AMARSANG NATHAJI AS HIMSELF AND AS KARTA AND MANAGER versus HARDIK HARSHADBHAI PATEL AND OTHERS

Citation: [2016] 12 S.C.R. 80 · Decided: 23-11-2016 · Supreme Court of India · Bench: KURIAN JOSEPH · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2016] 12 S.C.R. 80 
A 
AMARSANG NATHAJI AS HIMSELF AND AS KARTA AND 
B 
MANAGER 
v. 
HARDIK HARSHADBHAI PATEL AND OTHERS 
(Civil Appeal No. 11120 of2016) 
NOVEMBER 23, 2016 
[KURIAN JOSEPH AND R.F. NARIMAN, JJ.] 
Code of Criminal Procedure, 1973 - ss.340, 195(1)(i){b) and 
C 
ss.238-243 & 343 - Legality of proceedings initiated by the High 
Court u/s.340 Cr.P.C. - Contradictory stand taken by the appellant 
in judicial proceedings - High Court took the view that the conduct 
of appellant has affected the administration of justice - Registrar 
of High Court was directed to file a complaint against the appellant 
uls.340 - Appellant pleaded that High Court has not followed the 
D _procedure uls.340(1) - Held: In the instant case, High Court has 
not followed all the requirements u/s.340 Cr.P.C. as settled by 
Supreme Court, regarding the formation of opinion on expediency 
to initiate an inquiry into any offence ulss. 193 to I96,199, 200 etc. 
of lP.C - After forming opinion, the court has to take decision as 
E 
to whether it is required, in the facts and circumstances of the case, 
to file the complaint - Only if the decision is in affirmative, the 
court needs to make a complaint in writing and the complaint thus 
made in writing is then to be sent to a Magistrate of competent 
iurisdiction -:- In the present situation, High Court has not followed 
the procedure in making the opinion that it was expedient in the 
F 
interest of justice to file a complaint against the appellant uls.340 
CnP. C. - Impugned order to the extent of initiation of the proceedings 
u/s.340 Cr.P.C. set aside - Penal Code, 1860 - ss. 193-I96, 199, 
200, 205-211, 228 - Perjury. 
G 
Allowing the appeal, the Court 
HELD: 1. There are two pre conditions for initiating 
proceedings under Section 340 CrPC - (i) mater;ials produced 
before the court must make out a prinwfacie case for a complaint 
for the purpose of inquiry into an offence referred to in clause 
(b)(i) of sub-Section (1) of Section 195 of the CrPC and (ii) it is 
H 
expedient in the interests of justice that an inquiry should be 
. 
80 
' 
AMARSANG NATHAJI AS HIMSELF AND AS KARTA AND 
81 
MANAGER v. HARDIK HARSHADBHAI PATEL 
made into the alleged offence. [Para 6] (86-B-C] 
2.1 On a reading of the impugned order, it is clear that the 
High Court has not followed all the requirements under Section 
340 of the CrPC as settled by this Court regarding the formation 
of the opinion on the expediency to initiate an inquiry into any 
offence punishable under Sections 193 to 196 (both inclusive), 
199, 200, 205 to 211 (both inclusive) and 228 of the IPC, when 
such an offence is alleged to have been committed in relation to 
any proceedings before the court. On forming such an opinion in 
respect of such an offence which appears to have been committed, 
the court has to take a further decision as to whether any com plaint 
should be made or not. [Para 10] [88-A-C] 
2.2 Such an opinion can be formed even without conducting 
a preliminary inquiry, if the formation of opinion is otherwise 
possible. And even after forming the opinion also, the court has 
to take a decision as to whether it is required, in the facts and 
circumstances of the case, to file the complaint. Only ifthe decision 
is in the affirmative, the court needs to make a complaint in writing 
and the complaint thus made in writing is then to be sent to a 
Magistrate of competent jurisdiction. 
[Para 11] (88-D] 
3. Under Section 343 CrPC, the Magistrate has to deal with 
the complaint referred to in Section 340 CrPC as ifit was instituted 
on a police report. Therefore, on the offences refen·ed to under 
Section 195(l)(b)(i) CrPC, all falling within the purview of warrant 
case, the Magistrate has to follow the procedure for trial of warrant 
cases under Chapter XIX Part A comprising of Sections 238 to 
243 of the CrPC. It is only in view of such seriousness of the 
matter, Section 340 CrPC bas provided for a meticulous procedure 
regarding initiation of the inquiry. (Para12] [88-E-F] 
4. The High Court in the impugned order bas not followed 
the procedure in making the opinion that it was expedient in the 
interests of justice to file a complaint against appellant in exercise 
of the powers conferred under Section 340 of the CrPC and 
directing the Registrar (Judicial) of the High Court of Gujarat, 
Ahmedabad "to make complaint against respondent no. I in view 
of the findings recorded by the court for the offence under 
Sect

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