Case Note & Summary
The petitioner, Michael Gabriel, was the original defendant No.1 in an Interpleader Suit No.1011/2011 filed by the first respondent, Dattaram Kashiram Ambre, against the petitioner and the second respondent. The Small Causes Court dismissed the suit on 25/2/2014, and that judgment was not challenged. Subsequently, the petitioner alleged that during the suit, one Mr. Alpesh Hasmukh Sheth, examined on behalf of the second respondent, made a false statement on oath in paragraph 12 of his affidavit in examination-in-chief. Based on this, the petitioner filed Misc. Application (St) No.2602/2019 before the Small Causes Court under Section 340 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking action against Mr. Sheth for perjury. Since there was a delay of 949 days in filing that application, the petitioner also filed Misc. Application (St) No.2603/2019 for condonation of delay. The Small Causes Court, by order dated 23/10/2019, issued notice to the respondents (the original plaintiff and defendant No.2) on the delay condonation application. The petitioner challenged this notice in the present writ petition. The legal issue was whether the court could issue notice under Section 340 Cr.P.C. without first forming a prima facie opinion that an inquiry is necessary. The petitioner argued, relying on Pritish v. State of Maharashtra (2002) 1 SCC 253, that the court must first form a prima facie opinion before issuing notice. The respondents contended that the notice was only on the delay application and was procedural. The High Court held that the issuance of notice at the stage of considering the delay condonation application was premature and without jurisdiction. The court emphasized that under Section 340 Cr.P.C., the court must first apply its mind and record a prima facie satisfaction that an offence appears to have been committed before directing an inquiry or issuing notice. The impugned order was quashed and set aside, and the Small Causes Court was directed to first decide the delay condonation application and then, if the main application is entertained, proceed in accordance with law.
Headnote
A) Criminal Procedure - Section 340 Cr.P.C. - Preliminary Stage - Notice - The court cannot issue notice to the proposed accused before forming a prima facie opinion that an inquiry into the offence of perjury is necessary. Issuance of notice at the stage of considering an application for condonation of delay is premature and without jurisdiction. (Paras 8-10) B) Criminal Procedure - Section 340 Cr.P.C. - Condonation of Delay - The application for condonation of delay in filing a Section 340 application is not a stage where the court can issue notice to the opposite party. The court must first decide the delay application and then, if the main application is entertained, form a prima facie opinion before issuing notice. (Paras 8-10) C) Criminal Procedure - Section 340 Cr.P.C. - Prima Facie Opinion - The court must apply its mind and record a prima facie satisfaction that an offence appears to have been committed before directing an inquiry or issuing notice. A mere filing of an application does not warrant notice. (Paras 8-10)
Issue of Consideration
Whether the Small Causes Court could issue notice to the respondents in an application under Section 340 of the Code of Criminal Procedure, 1973 without first forming a prima facie opinion that an inquiry is necessary
Final Decision
The impugned order dated 23/10/2019 passed by the Small Causes Court at Mumbai in MARJI/328/2019 is quashed and set aside. The Small Causes Court is directed to first decide the delay condonation application and then, if the main application under Section 340 Cr.P.C. is entertained, proceed in accordance with law after forming a prima facie opinion.
Law Points
- Section 340 Cr.P.C. requires court to form a prima facie opinion before issuing notice
- notice without such opinion is without jurisdiction
- delay condonation application cannot be used to bypass procedural requirement
