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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MRIDULA BHATKAR, J.
Union of India & Ors. - Petitioners
Versus
Haresh Virumal Milani - Respondent
WRIT PETITION (ST.) NO. 4899 OF 2017
Decided On : 17-04-2017
If the offence covered under Section 195 of Code of Criminal Procedure is committed then either criminal, civil, tribunal or revenue Court can initiate action under Section 340 of Code of Criminal Procedure. Thus, Section 195 does not restrict to only the Criminal Courts but Legislature has intended wider meaning by using word "Court".
Thus, the Civil Court while conducting the preliminary inquiry or conducting other proceedings under Code of Criminal Procedure, enjoys similar powers of the Criminal Court under Code of Criminal Procedure for the purpose of the said inquiry or proceedings under Section 340 of Code of Criminal Procedure.
Criminal Procedure Code, 1973 - Section 311-Nature of provision. - Section 311 of Cr PC is helpful in nature not only in trial but also even in any inquiry or any other proceedings under Cr PC to get true facts on record.
The best source for forming opinion is verification of facts and for the purpose of verification, the true and correct facts should be placed before the Judge. In the process of forming opinion in the inquiry the procedural power to call the witness, to bring the documents revealing the true facts, vests with him. Thus Section 311 of Code of Criminal Procedure is helpful not only in the trial but also even in any inquiry or any other proceedings under the Code to get true facts on record. Before registering the complaint by the Magistrate under Section 340 of Code of Criminal procedure hearing the person against whom prosecution is likely to be instituted is not contemplated. A respondent who will face inquiry has every right to know and is to be heard in the proceeding once the complaint is registered and the proceedings are conducted under Section 340 of Code of Criminal Procedure, but not at the stage of making of mind by the Judge whether to refer the matter for registering the complaint to the Magistrate under Section 340 of Code of Criminal Procedure.
Criminal Procedure Code, 1973 - Sections 311 and 341-Powers of Court.-Civil Court while conducting inquiry under Section 340 of Cr PC, enjoys similar powers of Criminal Court under Cr PC and can exercise power under Section 311, Cr PC.
The Civil Court conducting the inquiry under Section 340 of Code of Criminal Procedure has power to call witness and can exercise the power under Section 311 of Code of Criminal Procedure. No interference is required in the order/orders under challenge. Thus, writ petition is hereby dismissed.
Criminal Procedure Code, 1973 - Section 340-Complaint under by Court.-Before registering complaint by any Court under Section 340 of Cr PC, hearing person against whom prosecution is likely to be initiated is not necessary.
Before registering the complaint by the Magistrate under Section 340 of Code of Criminal Procedure hearing the person against whom prosecution is likely to be instituted is not contemplated. A respondent who will face inquiry has every right to know and is to be heard in the proceeding once the complaint is registered and the proceedings are conducted under Section 340 of Code of Criminal Procedure, but not at the stage of making of mind by the Judge whether to refer the matter for registering the complaint to the Magistrate under Section 340 of Code of Criminal Procedure.
It is entirely upto the Court to decide whether to initiate the proceedings under Section 340 of Code of Criminal Procedure. Thus the proceedings of the application under Section 340 of Code of Criminal Procedure are Kangaroo Baby proceedings within the civil trial and still it is of an independent character and therefore, for the purpose of the said inquiry the powers under Code of Criminal Procedure can be enjoyed by Civil Court. AIR 2002 SC 236-Referred.
Rule. Rule made returnable forthwith. By consent, the Petition is heard finally and disposed of at the stage of admission.
2. In this petition under Article 227 of the Constitution of India the orders dated 11.01.2017 and 16.02.2017 passed by the learned 3rd Jt. Civil Judge, Senior Division, Pune in Misc. Application No. 946 of 2012 in Regular Civil Suit No. 881 of 2011 are challenged.
3. The original plaintiff i.e. the respondent has filed the Suit for simplicitor injunction against the defendants i.e. the petitioners from obstructing his possession on the suit land or from dispossessing him and also to restrain the defendants from destroying any documents in their possession relating to the suit land. During the pendency of the trial, the application was filed by the plaintiff that the defendants i.e. the petitioners have made a false statement on oath in their written statement that the suit property i.e. land is owned by the defendants and they have acquired the suit land under Acquisition Act in February 1970. The plaintiff has pleaded that on account of false statement made on oath in the written statement, the defendants have committed offence and therefore, cognizance is required to be taken. The defendants have committed offence which is covered under section 195 of Code of Criminal Procedure and therefore, he prayed that the inquiry be conducted and the notice be issued to the defendants under section 340 of Code of Criminal Procedure. Interalia in the Civil Suit, the original plaintiff i.e. the respondent has filed the application below Exhibit 32A under section 340 of Code of Criminal Procedure. It is a separate independent inquiry within the suit and therefore, it is numbered as Misc. Case No. 946 of 2012 in Regular Civil Suit No. 881 of 2011. In the said Misc. case, another application dated 04.10.2016 below Exhibit 43 under section 30 of Code of Civil Procedure and Order XI Rule 12 of Code of Civil Procedure was filed by the original plaintiff i.e. the respondent seeking directions that the Collector to produce the documents in respect of acquisition proceeding of the suit property. The learned trial Judge, vide order dated 11.01.2017 has allowed the said application dated 04.10.2016 holding the application not under Order XI of Code of Civil Procedure but an application made under section 311 of Code of Criminal Procedure and issued summons to the Collector, Pune with directions to submit the certified copies of the revenue record, mutation entries and acquisition proceedings in respect of the suit land i.e. survey no. 233A of Village Lohogaon, Pune. The said order is a subject matter of the challenge.
4. Thereafter, the petitioners had filed an application for recalling or reviewing the order dated 11.01.2017 passed by the learned 3rd Joint Civil Judge, Senior Division, Pune in M.A. No. 946 of 2012 on the ground that at the time of allowing the application for summons to the Collector, it was necessary for the trial Court to give audience to the opponent i.e. accused against whom the inquiry is conducted. The said application was also turned down by the learned Judge, vide order dated 16.02.2017 is also challenged before this Court.
5. The learned counsel for the petitioner has submitted that the orders dated 11.01.2017 and 16.02.2017 passed by the learned Judge are illegal and not tenable in law. He has further submitted that the order dated 11.01.2017 is grossly erroneous, as the Civil Court has no right to use the powers under Code of Criminal Procedure much less under section 311 of Code of Criminal Procedure to call or recall a witness. The learned counsel has made three submissions which are as under:
(1) Sections quoted by the plaintiff while moving application below Exhibit 43 is wrong. The order dated 11.01.2017 passed by the learned Judge under section 30 of CPC and Order XI Rule 12 of CPC are incorrect.
(2) The said application filed under Order X Rule 12 of Code of Civil Procedure should not ha
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