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

 

ORDER 22 RULE 6 OF CPC: PRINCIPLES & EFFECT

 

Order 22 Rule 6 of CPC: Principles & effect

The Order 22 Rule 6 of Civil Procedure refers to an interesting situation and the courts some time have to deal with such a situation i.e when a party to the lis dies, during the court proceedings, but after advancing arguments, but before the order pronounced.  What will be the situation as per law, taken together with the principles as contained therein in Order 22 Rule 6 of Code of Civil Procedure. The issue, no doubt, is vexed and there are conflicting judgments in this regard. The effort is made herein to come to a reasonable conclusion, after analyzing the principles as also law laid down in this regard.

There is no doubt to a situation rather, it is an established fact that, a suit or an appeal does not abate till the time granted for bringing on record the legal representatives expires. Thus, in effect, even after the death of a party the suit or appeal continued to survives, till such time, the time provided under law for bringing on record the legal representatives does not expires. However, a moot question in this regard shall be as to whether suit or an appeal survives after the death of a parry. The obvious question will be, whether the parties were represented at the time of arguments or hearing of the case. what, if a party dies before the matter is finally heard and argued before the Court. Can an Advocate appear for a dead party?  Shall it not be akin to a situation that the Advocate is then representing nobody. Thus, by fiction of law, the suit or appeal may be surviving even after the death of the party for a particular period of time, but shall not the authority of the advocate ceases immediately after the death of a party?

Before going further, it may be apt to reproduce the principles as contained in Order 22 Rule 6 of Code of Civil procedure:

Order-22 Rule-6.

No abatement by reason of death after hearing :--

“Notwithstanding anything contained in the foregoing rules, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the conclusion of the hearing and the pronouncing of the judgment, but judgment may in such case be pronounced notwithstanding the death and shall have the same force and effect as if it had been pronounced before the death took place."

 

The Division Bench of Andhra Pradesh High Court in the year 2001 in a matter captioned as Golla Krishna Murthy vs Golla Yellaiah (Dead) By LRs 2001(5) ALD 484  has held as under:

4. …….It is also not true that the appellate Court is mainly confined to the examination of correctness of the judgment of the lower Court by reference to the law applicable and material already gathered. The fact of the matter is that the parties have a right to be heard and if parties are not represented by reason of death of a party at the hearing, the decree, in our view, becomes a nullity. We are fortified in our view by a Division Bench judgment of Kerala High Court in Easwara Iyer v. Vella Muthan, 1998 (4) SCC 607 (ker). In this judgment (supra) 'Hearing' as occurring in Order 22, Rule 6 was interpreted and it was held that, hearing does not mean hearing of arguments only, it refers to all the stages of the trial of a suit. In our view, the hearing includes all that is done by the Court before reserving the case of judgment. While interpreting Rule 6 of Order 22 CPC, we are of the view that, hearing would be complete when nothing more is to be done by the Judge except writing the judgment’.

In this regard reference could be made to a matter captioned as N.P Thirugananam Vs R Jagan Mohan Rao 1995 SCC (5) 115, when The Supreme Court had occasion to deal with a similar situation. A party in that case had died after the arguments had been heard and judgment had been reserved.  The Supreme Court had, while interpreting Order 22 Rule 6 of CPC,  thus held as under:

The Supreme Court while interpreting Rule 6 of Order 22 CPC has held as under:

"In the face of the explicit language in Rule 6 of Order 22, there can be no abatement by reason of the death of any party between the conclusion of the hearing and the pronouncement of the judgment. It may be pronounced, notwithstanding the death, and shall have the same force and effect as if judgment had been pronounced before the death took place. Therefore, the contention that the judgment and decree of the appellate Court is a nullity is devoid of substance."

The Division Bench of Andhra Pradesh High Court in Golla Krishna Murthy (Supra) after relying upon the above judgment of Supreme Court has therefore held that if the party had died, before the conclusion of the hearing the judgment rendered would be a nullity.

                                  KERALA HIGH COURT

The earlier precedents of Kerala High Court shall be worthy of reference in this context.

(i)          The Kerala High Court In C Abdulla Damodaran Namoddodiri 1972 Ker LT 53 : (AIR 1972 Ker 116), this Court held as follows :--

"We shall mention only one decision, namely, Bhagwat Prasad Vs Beni Mahton AIR 1958 Pat 278, where a learned Judge of the Patna High Court has follows the decision of the Calcutta High Court mentioned above, In this connection, the decision of our Court by Vaidialingam J. in Meenakshy Pillaythiri Amma Vs lakshmi Amma 1967 Ker LT 777 : (AIR 1967 Kerala 135) has also been brought to our notice. The learned Judge has considered several decisions and has held that in such a case (the facts in that case were not exactly similar, the Court has inherent power under Section 151 of the Code of Civil Procedure read with Order 22 thereof to implead the legal representatives so as to do justice between the parties in the case before us the action of the Munsif in placing the case before the Subordinate Judge with a report can also be justified under Section 151.."

(ii)        In Assyamma v. Aisabi, 1976 Ker LT 101 the Kerala High  Court has held thus :-

"On the death of the 2nd respondent, the appeal had abated and the decree passed by the first appellate Court in ignorance of this fact in the eye of the law is a nullity. Strictly speaking there was no decree to be appealed against. The proper course in the circumstances to be adopted is to set aside the ineffective decree of the first appellate Court. giving the appellant herein an opportunity to take such steps as are necessary to have the abatement set aside, if she is entitled to do so, and to have the matter proceeded with after bringing on record the legal representative of the deceased second respondent."

(iii)       The Kerala High Court in a matter reported as  Paru v. Devaki Varassiar, 1992 (2) Ker LT 687, it was held as follows :

"Here in this case the fact that the appellant died prior to the passing of the decree by the lower Appellate Court has become obvious. The legal representatives are attempting to file this Second Appeal. All that the Court can do is to indicate to the legal representatives that their proper remedy lies in moving the Lower Appellate Court with the necessary application form getting themselves impleaded and for getting a proper re-adjudication of the appeal. No principle of law enables or entitled the legal representatives straightway file a Second Appeal before this Court on an assertion that the decree of the lower Appellate Court passed against their predecessor-in-interest who was the sole appellant therein was a nullity. Even if the decision in the appeal was a nullity it could not set at naught the decree of the trial Court which was one against the predecessor-in-interest of the appellants in this Second Appeal."

(iv)    The Kerala High Court thus in Uma Andarjanam And Ors. vs Neelakandan Namboodiri & Ors AIR 2001 KERALA 314 after taking note of the above judicial precedents of Kerala High Court, has held as under:

5. In view of the above proposition of law. I have no hesitation to hold that the decree passed by the lower appellate Court becomes a nullity. When that be so, there is no necessarily to go into the judgment of the lower appellate Court and the appeal has to be dismissed and accordingly it is dismissed. No doubt, as per the principle laid down by this Court in the three decisions extracted above, the parties can move the lower appellate Court in bringing the legal representatives of the deceased-first respondent, who was the appellant in the lower appellate Court in accordance with law. And the lower appellate Court, when the legal representatives are brought on record in accordance with law, can further proceed and dispose of the appeal expeditiously”.

The aforesaid discussion emanating from the judicial precedents of Supreme Court, Division bench of Andhra Pradesh High Court as also, from the several judgments rendered by Kerala High Court, while interpreting the principles of Order 22 Rule 6 of Code of Civil Procedure the clear proposition in law is laid down to the effect that the once arguments are heard and judgment was reserved, but before pronouncement of judgment a party to the lis has died, the judgment in a suit or in appeal could be pronounced. However, if the arguments remained inconclusive, though trial concludes and at that stage, if a party to the lis dies, then, the judgment cannot be pronounced, since at that stage , a party shall remain unrepresented and no arguments could be advanced on behalf of a dead party. The suit or appeal shall therefore not abate by reason of death, unless within the stipulated period or as ordered by the Courts, the LRs of the deceased comes on record and the case shall move forward thereafter.

                                           ------

                                  Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com