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2013 Supreme(Del) 573
High Court of Delhi
SANJAY KISHAN KAUL, RAJIV SHAKDHER & SURESH KAIT, JJ.
Weizmann Ltd.
Versus
Ms. Shoes East Ltd. & Others
FAO(OS) No. 364 of 2011
Decided On : 16-05-2013
For the Appellant:M.L. Sharma, Ms. Suman, Advocates.
For the Respondents:Dr. Arun Mohan, Amicus Curiae (Sr. Advocate) with Arvind Bhatt, Pavan Sachdeva, A.S. Chandhiok, ASG with Ritesh Kumar, Sidharth Tyagi, Ms. Shweta Gupta, Ms. Honey Kumari, Ms. Mallika Ahluwalia, Prabhjeet Singh, Advocates.
Headnote:
Delhi High Court Act, 1966 - Section 10 r/w Section 5, 195, 340 and 341 of Criminal Procedure Code, 1973 - Letters Patent Appeal - Criminal jurisdiction - Exclusion of High Court from Section 341 of the New Code, does not take away the right of an aggrieved party to file an appeal under any other statute or enactment as the same is saved by virtue of Section 5 - An appeal would lie from a judgment of the Single Judge to the Division Bench, except that which is passed in revisional jurisdiction, in exercise of power of superintendence, or in criminal jurisdiction - Expression "other than the High Court", appearing in Section 341 of the New Code would not disable an aggrieved party to prefer an appeal, if it is otherwise maintainable, under other statutes and provisions in law - Decision taken on an application under Section 340 of the New Code, involves only a formation of an opinion as to whether or not a complaint should be filed - At the stage of formation of such an opinion, the court does not exercise criminal jurisdiction - An appeal under Letters Patent would be available to the aggrieved party - Reference answered accordingly.
Key Points: - The expression "other than the High Court" in Section 341 of the New Code does not disable an appeal under other statutes if maintainable; saving clauses allow appeals under Letters Patent or other laws (!) (!) (!) (!) . - A decision under Section 340 (formation of opinion to initiate a complaint) is not a judgment of criminal guilt but a pre-trial decision; an appeal lies under Letters Patent from a Single Judge’s order to Division Bench in certain circumstances (formation of opinion not exercising criminal jurisdiction) (!) (!) (!) (!) . - The two-stage process: first the court forms an opinion about whether to initiate inquiry (not a trial); second, if proceeding, magistrate conducts pre-trial inquiry under CPC/NW Code; appropriate appellate route depends on stage and nature (!) (!) (!) . - The judgment references various precedents across jurisdictions (MS Sheriff, Narain Das, Pritish v State of Maharashtra) supporting the interpretation of Section 340 and appeals (!) (!) (!) .
How to determine the maintainability of an appeal under Clause 10 of the Letters Patent when Section 341 of the New Code excludes the High Court from that Code?
What is the nature of the decision taken on an application under Section 340 of the CrPC: is it a decision in exercise of criminal jurisdiction or a civil/criminal procedure matter at different stages?
What is the correct appellate forum for challenges to an order under Section 340/Section 341 CrPC when the original proceedings involve civil, arbitration, or other special statutes?
Rajiv Shakdher, J.
1. This appeal has been referred to a Larger Bench in view of the judgment rendered by a Division bench of this court in the case of Ramesh Jaiswal vs. Semjeet Singh Brar & Ors. 2012 (131) DRJ 479; wherein the view taken is that, an appeal under clause 10 of the Letters Patent is not available to an aggrieved party to assail an order passed on an application filed under Section 340 of the Code of Criminal Procedure, 1973 (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.
(4) In this section," Court" has the same meaning as in section 195.) (hereinafter referred to as the New Code) as it is an order passed in exercise of criminal jurisdiction. There can be no doubt that if it is so then, on a plain reading of clause 10 read with clause 18 of the Letters Patent no appeal shall lie to the Division Bench. The question therefore is: does a court while taking a decision on application under section 340 of the New Code, exercise criminal jurisdiction.
2. It is pertinent to note that, prior to the constitution of a Larger Bench, the Division Bench was called upon to examine the maintainability of the appeal. The Division Bench at the relevant point of time comprised of Sanjay Kishan Kaul, J and myself.
2.1 The instant appeal though is preferred under Section 10 of the Delhi High Court Act, 1966 (10. Powers of Judge—(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-Section (2) of Section 5 on that Court, an appeal shall lie from the judgment of the single Judge to a Division Court of that High Court.
(2) Subject to the provisions of sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.) (in short the 1966 Act) against an order dated 26.05.2011, passed by a Single Judge of this court. The Single Judge vide order dated 26.05.2011, dismissed the appellant‘s application under Section 340 of the New Code. This application was filed by the appellant in CS (OS) 1299/1997.
2.2 The said suit, in substance, was a petition under Section 20 of the Arbitration Act, 1940 (in short 1940 Act), seeking reference of disput
