LEAVE TO APPEAL – SECTION 378 (4) OF CRPC: 419 BNSS- MAINTAINABILITY

 

leave to appeal – Section 378 (4) of CrpC: 419 BNSS- MAINTAINABILITY

 

In criminal law as in civil cases there are tier available for appeals or revisions, depending on nature of disposal of case and whether the disposal relates to application or the case itself. Moreover, whether the disposal of the application ipso fact culminates the cause itself. However, presently, the issue being deliberated is leave to appeal in criminal cases. To put it in nutshell, leave to appeal is generally preferred, when the acquittal order is passed by the trial court or the first appellate court in criminal cases, as the case may be. The power to grant leave against the acquittal is available to the high court in terms of Section 378 (4) of Cr.P.C and the corresponding provisions is prescribed in section 419 (4) of Bharitiya Nagrik Suraksha Sanhita 2023 (BNSS). What is of pertinence in the context is that if the leave to appeal is sought without any tangible causes then such leave may not be granted.  As it is, dockets of the High Courts are filled with such leave to appeals and therefore, it is often felt that in a routine course the leave to appeal, if preferred should be discouraged and terms should be saddled for frivolous leave to appeals. That apart, the acquittal of an accused by court is not required to be set aside lightly and it is no res integra that if application for seeking leave to appeal does not prima facie establish that the order of acquittal is unreasonable or perverse, the leave , ought to be refused.

In the above backdrop, recently, the Delhi High Court has comprehensively dealt with the issues, in a matter captioned as State Vs MANPAL & ORS bearing no. CRL.L.P. 519/2019 (decided on 8^th October 2024).

It may be worthwhile to reiterate the provisions of Section 378(4) & (5) of Cr.PC as correspond to Section 419 (4) & (5) of BNSS 2023 as afore stated. The provisions are to as under for ready reference:

378(4):  If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court;

378( 5): No application under sub section (4) for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of the order of the acquittal.

It is not without reason, therefore that against the order of acquittal, the prosecution is required to obtain leave from the High Court for seeking permission to prefer appeal and as shall be delineated further, such leave shall be granted only when grounds of leave is available i.e the order of acquittal recorded by the trial court or the first appellate court as the case may be, is unreasonable to say the least.

Turning to State Vs MANPAL (supra) and Shorn of unnecessary details , in the above case, the FIR was lodged following information about a quarrel on Street and the victim/prosecutrix and her mother were taken to the police station where their respective statements were recorded. As a prelude to the quarrel as per above, the prosecutrix alleged attempt to rape by landlord’s Son and it was thus disclosed by her to sister and parents.

The charge was framed under Sections 341/323/354/376/511 of the IPC against Respondent No. 1 and separate charges under Sections 341/323/34 of the IPC were framed against Respondent Nos. 2 and 3, who are the mother and sister respectively, of Respondent No. 1.

The prosecution witnesses were examined before the Trial Court and the learned ASJ noted that the prosecutrix was examined-in-chief and cross-examined. In her examination-in-chief, she supported the case of the prosecution but in the cross-examination on the same day, she deposed that the dispute took place between her family and the family of the accused in regard to vacating the tenanted premises. On being asked by the learned Trial Court, she replied that false complaint was filed against the accused persons. It also transpired that the real dispute between the parties was with regard to the rent and the prosecutrix had stated that the accused/Respondent No.1 had not attempted to rape her.

The Mother of the prosecutrix had deposed that her daughter had told her on phone that the accused persons were beating her and had not allowed her to put the mattress on the roof to dry out in the sunlight. The Mother admitted that she had stated to the Police that her daughter had told her that while she was coming from the roof with mattress, the accused took her in a hut and tried to rape her. She volunteered that the said facts were told to the Police because the Police was not taking any action.

Significantly, the learned ASJ noted that the DD entry pursuant to a PCR call, only mentions that there was a quarrel and no allegation of attempt to rape was ever made.

 

As there existed material contradictions between the statements given to the Police at the initial stage and then subsequently to the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (CrPC), therefore, the learned ASJ took note of the affidavits filed by the prosecutrix and her Mother, wherein the deponents being the prosecutrix and her Mother had deposed that the dispute was in regard to the rent and a false complaint was filed. After perusal of evidence and considering that on the touchstone of law, the learned Trial Court was pleased to order acquittal of the respondents.

                                  LEAVE TO APPEAL

In the above factual matrix, the leave to appeal was filed.

It is also evident from record that the Additional Public Prosecutor for the State, in the proceedings before the District Court had initially opined that the case was not suitable for appeal to the High Court. It is also borne out from record that the Director of Prosecution also shared that view, however, it appears that the Department of Law & Legislative Affairs, later proposed filing an appeal. The High Court had thus expressed surprise on the reasoning behind the Department of Law & Legislative Affairs recommending an appeal in this case.

The Hon’ble Delhi High Court has held as under:

“12. It is trite law that this Court must exercise caution and should only interfere in an appeal against acquittal where there are substantial and compelling reasons to do so. At the stage of grant of leave to appeal, the High Court has to see whether a prima facie case is made out in favour of the appellant or if such arguable points have been raised which would merit interference. The Hon’ble Apex Court in the case of Maharashtra v. Sujay Mangesh Poyarekar: (2008) 9 SCC 475 held as under:

“19. Now, Section 378 of the Code provides for filing of appeal by the State in case of acquittal. Sub-section (3) declares that no appeal “shall be entertained except with the leave of the High Court”. It is, therefore, necessary for the State where it is aggrieved by an order of acquittal recorded by a Court of Session to file an application for leave to appeal as required by sub-section (3) of Section 378 of the Code. It is also true that an appeal can be registered and heard on merits by the High Court only after the High Court grants leave by allowing the application filed under subsection (3) of Section 378 of the Code.

 

20. In our opinion, however, in deciding the question whether requisite leave should or should not be granted, the High Court must apply its mind, consider whether a prima facie case has been made out or arguable points have been raised and not whether the order of acquittal would or would not be set aside.

 

21. It cannot be laid down as an abstract proposition of law of universal application that each and every petition seeking leave to prefer an appeal against an order of acquittal recorded by a trial court must be allowed by the appellate court and every appeal must be admitted and decided on merits. But it also cannot be overlooked that at that stage, the court would not enter into minute details of the prosecution evidence and refuse leave observing that the judgment of acquittal recorded by the trial court could not be said to be “perverse” and, hence, no leave should be granted.”

 

The Delhi High Court has thus held that in the present case prosecutrix evidence is not proved or corroborated by any independent witnesses.

The Delhi High Court has thus further held as under:

17. It is trite law that the accused can be convicted solely on the basis of evidence of the complainant / victim as long as same inspires confidence and corroboration is not necessary for the same. The law on this aspect was discussed in detail by the Hon’ble Apex Court by Nirmal Premkumar v. State, 2024 SCC OnLine SC 260. The relevant portion of the same is produced hereunder:

 

“11. Law is well settled that generally speaking, oral testimony may be classified into three categories, viz.: (i) wholly reliable; (ii) wholly unreliable; (iii) neither wholly reliable nor wholly unreliable. The first two category of cases may not pose serious difficulty for the Court in arriving at its conclusion(s). However, in the third category of cases, the Court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.

 

It is significant to point out that recording order of conviction for commission of an offence of rape, even on the solitary evidence of the prosecutrix is permissible, if that inspires confidence and appears to be absolutely trustworthy and unblemished.  However, in case of conspicuous lacunae, such evidence cannot be relied upon. If there are several and significant variations in material facts in the statements made u/s 161 and u/s 164, in F.I.R and in deposition before court, such a material contradictions cannot be overlooked.

 

The Delhi High Court in State Vs MANPAL & ORS (Supra) has therefore succinctly concluded as under:

“19. The filing of frivolous cases has a spiral effect on other litigations which are waiting for their turn to be heard before the Courts.

 

20. Although the present case clearly qualifies as one where costs should be imposed on the prosecution for filing a frivolous appeal, this Court has chosen to refrain from passing such an order with a direction to the Department of Law & Legislative Affairs to exercise greater vigilance and sensitivity in deciding which cases to prosecute. The misuse of the legal process through frivolous litigation wastes judicial time and resources, and the Department must ensure that only meritorious cases are brought before the Court, avoiding unnecessary burden on the judicial system.

 

21. The filing of frivolous cases has a far-reaching, detrimental impact on the legal system. It not only clogs the Courts with unnecessary litigation but also delays the hearing of genuine cases that are patiently awaiting their turn to be addressed. Such delays undermine the efficiency of the judiciary, causing distress to litigants. Therefore, it is imperative that the prosecution and legal departments exercise due diligence before initiating cases, in order to preserve the integrity of the judicial process and ensure timely justice for those with legitimate grievances.”

 

From the above standpoint as deliberated in this context extensively what may be culled out is that the provision for a leave to appeal is provided for in the statute book only with a view to enable the prosecution to bring out the tangible flaws in the order recording acquittal and therefore it cannot be contemplated that in a routine matter the leave should be granted against the order of acquittal. Once, order of acquittal is recorded after appreciation of evidence, the liberty of individual cannot be dealt with if appeal is filed in a mechanical manner without exploring and ascertaining the flaws in the order of acquittal. The provisions for leave to appeal is meant to enable prosecution to seek substantive justice, in case glaring lapses are evident in the order of acquittal, else, filling the dockets of courts in a mechanical manner needed deprecation and the Delhi High Court has done just that in the present case.

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    Anil K Khaware

    Founder & Senior Associate

    Societylawandjustice.com

 

SECTION 340 Cr.P.C: SECTION 379 BNSS: PARAMETER REDEFINED

 

Section 340 Cr.P.C: SECTION 379 BNSS:  Parameter redefined

 

The Section 340 of the Code of Criminal Procedure ( Correspond to Section 379 of Bhartiyaa Nagrik Suraksha Sanhita (i.e BNSS) has been a very significant enactment, but used sparingly, as if it is a dead letter, though, courts has periodically dealt with the issue with all severity and parameters thereof are defined and redefined.

However, analysis of the section in intricate detail, what may follow is that, where the forged document is presented as evidence during the Court’s proceedings, the application under Section 340 Cr.PC is deemed wholly appropriate. It is so, because, an action is justified on the grounds that forgery shall then be akin to an act interfering with the judicial process itself, thus, mandating the Court’s intervention under the said provision. This is in sync with the principle of custodia legis, ensuring that any document submitted into the Court's custody remains protected under the law. The Supreme Court has revisited the aspect in a matter captioned as Ashok Gulabrao Bondre v. Vilas Madhukarrao Deshmukh and Ors. (2023 INSC 724).

Earlier, a Supreme Court judgment  reported as Iqbal Singh Marwah v. Meenakshi Marwah, [(2005) 4 SCC 370] distinguishes between fabrication committed prior to the filing of legal proceedings and forgery and fabrication as  occurring during the course of legal proceedings, once a person or an entity becomes a party before the Court.

 

Significantly, the Supreme Court in Bandekar Brothers Private Limited v. Prasad Vassudev Keni and Others [2020] 10 S.C.R. 1075 has justified initiating action under Section 340 Cr.P.C against the offence. It is held that the application of Section 195 (1) (b) Cr.P.C read with Section 340 Cr.P.C concerning allegations of forgery and fabrication has differentiated earlier judgment reported as Bandekar Brothers (supra) with Iqbal Singh Marwah (supra) regarding the scenario where a document, initially forged, has a direct connection/nexus to the suit in question.

Another judgment of the Supreme Court worthy of reference in Narendra Kumar Srivastava v. State of Bihar [(2019) 3 SCC 318]. It is no res integra that if any proceedings remained pending under Cr.P.C, the same could be continued under that. The Section 531 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter, ‘BNSS’) makes it clear as well, which reads as under:

“531. (1) The Code of Criminal Procedure, 1973 is hereby repealed.

(2) Notwithstanding such repeal—

(a) if, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, as in force immediately before such commencement (hereinafter referred to as the said Code), as if this Sanhita had not come into force;

(b) all notifications published, proclamations issued, powers conferred, forms provided by rules, local jurisdictions defined, sentences passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the said Code and which are in force immediately before the commencement of this Sanhita, shall be deemed, respectively, to have been published, issued, conferred, specified, defined, passed or made under the corresponding provisions of this Sanhita;

(c) any sanction accorded or consent given under the said Code in pursuance of which no proceeding was commenced under that Code, shall be deemed to have been accorded or given under the corresponding provisions of this Sanhita and proceedings may be commenced under this Sanhita in pursuance of such sanction or consent.

(3) Where the period specified for an application or other proceeding under the said Code had expired on or before the commencement of this Sanhita, nothing in this Sanhita shall be construed as enabling any such application to be made or proceeding to be commenced under this Sanhita by reason only of the fact that a longer period therefor is specified by this Sanhita or provisions are made in this Sanhita for the extension of time. Accordingly, the earlier Codes i.e., CrPC and IPC would be the applicable codes/statutes in the present case.

 

(4) For the purposes of clause (b) of sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the 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.

 

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

(a) record a finding to that effect;

(b) make a complaint thereof in writing;

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

(d) take sufficient security for the appearance 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 custody to such Magistrate; and

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

(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195. (3) A complaint made under this section shall be signed,—

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

(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.

 

Section 340 CrPC clearly stipulates that if the Court is of the opinion that an inquiry ought to be made into any offence referred to in Section 195(1)(b) Cr.PC committed either:

a) in relation to a proceeding in that Court or

b) in respect of a document produced in that Court or

c) in respect of a document given in evidence in a proceeding in that Court;

In such an event, the Court may record a finding to that effect and direct a complaint to be registered. Under Section 195(1)(b) Cr.PC, a Criminal Court cannot directly take cognizance of any offence which is alleged to have been committed in relation to a proceeding in any Court, unless there is a complaint in writing by the Court itself, or an officer of the Court authorized by it.

 

In a matter captioned as M/S KG MARKETING INDIA Vs MS. RASHI SANTOSH SONI & ANR bearing no. CS(COMM) 18/2023, The Delhi high court had the occasion to have a complete relook on the provision. It was noted that the application was pending when the new statutes Bharatiya Nyaya Sanhita, 2023 ( ‘BNS’) and Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’) were enacted. The matter was however continued under the erstwhile Code i.e Cr.P.C itself. This is in view of the clear mandate of Section 531 of the `Bhartiya Nagrik Sakshya Sanhita’ as illustrated above.

Accordingly, the earlier Codes i.e., Cr.PC and IPC were to be applicable in KG MARKETING INDIA (Supra).  It may also be relevant in the context to reproduce section 195 of Cr.P.C. The same is 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) (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, or 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 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), 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.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authorityto 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 sub-section (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 sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the 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.

(4) In this section, “Court” has the same meaning as in section 195” IPC.

 

In this context Section 191 & 192 of Indian Penal Code, besides some other relevant provisions may also be reproduced for ready perusal:

 

191. Giving false evidence. —

Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.

Explanation 1. — A statement is within the meaning of this section, whether it is made verbally or otherwise.

Explanation 2. — A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.

192. Fabricating false evidence.—

Whoever causes any circumstance to exist or makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding is said “to fabricate false evidence”.

 

“196. Using evidence known to be false.—

Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated, shall be punished in the same manner as if he gave or fabricated false evidence.

 

463. Forgery. — Whoever makes any false document or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.

464. Making a false document.—A person is said to make a false document or false electronic record—

First.—Who dishonestly or fraudulently—

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any electronic signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or

 

Secondly.—Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or

 

Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.

Explanation 1. —A man’s signature of his own name may amount to forgery.

Explanation 2. —The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.

Explanation 3.—For the purposes of this section, the expression “affixing electronic signature” shall have the meaning assigned to it in clause (d) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).”

 

The Supreme Court in Ashok Gulabrao Bondre v. Vilas Madhukarrao Deshmukh, [2023] 3 S.C.R. 820  had occasion to considere Iqbal Singh Marwah (supra) and observed that a private complaint would be entertainable. It was held:

 

“20. It could thus clearly be seen that this Court, on unequal terms, has held that the view taken in the case of Sachida Nand Singh (supra) that Section 195(1)(b)(ii) of the Cr.P.C. would be attracted only when the offence enumerated in the said provision was committed in respect of a document after it has been produced or filed in evidence during proceedings before any Court, i.e. during the time when the document is custodia legis. The Court has clearly held that, insofar as the Will which is alleged to have been fabricated before it was produced in the Court, the embargo created by Section 195(1)(b)(ii) of Cr.P.C. would not come into play”.

In Bandekar Brothers (supra), the Supreme Court considered the decisions in Kailash Mangal v. Ramesh Chand [(2015) 15SCC 729] and Narendra Kumar Srivastava v. State of Bihar [(2019) 3 SCC 318] and observed as follows:-

 

“29. Thus, Iqbal Singh Marwah (supra) is clear authority for the proposition that in cases which fall under Section 195(1)(b)(ii) of the CrPC, the document that is said to have been forged should be custodia legis after which the forgery takes place. That this judgment has been followed in several subsequent judgments is beyond cavil – see Mahesh Chand Sharma v. State of U.P and Ors.(2009) 15 SCC 519 (at paragraphs 21-23); C.P. Subhash v. Inspector of Police, Chennai and Ors. (2013) 11 SCC 559 (at paragraphs 12 and 13); Kishorbhai Gandubhai Pethani v. State of Gujarat and Anr. (2014) 13 SCC 539 (at paragraphs 14 and 15) and Vishnu Chandru Gaonkar v. N.M. Dessai (2018) 5 SCC 422 (at paragraphs 14 and 17).

 

The Delhi High Court has thus held in KG Marketing India (Supra), after taking note of judicial precedents:

 

“46. The forgery and fabrication of the documents were admitted during the Court proceedings by xxxxxx, who initially filed a false affidavit and thereafter resiled from the same. Moreover, such reliance on a forged and fabricated document cannot go unpunished, in the opinion of this Court. The purpose of the provision Section 340 CrPC. would be undermined if the fabrication of a newspaper is permitted to go unpunished without even an investigation. Persons who indulge in forgery and fabrication, especially, in respect of documentary evidence which relied upon heavily that too in order to obtain an ex-parte injunction cannot be allowed to go scot-free”.

 

The provisions of Section 340 of Cr.P.C analogous to Section 379 of BNSS shall therefore be attracted in case of tendering of wrong affidavit and evidence in the course of judicial proceedings and though, the provisions are sparingly used, still, the vigour and sheen of the provisions cannot be taken away. In an apt case, the applicability of provisions is inbuilt. As regards applicability of Section 340 of erstwhile Cr.P.C, the consensus appears to be around the fact, that the cases instituted and cause of action if related to prior to 1^st July 2024, the erstwhile Code i.e Indian Penal Code and Code of Criminal Procedure shall only be applicable and only if the entire cause of action have arisen after 1^st July 2024, the cases shall be instituted under BNSS. There has been some judgments  to the contrary, though, but, vast majority of judgments are in favour of continuance of Cr.P.C or IPC in respect of causes existing prior to the date of notification of BNSS.

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                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com