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 (1) The Code of Criminal Procedure, 1973 is hereby repealed.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