Michael Gabriel v. Dattaram Kashiram Ambre & Ors.

1. Rule. Rule made returnable forthwith.

2. The learned counsel for the respondents waives service. Heard finally by consent of the parties.

3. The challenge in this petition, is to the order dated 23/10/2019 passed by the learned Small Causes Court at Mumbai in MARJI/328/2019. By the said order, all that the Small Causes Court has done, is to issue a notice to the respondents therein (the original plaintiff and the defendant No.2). Mamta Kale

4. The first respondent, had filed a Interpleader Suit No.1011/2011 against the petitioner (defendant No.1) and the second respondent (defendant No.2).

5. The learned Small Causes Court has dismissed the Suit by a judgment and order dated 25/2/2014. That judgment is not shown to be challenged any further.

6. The petitioner (defendant No.1) claims that during the course of evidence in the said Suit, Mr. Alpesh Hasmukh Sheth, who was examined on behalf of the second respondent, a false statement was made on oath, to mislead the Court, which can be seen from para 12 of the affidavit in examination-in-chief. It is in these circumstances that the petitioner filed an application being Misc. Application (St) No.2602/2019 before the Small Causes Court under Section 340 of the Code of Criminal Procedure (‘the Cr.P.C.’ for short). The petitioner wants action being taken against Mr. Alpesh Sheth under Section 340 of Cr.P.C. According to the petitioner, there is a delay of 949 days in filing the said application and therefore, a separate Misc. Application (St) No.2603/2019, was filed for condonation of delay in filing the application under Section 340 of Cr.P.C. The learned counsel for the petitioner, pointed out that the order of issuing notice which is impugned in this petition, is passed on the application for condonation of delay.

7. I have heard Mr. Abhinav Chandrachud, the learned counsel for the petitioner and Mr. J. S. Kini, the learned counsel for the respondent No.2. Perused record.

8. Mr. Chandrachud, the learned counsel for the petitioner has placed reliance on the decision of the Supreme Court in the case of Pritish Vs. State of Maharashtra & Ors. (2002) 1 SCC 253 in order to submit that the Court is not required to issue notice or afford any opportunity of hearing to the person against whom an action / complaint under Section 340 of Cr.P.C. might be filed, before initiating the prosecution. It is submitted that the object of the preliminary inquiry under sub-section 1 of Section 340 of Cr.P.C., is not to find, whether a person is guilty or not. The only object is to decide whether it is expedient in the interest of justice to inquire into the offence It is thus submitted that the person against whom a complaint under Section 340 of Cr.P.C. is proposed to be filed, is not entitled to a right of hearing and therefore, even in the application seeking condonation of delay in filing such application under Section 340 of Cr.P.C., no notice could have been issued. In the submission of Mr. Chandrachud, when the person proposed to be proceeded against is not entitled to a notice in the main application under Section 340 of Cr.P.C., there is no question of issuing a notice even in an application for condonation of delay in filing the main application. It is submitted that if such notice is issued on the application for condonation of delay, it would lead to an incongruous situation where the person would be heard in the application for condonation of delay, however, once the delay is condoned, he would not be required to be heard. It is submitted that such an interpretation would not be acceptable.

9. Mr. Kini, the learned counsel for the respondent No.2 has submitted that the main application under Section 340 of Cr.P.C. is itself vexatious. He has pointed out that there are several instances where the petitioner has filed such vexatious application / proceedings and this is one more attempt to vex and annoy the respondent. He submitted that even otherwise the impugned order merely issues a notice and cannot be challenged. He submitted that the petition be dismissed with exemplary costs.

10. On 23/11/2020, the present petition was adjourned in order to enable the parties to further assist the Court on the point whether if in the main proceedings no notice is required, whether a notice can be issued in application seeking condonation of delay.

11. Mr. Chandrachud, the learned counsel for the petitioner has come up with a decision of the Supreme Court in the case of State of Maharashtra Vs. Sharadchandra Vinayak Dongre and Ors. (1995) 1 SCC 42 and the decision of the Full Bench of the Gujarat High Court in State of Gujarat Vs. Kailashchandra Badriprasad 2000 SCC Online

12. In view of the fact that the impugned order is said to be passed on the application for condonation of delay, presently I am only concerned with the issue whether such notice is necessary and could have been issued on the application seeking condonation of delay.

13. In the case of Sharadchandra Dongre (supra), the learned Chief Judicial Magistrate had condoned the delay in launching of the prosecution without notice to the respondent / accused or permitting them to file their say. The contention on behalf of the State was that if the accused is not entitled to a notice when such prosecution is initiated (in the event it is filed within limitation), there is no question of issuance of a notice in the application for condonation of delay in launching such prosecution. Repelling the contention, the Supreme Court found that the delay, if any, for launching prosecution could not have been condoned without notice to the respondents and behind their back and without recording any reason for condonation of delay.

14. The question before the Full Bench of the Gujarat High Court was whether the delay in filing an appeal by State challenging the acquittal of the accused, can be condoned without giving an opportunity of hearing to the accused. The Full Bench held that although it is true that the accused has no right to be heard in the matter where the Court is intending to take the cognizance and before the process is issued, the accused has no say in the matter. However, the Full Bench found that to take cognizance is one thing and to say that the delay caused in filing the prosecution should be condoned, without hearing the accused, is quite different. Thus, the Full Bench placing reliance on the decision of the Supreme Court in Sharadchandra Dongre (supra) held that the accused would be entitled to a notice. This is what is held in para 14 and 16 of the judgment. “14. Over and above, this, Code also prescribes the commencement of period of limitation and exclusion of time in certain cases including the date of which the Court is closed. There is a specific provision with reference to continuing offence. The Apex Court para 5 of the judgment in the case of Sharadchandra Dongre (supra) approving the decision of the High Court, observed that the High Court was perfectly justified in holding that the delay, if any, for launching the prosecution, could not have been condoned without notice to the respondents and behind their back and without recording any reasons for condonation of delay. In view of this, it was submitted before us that when the principle of audi alteram partem is required to be borne in mind, the delay could not be condoned without hearing the affected party. It is submitted before us, and rightly so, that though there is no specific provision for issuance of notice to the accused or hearing the accused, the same is to be are as in the provision. The Court while passing an order of condoning the delay which is likely to adversely affect the respondent, is obviously required to hear the respondent. The party against which the Court is intending to pass the order of condonation of delay has a direct and substantial interest in the matter, and therefore, the Court can pass the order only after hearing such party. It is true that the accused has no right to be heard in a matter where the Court is intending to take the cognizance and before the process is issued, the accused has no say in the matter. However, to take the cognizance is one thing, and to say that the delay caused in filing a prosecution should be condoned or not without hearing the accused is quite a different thing. The accused in case of delay will be heard not on merits of the case i.e. whether to take the cognizance or not, but he will heard only on the question whether delay should be condoned or not.

16. It is required to be noted that, after an order of acquittal is recorded by a competent Court, the valuable right flows in favour of the accused. Without hearing the person acquitted, on the question of delay in preferring an appeal, neither the delay can be condoned nor the appeal could be admitted by considering the delay without notice to the other side. In a given case, even if there is a delay of few days, the respondent-accused may be in a position to point out that the delay is not required to be condoned. In a given case, there may be a longer delay, yet the prosecution by placing sufficient material for explaining the delay, can persuade the Court to condone the delay, and despite hearing the accusedrespondent, the Court may condone the delay. (Emphasis supplied)