Application u/s. 340(1) of code of criminal procedure in civil suit at maharashtra
Sadanand B. Panchal
(Querist) 31 July 2013
This query is : Resolved
Respected Lawyers,
I am Plaintiff in person have filed a civil Suit for right of way. At the time of ad-interim stage the Defendant opposed my Notice of motion by way of filing false documents and false affidavit.At that time I was not aware of the said evidence to be false and I could not proved my prima-facie case and my ad-interim reliefs were refused by the Hon'ble City Civil Court. My inerim Notice of motion is pending. During the time I found that the evidence and Affidavits filed by the Defendant are totally false. I got certified copy of the evidence and want to file an application under Section 340(1) of CrPC in order to bring the notice of the said fact of purgery before the Hon'ble Court.
But question is under which form the said application to be filed i.e. in the form of- Notice of Motion,Chamber summons or Affidavit? I don't know. I asked various Advocates but this type of application is rarely filed and hence I could not got the exact solution. For Example under Sec.340(1) of CrPC no relief can be prayed and the Court is also not bound to take action under this Section. If I file Affidavit, the Hon'ble Court might ignore the same. If I file N/M or Ch/s and if in case the Court dismiss it I cannot file Appeal. I want to file such form of application so that it will be registered.
Kindly give me a solution that when there is to file the said application in civil Suit under which form the Advocates use to file the Application U/s. 340(1) of CrPC? Whether Notice of Motion, Chamber Summons or any other form. Please give me the solution in order to save my Suit from dismissal as the Hon'ble Court has already believed the false evidence of the Defendant.
Regards,
Sadanand B. Panchal
Advocate M.Bhadra
(Expert) 31 July 2013
If the original suit pending the you can file an application u/sec.340 Cr.p.C. read with sec.195 Cr P.C.in the same Civil Court as a Misc.case arising out of original suit.The Notice should serve upon Defendant/opp.party.
Re: Sec 340 Cr.PC
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 interest 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;
Sadanand B. Panchal
(Querist) 31 July 2013
Respected Sir,
Whether the Title of the Application as "Miscellaneous Case No. ____ of 2013" ?
Kindly inform me.
Regards,
Sadanand B. Panchal
Dr J C Vashista
(Expert) 01 August 2013
Mr. Panchal,
This will the a Miiscellaneous applicaton,
to be filed under the subject "Application Under Section 340 Cr. PC after recording evidence for referring the matter to CMM/CJM for taking cognizance, issue of summons, try and punish the accused"
Raj Kumar Makkad
(Expert) 01 August 2013
Such application is filed in the same civil suit so question of new registration do not arise. At later stage when the court is satisfied with the evidence brought in the support of the application then the notice can be sent to the opposite party and thereafter the cognizance can be taken.
Sadanand B. Panchal
(Querist) 03 August 2013
Respected Sir,
Thanks for advice. Sir, I am in person handling the matter. The Defendant is very big party,developer for one Housing society.Both and BMC are the Defendants. In 1973 the same Hon'ble Civil Court passed order dismissing the suit of the Society against my father & others and the decision was not challenged by appeal by the Society.Therefore the Society have not squired title to the suit property. I obtained the certified copy of the said order/decision of 1974 but after my ad-interim reliefs were refused by the Hon'ble Court though I made my arguments strongly. The Defendants filed Affidavits claiming that the Society is owner of the property knowing very well that the order of dismissal of the year 1974. As I am Plaintiff in person I found that the Court not giving sympathy to me for example I never remained absent the matter and last hearing I was late for 5 minutes because of heavy rain on 29-07-2013, the Court kept my N/M and Ch/S both for dismissal on 31 August. So I afraid that the Hon'ble Court might refuse to accept my Application under Section 340(1) of CrPC. Then there might possibility that the rejection may not be recorded in Roznama. I have full chance to win in the matter N/M and Ch/s.
There is order of Hon'ble Bombay High Court in (NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION No.1115/07)-“Whenever an application under Section 340 of Code of Criminal Procedure is filed, the Civil Manual Chapter
XIX para 337 requires that it should be registered as Miscellaneous Judicial Case
i.e. a case where a Judicial
Enquiry is contemplated.”
My real query is- my subject application required to be registered just like N/M or Ch/s but if in case not registered by the Hon'ble Court can I have any remedy to file Appeal?
Regards,
Sadanand B. Panchal
