IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Reserve: July 29, 2010

Date of Order: 12th August, 2010
Crl. Rev. P. No. 120 of 2010

Mohan Lal Jatia vs Registrar General, Supreme Court on 12 August, 2010

[Link], Adv. For the appellant.

Mr. Vikas Pahwa, Standing Counsel for CBI with Mr. Tarun Verma, Advocate.

JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?

Yes.
2. To be referred to the reporter or not?
Yes.
3. Whether judgment should be reported in Digest?
Yes.

Law Point:

Complaint Under Section 340 Cr.P.C. is to be Treated as Police Report, is

that of Warrant Trial Case on Police Report and not of Warrant Trial Case
on Complaint Petition

JUDGEMENT

1. By the present petition, the petitioner has assailed the order of learned Chief
Metropolitan Magistrate (CMM) dated 11th December, 2009, whereby an
application of the petitioner for adopting a procedure of warrant trial as
applicable to a complaint case and for recording pre- charge evidence was
dismissed.

2. Brief facts relevant for the purpose of deciding this petition are that in an
SLP pending before Supreme Court, being SLP No. 1330 of 1986, challenging a
detention order, an affidavit was filed by accused Ashok Jain that a
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representation had been made in the Secretariat of President of India on 15th
April, 1986, and this representation had not been disposed of by the Central
Government. This plea, taken by the petitioner before the Supreme Court, was
contested by Union of India (UOI) and it was stated that no such representation
was filed before the President of India and a false affidavit was sworned before
the Supreme Court. The Secretariat of President of India filed an affidavit
informing the Court about the procedure by which dak was received and
handled at Rastrapati Bhawan. Register from the office of Rastrapati Bhawan
was produced before the Supreme Court. UOI made an application
under Section 340 of Code of Criminal Procedure (Cr. P.C.) before the Supreme
Court for prosecuting the persons responsible for filing false affidavit through Mr.
Ajay Jain before the Supreme Court. It was also informed that UOI has referred
the matter to Central Bureau of Investigation (CBI) for investigation. The
Supreme Court, vide its order dated 12th September, 1986, directed CBI to
proceed with the inquiry and directed that the result of inquiry be communicated
to UOI. On 29th April, 1987, Writ Petition and SLP came up for hearing before
the Supreme Court and the Supreme Court dismissed the SLP and Writ Petition
challenging the order of detention and observed that the detenu and his other
associates had gone to deplorable lengths to create evidence favouring the
detenu which aroused convulsion thoughts in the minds of Supreme Court about
the efficiency and integrity of the concerned sections of President’s Secretariat.
It further observed that it was a fit case where detenu, his wife, Ashok Jain and
other persons responsible for fabrication of false evidence should be prosecuted
for the offences committed by them. The Supreme Court deferred the passing of
final order on application of UOI under Section 340 Cr. P.C. awaiting CBI
report. Directions were issued for complete investigation to be taken up by CBI
and the Supreme Court directed its Registrar (Judicial) to keep relevant records
in safe custody in a sealed envelope till such time they are called for and when
the application under Section 340 Cr. P.C. was taken up for final orders.
Director of CBI was directed to get the investigation done and submit report to
Ministry of Home Affairs, Government of India. Subsequent to this, CBI
registered a case vide RC No. 2/87/SIU-III on 1st May, 1987. The CBI
submitted its report to the Department of Personnel and Training on 31st
January, 1989, recommending prosecution of Mohan Lal Jatia, Pushpa Devi
Jatia, Ashok Jatia, Ashok Jain, Gurcharan Singh and Milap Chand under the
provisions ofSection 120B, 193, 218, 468, 471, 468, 420 IPC read with Section
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511 of IPC. This investigation report was placed before the Supreme Court in
1994. On 20th July, 1994, Supreme Court passed a detailed order directing its
Registrar General to prepare a complaint in terms of Section 195 Cr. P.C. read
with Section 340 Cr. P.C. and file it before the competent Court for action. The
complaint was thus filed by Registrar General of Supreme Court before the
Court of CMM, Delhi, on 19th August, 1994. From 1994 till 1999, the accused
persons were being summoned and ultimately on 27th November, 1999,
Metropolitan Magistrate (MM) observed that compliance under Section 207 Cr.
P.C. has been done. This order of learned MM was assailed by the accused
persons in a Criminal Revision on 14th January, 2000. Thereafter one of the
accused filed an application under Section 210 Cr. P.C., regarding procedure to
be followed when there was a complaint case and police investigation in respect
of the same offence. This application underSection 210 Cr. P.C. was disposed
of vide order dated 15th July, 2000 by MM observing that the case instituted by
the Registrar General of Supreme Court was to be dealt with as if it was
instituted on a police report in view of Section 343 (1) of Cr. P.C. This order
was assailed before this Court vide Crl. M.C. No. 2452/2000 and the accused
also sought quashing of complaint pending before the Court of MM. This Court
vide order dated 18th March, 2004, dismissed the Crl. M.C. No. 2452/2000. On
11th December, 2009, the petitioner again moved an application before the Trial
Court, again assailing the procedure adopted by the Trial Court and stated that
the Trial Court should adopt the procedure as mentioned in Chapter XIX-B of
Cr. P.C. This application was dismissed by the learned CMM and this petition
has been filed assailing the order of learned CMM.

3. Chapter XXVI of Cr. P.C. deals with the offences affecting administration of
justice. These are those offences which are committed by the accused persons
or witnesses during pendency of trial or otherwise when the matter is pending
before the Court. While Section 340 of Cr.P.C. gives no details about the
procedure to be adopted by a Court where an offence against administration of
justice is committed, Section 343 of Cr. P.C. provides the procedure to be
followed by a Magistrate to whom a complaint is made under Section 340 Cr.
P.C. Section 343 (1) of Cr. P.C. specifically provides that a complaint made to
the Magistrate under Section 340 or 341 Cr. P.C., notwithstanding anything
contained in Chapter XV (Chapter dealing with complaint cases), is to be dealt
with as if it was instituted on a police report. Section 344 Cr. P.C. provides for

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following of a summary trial procedure for trial in cases of giving false evidence,
by the same Court where false evidence is given. Under Section 344 of Cr.
P.C., the trial court has option to follow summary trial procedure and convict the
offender who commits an offence affecting administration of justice with
punishment up to 3 months imprisonment. It also provides that the Court, at its
discretion, may make a complaint under Section 340 Cr. P.C. Similarly, Section
345Cr. P.C. prescribes procedure in cases where offences as prescribed
in Section 175, 178, 179&180 of Cr. P.C. or in Section 228 of IPC (offences of
acting administration of justice) and committed by a person in view or presence
of the Court. Under this provision a Court in whose presence the offence is
committed can take cognizance and summarily sentence the person to a fine
not exceeding Rs. 200/- and in default, simple imprisonment extending to one
month can be awarded. Section 346 Cr. P.C. provides that where procedure of
summary trial as given underSection 345 Cr. P.C. is not followed and the court
considers that punishment of fine of Rs. 200/- was not adequate, the Court may
forward the case to Magistrate, having jurisdiction to try the same. Section
346 (2) Cr. P.C. again emphasizes that the Magistrate to whom a case is
forwarded under Section 346(1) Cr. P.C., shall proceed and deal with the case
as if it was instituted on a police report.

4. The different provisions of this Chapter make it clear that intention of

Legislature had been that either the offences against administration of justice
should be tried summarily by the concerned Court or if the complaint is filed by
the Court regarding such offences, the complaint should be treated as a police
report. In view of clear mandate of the statute there can be no doubt about the
procedure which has to be followed by the Courts below and the complaint filed
by the Registrar General of Supreme Court has to be treated as a police report
and the trial of the petitioner and the other accused persons has to be
conducted in the same manner as a trial of a warrant case on police report
case is done.

5. The learned counsel for the petitioner has relied upon Ajay Kumar Ghose Vs.
State of Jharkhand, AIR 2009 SCC 115 to press the point that procedure to be
followed by a Magistrate should be a warrant trial procedure as provided
under Section 244, 245 and 246 of Cr. P.C. and submitted that since a
complaint was filed by the Registrar General of Supreme Court, pre-charge

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evidence should be recorded by the Court of CMM and after recording of pre-
charge evidence, it should be considered whether there was sufficient evidence
to frame charge or not. I consider that this case does not help the prosecution.
In Ajay Kumar Ghose case an official of High Court had filed a complaint
under Section 340 Cr. P.C. The complaint was not accompanied by any
material in support of complaint. The accused appeared in pursuance of
summons sent to him under Section 244 Cr. P.C. and came out with an
application for discharge. The learned MM dismissed the application and framed
charges against the accused. The Supreme Court in para 34 of the Ajay Kumar
Ghose judgment observed that there was absolutely nothing before the learned
MM beyond the complaint to consider framing of charge and the learned MM
could have undoubtedly proceeded under Section 245(2) of Cr. P.C. on the
basis of discharge application and discharged him. In view of Section 245(2) Cr.
P.C., the Court could have discharged the accused even before any evidence
was recorded. Since in the case before learned MM, the complainant was High
Court, no statements were recorded by the Court of MM and there was no
other material before the Court of MM but the Court of MM still framed the
charge. It is under these circumstances that Supreme Court allowed the SLP
and remanded back the case for recording of complainant’s evidence.

6. In the present case, the Supreme Court had ordered holding of an inquiry by
CBI before directing a complaint to be filed against the petitioner and the CBI
had collected entire material which showed the commission of offence and only
after the investigation was completed by the CBI, that the Supreme Court
directed making of a complaint under Section 340 Cr. P.C. It is not a case
where a bare complaint was available before the Magistrate and there was no
other evidence available before the Magistrate. The Magistrate in this case was
to decide about framing of charge on the basis of evidence available on record
and to see whether charge is made out or not. Moreover, the Supreme Court in
Ajay Kumar Ghose (Supra) case was not asked to consider if the warrant trial
procedure as applicable to complaint cases was to be followed in all cases
underSection 340 Cr. P.C. when a complaint is filed by the Court. The statute
had specifically stated that a complaint sent by the Court under Section 340 Cr.
P.C., notwithstanding the procedure of Chapter XV of Cr. P.C., has to be
considered as a police report and the case has to proceed as if it was made
on a police report. Thus, procedure as available under Section 245 and 246 of

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Cr. P.C. of recording of evidence of complainant twice over would not be the
procedure to be followed.

7. The other case relied upon by the petitioner is Godrej & Boyce Mfg. Co. Pvt.
Ltd. Vs. UOI, 1992 Cri.L.J. 3752 and it has urged that the Bombay High Court
had held that procedure of warrant trial in complaint case is to be followed. This
contention also must fail. In Godrej& Boyce Manufacturing Co. Pvt. Ltd. (Supra)
case, the Court itself observed that they had not made preliminary inquiry into
the case and the Court had not issued notice to summon at least to some
among the prospective accused.

8. In the present case, a preliminary inquiry was got done by Supreme Court
through CBI and after getting the investigation done through CBI, the Supreme
Court directed its Registrar General to file a complaint against those persons
who were found involved in the offence in the investigation done by the CBI. I,
therefore, consider that no pre- charge evidence was required to be recorded in
the present case and the procedure being advocated by petitioner, second time
before this Court was not the correct procedure.

9. Even otherwise, I consider that in view of clear mandate of the statute that
the complaint under Section 340 Cr.P.C. is to be treated as a police report, the
procedure to be followed by the learned CMM is that of a warrant trial case on
a police report and not of a warrant trial case on a complaint.

10. The counsel for the petitioner referred to R.S. Nayak Vs. A.R. Antulay, 1984
(3) SCC 86 case to justify re-agitating the issue again before this court and
stated that even Supreme Court reversed its own decision when it found that
the earlier decision was contrary to procedure laid down in Code of Criminal
Procedure. We must remember that A.R. Antulay’s case is not an example of
civil liberty, but, is an example of as to how a judicial death can be given to a
complaint. In Antulay’s case a complaint of documented corruption died an
unnatural death because of multifarious Writs and SLPs, despite the fact that for
every ton of cement, for which licence was granted, a fixed amount of donation
was paid by the licencees in the Trusts created for this purpose and the entire
payment was documented. Despite all that, the complaint against corruption got
killed and nothing happened, courtesy Indian Judicial System. The judicial
process is often used as a tool to see that even if there is documented proof of
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commission of crime, the accused gets scot free because of multifarious levels
of appeals, writs, revisions, 482 Cr. P.C. petitions and SLPs to which the
accused and petitioners have unlimited access under the present system. The
real judicial reform can come in this country only when, despite the strength of
money power and political power, one is not able to capture the judicial system
and hold it to ransom on the strength of this power.

11. The present petition is a gross misuse of the judicial process. The accused
persons have came second time before this Court assailing the procedure being
adopted by the learned MM. The whole effort of the accused persons seems to
be not to allow the trial to proceed further. The case is a glaring example how
the trial can be stalled by adopting delaying tactics. The complaint of an offence
committed in 1986 in respect of administration of justice in Supreme Court,
where a false affidavit was filed, despite investigation got done from CBI by the
Supreme Court followed by a complaint to CMM, Delhi through its Registrar
General in the year 1994 is still at initial stage. From the year 1994, we are in
2010. For these 16 long years, the trial has not proceeded an inch. Those who
talk of judicial reforms must take note of such numerous cases pending in
Courts where the judicial process is misused to see that the trials do not
proceed further.

12. The petition being frivolous is dismissed with cost of Rs. 1,00,000/- to be
deposited with Delhi High Court Legal Services Committee.

SHIV NARAYAN DHINGRA, J.

th 12 AUGUST, 2010 acm