger Bench in view of subsequent decision of the Hon’ble
Apex Court in the case Sharad Pawar v. Jagmohan Dalmiya,
(2010)15 SCC 290. In the case of The State of Punjab vs.
Jasbir Singh it is noted that three Judge-Bench in Sharad
Pawar supra did not take note of dictum in Pritish and
proceeded to hold that the proposed accused should be
given an opportunity of hearing before the court directs a
preliminary enquiry under Section 340(1) of the CrPC. The
view taken by the Larger Bench in reference in The State of
Punjab vs. Jasbir Singh supra by relying upon the
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constitution bench decision in Iqbal Singh Marwah vs.
Meenakshi Marwah, reported in (2005)4 SCC 370 to hold
that there is no question of opportunity of hearing being
given to the proposed accused under Section 340(1) of the
CrPC. The Hon’ble Apex Court further opined that law laid
down by the Constitution Bench in Iqbal Singh Marwah was
in line with dictum in Pritish and while answering the
reference as to the whether an opportunity of hearing
should be given to the proposed accused before the
complaint is made under section 195 of the CrPC in
negative.
Thus, he submitted that this court is bound by
the law laid down is accordingly not inclined to depart from
the said view, in view of the decision of the
Hon’ble Apex Court in Pritish supra and the above grounds
or good grounds to hold that the petitioner proposed
accused do not have right of hearing at the stage of enquiry
i.e. under Section 340(1) of the CrPC. The court
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accordingly has to proceed with the hearing.
On the same issue, he placed reliance on the
decision in the case of Madangopal Banarasilal Jalan and
ors vs. Partha s/o Sarthy supra wherein also it is held
that at the stage of passing of an order directing the
preliminary enquiry or even accepting application filed
under Section 340 of the CrPC, the accused does not have
any say in the matter. There can be no dispute about the
principle of law. The principle of law will have to be borne
in mind while dealing with this application.
In the case of Gurpreet Singh Kang vs.
Gurpartap Singh, reported in 2013 SCC OnLine P&H 6599
it is held that summoning the accused for the purpose of
holding preliminary enquiry will be the violation of the
concept of criminal jurisprudence.
In the case of Partha Sarathy Saha vs. Nagpur
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District Court, reported in 2005 SCC OnLine Bom 634 the
co-ordinate bench of this court held that the accused has no
right to be heard at the stage of enquiry under Section 340
of the CrPC or even when the complaint is filed before the
Magistrate.
Thus, it is consistent view that the accused has
no right to appear and contest the present application.
8. The further submission of learned counsel for
the applicant is that the application is filed against the
accused seeking prosecution against the petitioners as they
have submitted, false, misleading, and scandalous pleadings
before this court. The actions of the accused include:
A. making false statements on oath;
B. filing fabricated and manipulated affidavits;
and
C. incorporating scandalous and contemptuous
allegations with an intent to mislead the court
and malign the judicial process.These acts constitute grave and cognizable
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offences punishable under Sections 191, 192, 193, 196,
199, 200, 466, and 120B read with 34 of the IPC. It is not
merely a procedural misconduct, but deliberate obstruction
of justice that undermines the sanctity and authority of this
court and, therefore, deterrent criminal action against
accused is required.
9. It is submitted that the defendants moved an
application under Order VII Rule 11 of the CPC seeking
rejection of the plaint. This application was accompanied by
false and misleading affidavit. Therefore, the applicant
invoked the jurisdiction of the court under Section 340 read
with Section 195 of the Cr.P.C and filed an application
seeking initiation of criminal prosecution. In view of
binding precedent in the case of Kenneth Desa s/o Late
John Desa and anr vs. Gopal s/o Leeladhar Narang supra,
the case was registered as MJC No.301/2024 separately.
The applicant filed an application in the said application
requesting the court to proceed with preliminary enquiry
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without issuing notice to the accused and allow the
applicant to lead evidence in support of the allegations.
Upon considering the legal position, learned CJSD was
pleased to allow the application by passing a reasoned
order directing enquiry under Section 340 of the CrPC
without issuing notices. The decision to hear the said
application before civil proceeding is proper and as per the
various decisions of the Hon’ble Apex Court.
10. In Gulab Chaturkar vs. Vimalabai, reported in
2022 SCC OnLine Bom 11964; Union of India and ors vs.
Haresh Virumal Milani, reported in 2017 SCC OnLine Bom
1705, and Iqbal Singh Marwah vs. Meenakshi Marwah
supra, the proceeding in application under Section 340 of
the CrPC is a kangaroo baby within main suit, but
independent and decided only as per Cr.PC. It has to be
decided first before main proceeding in civil case and till
that time the suit may be stale.
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11. Thus, in the light of the above well settled legal
position, the application was decided by learned CJSD, but
suppressing this factual and legal position, the petitioners
made allegations against the presiding officer stating that
they were unaware of the procedure and acted against the
procedure and order was passed deliberately with mala fide
intention to help the applicant. In fact, the trial court acted
fairly and as per the procedure laid down by this court and
by the Hon’ble Apex Court, the petitioner accused made a
false, defamatory, and scandalous allegations against the
Judge below without pointing out any legal provision and
decision of this court or the Hon’ble Apex Court. This act of
the petitioners is not sustainable. The conduct is grossly
dishonest and unethical and, therefore, the action is
required against them. It is further submitted that the
petitioners knowingly made false and misleading
submissions and, therefore, such acts are to be handled
with stern hands and the action is to be initiated against
them by holding preliminary enquiry directing the Registrar
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of this court to lodge a complaint against them.
12. In support of his contentions, learned counsel
for the applicant placed reliance on following decisions:
1. Somu vs. State, reported in 1985 SCC OnLine
Mad 7;
2. Annapurna Nayak (Dr.) vs. Gyan Chand
Varshey, reported in 2007 SCC OnLine Bom
1031;
3. M/s.A-One Industries vs. D.P.Garg, reported in
1999 SCC OnLine Delhi 533;
4. Devinder Mohan Zakhmi vs. The Amritsar
Improvement Trust, Amritsar, reported in 2002
SCC OnLine 439;
5. A1 Amin Garments Haat (P) Ltd vs. Jitendra
Singh, reported in 2024 SCC OnLine Cal 110;
6. Kenneth Desa s/o Late John Desa and anr vs.
Gopal s/o Leeladhar Narang, reported in 2007
SCC OnLine Bom 1513;
7. Gulab Chaturkar vs. Vimalabai, reported in
2022 SCC OnLine Bom 11964;
8. Iqbal Singh Marwah vs. Meenakshi Marwah,
reported in (2005)4 SCC 370;
9. Court on its own motion vs. Virendra Singh,
reported in 2024 SCC OnLine Del 145;
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10. State of UP vs. Ashok Pande, reported in
2025 SCC OnLine ALL 3787;
11. Municipal Council Tikamgarh vs. Matsya
Udyog Sahkari Samiti, reported in 2022 SCC
OnLine SC 1900;
12. Mohan Chandra P. State of Karnataka,
reported in 2022 SCC OnLine SC 2336;
13. Baradakanta Mishra vs. The Registrar of
Orissa High Court and anr, reported in 1974 (1)
SCC 374;
14. B.A.Shelar vs. M.S.Menon, reported in 2001
SCC OnLine Bom 230;
15. A.N.Shanmugam vs. G.Saravanan, reported
in (2009)15 SCC OnLine Madras 728;
16. Shri Narayan Ganesh Gadekar Vs. Smt.
Parvati Sagun Gadekar, reported in 2013 Allah
MR (Cri) 1349;
17. Prafulla Hedge vs. Vineeta Vaze, reported in
2014 SCC Online Cri 1349;
18. M.A.Rumugam vs. Kuttu, reported in
(2009)1 SCC 101;
19. Surinder Kumar vs. Raj Mal Saini, reported
in 2016 SCC ONLine P&H 10517;
20. So Nayak Desai Yashwant Deshi vs.. 2009
SCC ONLine Bom 1400;
21. Joy Anto vs. C.R.Jaison, reported in 2021
SCC OnLine Ker 16385;
22. Prabhakaran vs. Gangadharan, reported in
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2006 SCC OnLine Kerala 302.
23. M.N.Damani vs. S.K.Sinha and ors, reported
in (2001)5 SCC 156;
24. Rosario Colaco vs. Amelio Mariqu9inha
Zuzarte and anr, reported in 2009 SCC OnLine
Bom 110;
25. Ram Jethmalani vs. Subramanian Swamy,
reported in 2006 SCC OnLine Del 14;
26. Madhuri Mukund vs. Mukund Martand,
reported in 1990 SCC OnLine Bom 410;
27. The Municipal Corporation Of Greater
Bombay vs. Smt. Annatte Raymond Uttanwala
anr, reported in 1985 SCC OnLine Bom 495;
28. R. Muthukrishnan vs The Registrar General
Of The High Court of Judicature at Madras,
reported in (2019)16 SCC 401;
29. Baduvan Kunhi vs. K.M.Abdulla , reported in
2016 SCC OnLine Kerala 23602
30. Siloo Danjishaw Mistri vs. State of
Maharashtra and ors, reported in 2016 SCC
OnLine Bom 3180;
31. Ashok Kumar Sarogi vs. State of Mah,
reported in 2016 ALL MR (Cri) 3400;
32. Ranbir Singh vs. State, reported in 1990(3)
Crimes 207;
33. HS Bedi vs. National Highway Authority of
India, reported in 2016 SCC OnLine Del 432;
34. K. Ram Reddy vs. State of A.P. and Another,
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reported in 1997 SC OnLine AP 1210;
35. P.V.R.S. Manikumar vs. Krishna Reddy,
reported in 1999 SCC OnLine Madars 107;
36. Lal Bahadur Gautam vs. State Of Uttar
Pradesh And Others, reported in (2019)6 SCC
441;
37. Dr.Sarvepalli Radhakrishnan University vs.
Union of India, reported in (2019)14 SCC 761;
38. Godrej and Boyce Manufacturing Co.Pvt.Ltd.
vs. Union of India, reported in 1991 SCC Online
Bom 496;
39. Afzal & Another vs. State Of Haryana &
Others, reported in (1996)7 SCC 397;
40. Arun Dhawan vs. Lokesh Dhawan, reported
in 2015 CriLJ 2126;
41. Sundarjas Kanyalal Bhathija and Ors. vs.
Collector, Thane, Maharashtra and Ors., reported
in AIR 1990 SC 261;
42. Anurag Kumar Singh ..Petitioner State Of
Uttarakhand, reported in (2016)9 SCC 426;
43. New Delhi Municipal Council vs. M/s.
Prominent Hotels Limited, reported in 2015 SCC
OnLine Delhi 11910;
44. Kusum Kumria and Ors vs. Pharma Venture
(India) Pvt. Ltd. and Anr, reported in 2015 SCC
OnLine Del. 13042;
45. Priya Gupta & Anr vs. Addl. Secy. Ministry Of
Health & Family Welfare & Others, reported in
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(2013)11 SCC 404;
46. State Of Maharashtra vs. Mangesh And
Others, reported in 2020 ALL Mr (Cri) 2979, and
47. Perumal vs. Janki, reported in (2014)5 SCC
377.
13. Thus, the application is filed by applicant Shri
Prakash Pohare who is the respondent in the writ petition
on the ground that while filing the writ petition, the
petitioners played fraud upon the court by filing false,
frivolous, and misleading affidavit alleging scandalous,
unfounded, scrupulous, reckless, contemptuous, and highly
defamatory allegations against the Presiding Officer. It is
contended that scandalous allegations made by the
petitioners that, “The Hon’ble Judge had acted
“deliberately”, “with prejudiced mind”, “callously”, “acted
by abusing authority of the Judge”. The filing of
application under Section 340 of Cr.PC and order passed on
it is completely malafide”, “acted according to his whim and
fancies”, “not having basic understanding of the law”,
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“acted arbitrarily and unreasonably”. “He passed the order
mechanically without understanding the basic provisions of
law”, “passed order mechanically and superficially” ” Judge
made feeble attempt to justify his mechanical, unreasoned
and superficial order,” which are serious and malice
conduct of the petitioners and their counsels. Therefore,
the action under Section 340 of the CrPC requires to be
taken against them.
14. Before entering into the merits of the case, it
would be appropriate to reproduce Section 340 of the
Cr.PC, 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
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(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 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 of
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
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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
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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
authorise in writing in this behalf.] [ Substituted
by Act 2 of 2006, Section 6, for Cl. (b) (w.e.f.
16-4-2006). Prior to its substitution, Cl (b) read
as under : – [(b) in by other case, by the
presiding officer of the Court].]
(4) In this section, “Court” has the same
meaning as in Section 195.
15. Section 195 (1)(b) of the CrPC is also relevant,
which is also reproduced as under :
“195(1)(b)
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(i) of any offence punishable under any of the
following sections 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 sub-clause (i) or sub-clause
(ii),
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[except on the complaint in writing of that Court
or by such officer of the Court as that Court may
authorise in writing in this behalf, or of some
other Court to which that Court is subordinate.]
[Substituted by Act 2 of 2006, Section 3 for
“except on the complaint in writing of that
Court, of some other Court to which that Court
is subordinate” (w.e.f. 16-4-2006).]
16. Thus, the contentions of the applicant is that as
the scandalous and false allegations are levelled against
learned CJSD, the action is required.
17. Learned counsel for the applicant vehemently
submitted that the procedure is followed by the CJSD and
by observing that for action under Section 340 of the CrPC,
the preliminary enquiry is required. Learned CJSD, after
conducting a preliminary enquiry, passed an order directing
the Superintendent of the Court to register the FIR. To
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substantiate his contentions, he placed reliance on the
catena of decisions. As far as issue raised by the applicant
that whether the application under Section 340 of the CrPC
has to be decided first before adjudicating the proceeding is
now settled. It is settled that the said application is to be
decided first.
18. The another issue raised by the applicant that
the accused have no locus to make submissions on the
application filed under Section 340 of the Cr.PC is also
settled.
19. He placed reliance on Dalip Singh vs. State of
UP and anr, reported in (2010)2 SCC 114; Ramrameshwari
Devi and ors vs. Nirmala Devi and ors, reported in (2011)8
SCC 249; Kishore Samrite vs. State of UP and ors, (2013)2
SCC 398 wherein it is held that, “it is very well settled that
a persons whose case is based on falsehood has no right to
approach the court and he is not entitled to be heard on
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merits and he can be thrown out at the stage of litigation”.
20. In Tiscon Realty Private Limited vs. C.G. Edifice,
2023 SCC OnLine Bom 1154 it is held that the defendant
should not be allowed leave to defend on the pretext of
making false oath on the affidavit. It is further held that if
a party comes to court with unclean hands or basis its case
and/or defence on falsehood, as has been done in the
present case, the party should be dealt with very strongly
and substantial costs and also should be imposed on the
party.
21. In the case of Union of India and ors vs. Haresh
Virumal Milani supra it is observed that if the court is of
opinion that it is expedient in the interests of justice that an
inquiry should be made into any offence, it means that the
Court has to undergo a process of formation of opinion in
respect of would be or proposed inquiry. Thus it is a
process of not confirming of the offence or guilt, but just
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formation of opinion that the matter is worth, having some
material which apparently constitutes an offence as
specified under Section 195 of Code of Criminal Procedure,
to send it to a magistrate of the First Class having
jurisdiction. Thus it is a stage of a preliminary inquiry,
wherein the Judge need not go in depth of the assessment.
It is further held that hearing of the person against whom
prosecution is likely to be instituted is not contemplated.
22. In The State of Punjab vs. Jasbir Singh supra, the
Hon’ble Apex Court was considering the issue whether
Section 340 of the Code of Criminal Procedure, 1973
mandates a preliminary inquiry and an opportunity of
hearing to the would-be accused before a complaint is
made under Section 195 of the Code by a Court. The
Hon’ble Apex Court held that there is no question of
opportunity of hearing in a scenario of this nature and we
say nothing else but that a law as enunciated by the
Constitution Bench in Iqbal Singh Marwah‘s case supra is in
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445 appw133.24.odt
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line with what was observed in Pritish‘s case supra. The
answer thus raised to the question raised can be granted.
23. In the case of Devinder Mohan Zakhmi vs. The
Amritsar Improvement Trust, Amritsar supra also the aspect
was considered and it is held that the accused has no right
to participate at this stage.
24. Thus, it is settled law that at this stage the
accused against whom the action is sought is not entitled to
participate in the said proceeding.
25. Sub-section (1) of Section 195 of the CrPC
creates a bar in taking cognizance on the complaint filed by
the respondent. The controversy revolves around the
interpretation that “when such offence is alleged to have
been committed in respect of document produced or given
in evidence in a proceeding in any court. After going
through the provisions especially Section 195(1)(b)(ii), it is
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clear that for taking cognizance of an offence, the
document or the allegation of a false evidence or a forgery
if produced before the court, 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
complaint in writing is filed as per the procedure prescribed
under Section 340 of the Code or by on behalf of the court.
The object is to preserve purity of the administration of
justice and to allow the parties to adduce evidence.
26. Thus, the scope of the preliminary enquiry
envisaged in Section 340(1) of the Code is to ascertain
whether any offence affecting administration of justice has
been committed in respect of a document produced in court
or given in evidence in a proceeding in that Court. In other
words, the offence should have been committed during the
time when the document was in custodia legis.
27. While dealing with the provisions under Sections
…..30/-
445 appw133.24.odt
31
340 and 341 of the CrPC, the Constitution Bench of the
Supreme Court in Iqbal Singh Marwah supra observed that
in view of the language used in Section 340 Cr.PC 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
…..31/-
445 appw133.24.odt
32
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.
It is further held by the Hon’ble Apex Court that
there is another consideration which has to be kept in mind.
Sub-section (1) of Section 340 Cr.PC contemplates holding
of a preliminary enquiry. Normally, a direction for filing of a
…..32/-
445 appw133.24.odt
33
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 foram which are time-consuming. 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. In view of these provisions, the complaint case may
not proceed at all for decades specially in matters arising
…..33/-
445 appw133.24.odt
34
out of civil suits where decisions are challenged in
successive appellate foram which are time-consuming. 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 long 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 from accepting the
broad interpretation sought to be placed upon clause (b)
(ii).
The Hon’ble Apex Court further observed that
judicial notice notice can be taken of the fact that the courts
are normally reluctant to direct filing of a criminal
complaint and such a course is rarely adopted. It will not be
…..34/-
445 appw133.24.odt
35
fair and proper to give an interpretation which leads to a
situation where a person alleged to have committed an
offence of the type enumerated in clause (b)(ii) is either
not placed for trial on account of non-filing of a complaint
or if a complaint is filed, the same does not come to its
logical end.
28. In KTMS Mohd. and anr vs. Union of India,
reported in (1992)3 SCC 178, it has been held that, “in this
context, reference may be made to Section 340 of the Code
of Criminal Procedure under Chapter XXVI under the
heading “Provisions as to certain offences affecting the
administration of justice”. This section confers an inherent
power on a Court to make a complaint in respect of an
offence 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, if that Court is of opinion that it is expedient in the
interest of justice that an enquiry should be made into an
…..35/-
445 appw133.24.odt
36
offence referred to in clause (b) of sub-section (1) of
Section 195 and authorizes such Court to hold preliminary
enquiry as it thinks necessary and then make a complaint
thereof in writing after recording a finding to that effect as
contemplated under sub-section (1) of Section 340. The
words “in or in relation to a proceeding in that Court” show
that the Court which can take action under this section is
only the Court operating within the definition of Section
195(3) before which or in relation to whose proceeding the
offence has been committed. There is a word of caution
inbuilt in that provision itself that the action to be taken
should be expedient in the interest of justice. Therefore, it is
incumbent that the power given by this Section 340 of the
Code should be used with utmost care and after due
consideration”.
29. In the case of K.Karunakaran vs. T.V.Eachara
Warrier, reported in 1978 AIR 290 also it is held that, “at
an enquiry held by the court under Section 340(1) Cr.P.C.,
…..36/-
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37
irrespective of the result of the main case, the only question
is whether a prima facie case is made out which, if un-
rebutted, may have a reasonable likelihood to establish the
specified offence and whether it is also expedient in the
interest of justice to take such action”.
30. In the case of Pankaj Chaudhary (State of Delhi)
vs. Pankaj Chaudhary, reported in (2019) 11 SCC 575, the
Hon’ble Apex Court held that there are two preconditions
for initiating the proceeding under Section 340 of the CrPC;
(1). materials presented before the court must establish a
prima facie case for a complaint related to an offense under
Section 195(1)(b)(i) of the Cr.PC, and (2). It must be
deemed expedient in the interests of justice to conduct an
inquiry into the alleged offense. It has been observed that
the Court has to be satisfied as to the prima facie case for a
complaint for the purpose of inquiry into an offence under
Section 195(1)(b) Cr.P.C. The mere fact that a person has
made a contradictory statement in a judicial proceeding is
…..37/-
445 appw133.24.odt
38
not by itself always sufficient to justify a prosecution under
Sections 199 and 200 of the Indian Penal Code, 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) Cr.P.C., having regard to the overall
factual matrix as well as the probable consequences of such
a prosecution. Thus, the Court must be satisfied that such
an inquiry is required in the interests of justice and
appropriate in the facts of the case. 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
…..38/-
445 appw133.24.odt
39
committed. It is open to the Court to hold a preliminary
inquiry though it is not mandatory.
31. Thus, it is consistently held by the Hon’ble Apex
Court that the prosecution for perjury be sanctioned by the
courts only in those cases where perjury appears to be
deliberate and prosecution ought to be ordered where it
would be expedient in the interest of justice to punish
delinquent and not merely because there is some inaccuracy
in the statement. 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
…..39/-
445 appw133.24.odt
40
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. The approach should not be
mechanical and superficial. It is sufficient to justify
conclusion that it is expedient in the interests of justice to
file a complaint.
32. It is expedient in the interest of justice that “the
enquiry shall be made”. These words are key note to
Section 340. Under Section 340 of the Code, if it is
expedient in the interest of justice and not on mere
allegations, the course of initiating an enquiry under
Section 340 is adopted only if the interests of justice so
requires.
33. In law, “expedient” generally deals suitable or
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445 appw133.24.odt
41
appropriate for achieving a particular purpose, even if not
always morally or ethically ideal. It can also refer to
something i.e. advantageous or helpful in a specific
situation, particularly when dealing with an exigency.
Essentially, it is about what is practical and beneficial in the
moment rather than necessarily what is right or fair.
34. Advanced Law Lexicon defines “expedient” as
“act” and “suitable” to the end or “practical” and “efficient,”
“Polite”, “profitable,” “advisable” “fit,” “proper” and
“suitable” to the circumstances of the case. In another case,
it means a device “characterized” by merely rather than
principle, conducting to special advantage rather than to
what universally right.
35. The law lexicon defines the term “expedient” as
“necessary” means what is indispensable, needful, essential.
The term has a precise meaning and connotation and there
is nothing vague or nebulous about it. The term
…..41/-
445 appw133.24.odt
42
“expedient” has no doubt a wide ambit and gives large
scope to the exercise of power. But this expression has also
a recognized connotation in the eye of law. There is no
magic in recording the words that “Court find it expedient
in the interest of justice that inquiry should be made” but
from order of Court, it should appear that Court has formed
such opinion.
36. In the case of in Shri Narendra Kumar Srivastava
vs. State of Bihar and ors, reported in 2019 AIR (SC) 2675,
while dealing with this aspect, it is held that requirement of
formation of opinion of Court that it is expedient in the
interest of justice that an inquiry should be made, is with an
objective that prosecution should be ordered if it is in the
larger interest of administration of justice and not to gratify
feelings of personal revenge or vindictiveness or to serve
the ends of a private party. The Hon’ble Apex Court
referred its earlier judgment in Santokh Singh vs. Izhar
Hussain and anr, reported in (1973) 2 SCC 406, and
…..42/-
445 appw133.24.odt
43
observed that too frequent prosecutions for such offences
tend to defeat its very object. It is only in glaring cases of
deliberate falsehood where conviction is highly likely that
Court should direct prosecution.
37. Thus, the settled law on this aspect shows that
mere fact that a person has made a contradictory statement
in a judicial proceeding is not by itself always sufficient to
justify a prosecution for an offence under section 195 of the
IPC or 340 of the Cr.PC but it must be shown that the
defendant has intentionally given a false statement at any
stage of judicial proceeding or fabricated false evidence for
the purpose of losing the same at any stage of judicial
proceedings. Even after the above position has emerged,
still the court has to form an opinion that it is expedient in
the interests of justice to initiate an inquiry under Section
340(1) of the Cr.PC into the offences of false evidence and
offences against public justice, having regard to the overall
factual matrix as well as the probable consequences of such
…..43/-
445 appw133.24.odt
44
a prosecution. The court must be satisfied that such an
inquiry is required in the interests of justice and appropriate
in the facts of the case. 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, it is not mandatory that a complaint should be
filed as a matter of course.
38. The question is whether it was expedient in the
interest justice that an enquiry should be directed to be
…..44/-
445 appw133.24.odt
45
made as provided under Section 340 of the CrPC. In this
connection, it is pertinent to mention that Section provides
procedure in respect of offences enumerated under Section
195 (1) (d)(i) of the Code occur under Chapter XVI and
XXVI. Sections 340 and 195 are closely connected and
have to be read together. Section 195 starts with the words
‘no court shall take cognizance of any offence punishable
under Sections 172 to 188 of the IPC except with the
document in writing of the public servant concerned”.
Whereas, Section 195(1)(d) forbids cognizance by any
court and the offence against public servant except on
complaint in writing of that court. Section 340 enacted and
gives procedure for the same and provides as to the how
the complaint is to be filed. This Section deals with cases
mentioning Section 195(1)(d) and it has no concern with
the offences under Section 195(1)(a). Thus, Section 340
and 195 (1)(d) are supplemented to each other. Section
195(1)(a) as observed earlier is not concerned with the
courts. It deals with contempt of lawful authority of public
…..45/-
445 appw133.24.odt
46
servants and hence is not within the purview of Section 340
of the Code. In view of the procedure under Section 340,
the court may take action suo- motu or otherwise on an
application made by person if it is of the opinion that it is
expedient in the interest of justice to do so. In that case,
the court may complaint in writing or otherwise but the
powers of the court under Section 340 is confined with the
provisions whether the court is of the opinion that it was
expedient in the interest of justice to do so.
39. It is worth mentioning that the power under
Section 340 of the Code is not absolute one. The enquiry
can be made or the complaint can be directed to be filed
only when the court comes to conclusion that it was
expedient in the interest of justice to do so. There may be
case where false complaint might have been filed for
offence under Section 195 (1)(d) might appear to have
been committed, but unless it is expedient in the interest of
justice, the opinion of the court that enquiry should be
…..46/-
445 appw133.24.odt
47
made or complaint should be directed to be filed, the same
cannot be done.
40. Applying these rules of interpretation to
provisions of Section 340 of the CrPC, it is evident that the
intention of the legislature behind such a language that the
court’s discretion is circumscribed by words used. The
Court has to consider and weigh the balance of situation to
ascertain as to whether in a given case is it ‘expedient’ in
the interest of justice that an enquiry should be made. As an
inescapable corollary, in case it is not ‘expedient’, under the
circumstances, enquiry must not be made. Deliberate use of
word “expedient” by the legislature obviously connotes its
meaning as to suitable or advisable. The power of the Court
in directing an enquiry to be made or a complaint to be
filed in view of the provisions of Section 340 as limited with
a condition that it should appear to the Court to be
expedient in the interest of justice to do so. To put it
differently, it is only in glaring cases of deliberate falsehood
…..47/-
445 appw133.24.odt
48
when the Court can direct an enquiry to be made or
complaint to be filed but this discretion has to be exercised
judicially in the light of all the relevant circumstances.
Section 340 of the code is not with a view to satisfy
personal feelings of vindictiveness. The Court has to be
satisfied about the deliberate falsehood as a matter of
substance and there must be a reasonable foundation for
the charge and it must be expedient in the interest of
justice. The court has to exercise judicial discretion in the
light of all relevant circumstances when it determines
question of expediency.
41. In Iqbal Singh Marwah vs. Meenakshi Marwah
case, the constitution bench of the Hon’ble Apex Court has
gone into scope of Section 340 and in paragraph No.23
relevant considerations are noted and observed as follows:
“In view of the language used in Section 340
Cr.P.C. the Court is not bound to make a
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445 appw133.24.odt
49
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 interest 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(i)(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
…..49/-
445 appw133.24.odt
50
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.”
42. Thus, it has been consistently held by the
Hon’ble Apex Court that the prosecution for perjury be
sanctioned by the court only in those cases where perjury
appears to be dealt with and that prosecution ought to be
ordered where it would be expedient in the interest of
justice to punish delinquent and there is no inaccuracy in
the statement. Thus, before taking action under Section
…..50/-
445 appw133.24.odt
51
340 of the Cr.PC, the court is required to see as to whether
material produced before the court makes out prima facie
case for complaint for the purpose of enquiry into the
offence referred in clause (b) of sub section (1) of Section
195 of the CrPC and it is expedient in the interest of justice
that enquiry should be made into the alleged offence.
43. Thus, before directing the prosecution for
perjury for giving false evidence before the court, the court
has to come to conclusion the perjury appears to be
deliberate.
44. In Criminal Appeal No.1931/2011 (Ashok
Gulabrao Bondre vs. Vilas Madhukarrao Deshmukh)
decided on 12.4.2023, the Hon’ble Apex Court, while
dealing with the provisions under Section 195 of the CrPC
and under section 340(1) of the CrPC by referring its earlier
judgment in the case of of Sachida Nand Singh and anr vs.
State of Bihar and anr, reported in (1998)2 SCC 493,
…..51/-
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52
observed scope of the preliminary enquiry envisaged in
Section 340(1) of the Code is to ascertain whether any
offence affecting administration of justice has been
committed in respect of a document produced in court or
given in evidence in a proceeding in that Court. In other
words, the offence should have been committed during the
time when the document was in custodia legis. It would be
a strained thinking that any offence involving forgery of a
document if committed far outside the precincts of the
Court and long before its production in the Court, could
also be treated as one affecting administration of justice
merely because that document later reached the court
records.
45. Now, the only question requires for
consideration is that whether preliminary enquiry before
directing the prosecution for the alleged statements of the
accused is required.
…..52/-
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53
46. On going through the application, it reveals that
the application revolves around the pleading in the writ
petition that learned CJSD acted “deliberately”, “with
prejudiced mind”, “callously”, “acted by abusing authority
of the Judge”. The filing of application under Section 340
of CrPC and order passed on it is completely malafide”,
“acted according to his whim and fancies”, “not having
basic understanding of the law”, “acted arbitrarily and
unreasonably”, “he passed the order mechanically without
understanding the basic provisions of law” and the said
order was passed mechanically and superficially, the “Judge
made feeble attempt to justify his mechanical, unreasoned
and superficial order. According to the applicant, these
averments made by the petitioners in the writ petition are
false, scandalous, unfounded, scrupulous, reckless,
contemptuous, and grossly defamatory allegations against
the Judge. Admittedly, the accused are original petitioners
in the writ petition who have challenged the order passed
by learned CJSD, Nagpur. It is a matter of hearing in which
…..53/-
445 appw133.24.odt
54
context the petitioners have made these allegations against
the presiding officers.
47. To come to the conclusion that whether these
allegations are scandalous, contemptuous, or defamatory, it
is necessary to hear both the parties at length. At the
interim stage, only on the basis of the application, it would
not be appropriate to come to conclusion that pleadings of
the petitioners are scandalous, contemptuous, or
defamatory.
48. At this stage, in view the settled law, it is not
expedient in the interest of justice to direct the prosecution
of the accused for making such statements in the petition.
49. As observed earlier, basic requirement to apply
Section 340 is formation of an opinion by court that it is
expedient in the interest of justice that the enquiry should
be made for the offence which appears to have been
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445 appw133.24.odt
55
committed. It is also well settled that merely because some
statements are made or a person has made a contradictory
statement in judicial proceeding is not by itself always
sufficient to justify prosecution of the accused. It is to be
ascertained whether the accused intentionally made such
statement in judicial proceeding. Even after the above
position, the court has to form an opinion that it is
expedient in the interest of justice to initiate the enquiry
into offence of false statements and more specifically
referred to in Section 340(1) of the Cr.PC having regard to
the overall factual matrix as well as the probable
consequences of such prosecution. The court must be
satisfied that such an enquiry is required in the interest of
justice.
50. At this stage, the material placed on record is
not sufficient to come to conclusion and to form an opinion
that it is expedient in the interest of justice that enquiry
should be made into offence which appears to have been
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56
committed. However, this aspect can be considered while
disposing of the writ petition pending before this court.
51. In my view, at this stage, it is not expedient in
the interest of justice to hold an enquiry or to entertain the
question. At the most, this aspect can be considered at the
time of final disposal of the writ petition.
52. In view of the aforesaid discussion and in view
of the provisions under Sections 340 read with 195 of the
CrPC, I am of the view that at this stage, no enquiry is
required. This aspect can be kept open for the applicant
who are original respondent in the writ petition and while
disposing of the writ petition, this aspect can be dealt with.
At this stage, it cannot be said that there is a case disclosing
an offence under Section 195(1)(b) of the Code. It is
always discretionary depending upon the facts and
circumstances of the particular case. It is only dealt with
when it appears expedient in the interest of justice to direct
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57
the enquiry to be made or complaint to be filed. In that
event, enquiry can be ordered to be made or complaint can
be directed to be filed.
53. Keeping in view the entire facts and
circumstances of the present case, I am of the view that the
application is to be admitted along with the writ petition
by keeping open this aspect for the applicant to argue and
can be decided along with the writ petition.
54. In this view of matter, the application is
admitted to be decided along with the writ petition.
55. Interim relief, if any to continue, till next date.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …..57/-
Date: 16/08/2025 15:11:00