Anitha vs Bava

P.A. Mohammad, J.—This is a case where civil Court has initiated criminal prosecution against a party-litigant in a civil litigation. The question raised is whether the civil Court has inherent power to initiate criminal proceedings u/s 151 of the Code of Civil Procedure.

The facts required for title disposal of this case are briefly stated hereunder. The first Petitioner who was residing in Bombay had agreed to sell her property through her power of attorney holder, the second Petitioner, to the Respondent, who had advanced an amount of Rs. 10,000. However, the transaction between the Petitioners and the Respondent did not take place and later it ended in the suit O.S. No. 197/88 before the Munsiff's Court, Kodungallur. The said suit was filed by the Respondent herein for realisation of the money advanced by him to the Petitioners. He filled I.A. 664 of 1988 for attachment of plaint-schedule property in O.S. No. 197/88. In that proceedings, the Petitioners took an undertaking before the Court that the property would not be sold without obtaining permission from the Court. However, the property was sold in violation of the said undertaking. Thereafter the Respondent filed a petition for prosecuting the Petitioners for violation of the undertaking. It was alleged therein that the Petitioners had committed offences under Sections 193, 196, 199, 200 and 206 I.P.C. It was therefore prayed that the prosecution shall be initiated u/s 340 of the Code of Criminal procedure. However, the said petition was styled as one u/s 151 of the Code of Civil Procedure.

Section 340 of the Code of Criminal Procedure reads thus:

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 interests 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 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;

(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and,

(e) bind over any person to appear and give evidence before such Magistrate.

What is contemplated under the above provision is only a preliminary enquiry in order to see whether the person concerned has committed any offence referred to in Clause (b) of Sub-section (1) of Section 195. The offences referred to in the above provisions are the offences punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code. The position of the Court u/s 340 of the Code of Criminal Procedure is just like any other complainant in a criminal case, though the reasons recorded by it are likely to have great bearing and impact on the Court trying the criminal prosecution. The accused in such cases shall have all defenses as are generally available in criminal prosecutions. What is provided under this section is only to take a decision by the civil Court whether the criminal prosecution is necessary in the facts of the case. The provision contained in Clause (a) to Sub-section (1) is meant for only to record a finding as to whether in a given situation the civil prosecution is expedient in the interest of justice.

Sri P. Vijayabhanu, learned Counsel appearing for the Petitioner contended that the civil Court has no inherent power to direct criminal prosecution and that the Respondent having specifically filed the petition u/s 151 Code of Civil Procedure, the impugned order is able to be set aside. The counsel has brought to my notice the decision in A. Achuthan Vs. Yooseph, That was a case where the Court was considering whether the civil Court has jurisdiction to award costs while disposing a petition u/s 476 or 479-A of the Code of Criminal Procedure, 1898. Section 340 of the present Code corresponds to Section 476(1) of the old Code. After discussing the law on the subject this Court observed:

The procedure u/s 476 or 479A is the one prescribed by the Code of Criminal Procedure and the civil Court gets jurisdiction to go into such proceedings only by virtue of such jurisdiction. I do not think it is correct to say that a civil Court even when trying such cases has inherent jurisdiction to award costs in appropriate cases.

In Kheyali Singh Vs. Nunu Lal Singh, the Patna High Court while dealing with the question of award of costs, held thus:

The civil Court has no inherent power to initiate a prosecution in respect of offences to which Section 476 applies. It derives its jurisdiction to do so from the Code of Criminal Procedure and its procedure must, therefore, be governed by the provisions of that Code. As that Code does not contemplate the award of costs in such cases, the Court has no power to make an order for costs.

I respectfully agree with the views expressed in the aforesaid decisions. The position that emerges from the above discussion is this: The civil Court is given power to initiate criminal prosecution u/s 340. When the specific power is thus given under the said section, there is no reason to invoke the inherent power u/s 151 Code of Civil Procedure. It is true that the Respondents have filed the present petition describing it as one u/s 151 Code of Civil Procedure. That will not in any way drive them out of Court. The Court is concerned with substance and not form. Of course form is relevant, but the substance always prevails.

The Supreme Court in Thayyil Mammo and Another Vs. Kottiath Ramunni and Others, observed that the nomenclature of a deed, though relevant, is not conclusive on the question of construction. The Madras High Court in M.K. Govinda Reddi Vs. E.K. Pattabhi Rama Reddi and Others, said that a deed should be construed not according to the name which is given to it but according to its substance as disclosed by its contents. In Muthuswami Naicker and Others Vs. Ramalinga Naicker, , the Court observed:

In modern times, the mere fact that a section of law rightly applicable to a matter is not quoted, and Anr. section of law not so clearly applicable to the matter is quoted, will not bar the party from relying on the right section of law, if it is not totally irrelevant, or unconnected with the previous section. After all it is the Courts which lay down the law and are supposed to be the reservoirs of law and not parties who file petitions.

A similar question arose in an application u/s 433(c) of the Companies Act before the Patna High Court. In Registrar of Companies v. Chauhan Brothers Industries Pvt. Ltd. (1973) 43 Comp. Cases 525 the Court held thus:

The present application mentions the provision of law, under which it has been filed, as Sub-section (c) of Section 433 of the Companies Act. It does not mention Sub-section (f). During the course of arguments, therefore, learned Counsel for the opposite party pointed out that the question whether it would be just and equitable to order winding up of the company does not arise in the present case. Learned Counsel for the Petitioner has, however, stated that it is the facts alleged in the case which would invite the proper provision of law and even though a wrong provision of law is mentioned in the heading portion of the application, it is still open to the Court to apply a correct provision of law. This argument of learned Counsel is well-founded. The Court does not get jurisdiction in respect of the matter only because of the provision of law mentioned by the applicant. It is for the Court to apply the correct provision of law even though there may be a mistake about it. If the facts in the present case show, as they do, and this Court is satisfied that it would be just and equitable to order winding up the non-mention of the provision of law is, in my view, of no avail. Considering the entire circumstances of this case, therefore, I am satisfied that both the grounds mentioned in Clause (a) and Clause (f) of Section 433 of the Act are satisfied and applied.

Sri S.K. Brahmanandan, learned Counsel appearing for the Respondents also points out that this Court in one case arising in a rent control petition took the same view. In Thankamma v. Vaikom Town Juma Masjid and Mahal Sangham 1987 (2) KLT 780 observed as below:

...for purposes of the institution, his application is not liable to be rejected merely because the particular Sub-section is not quoted in the application. Nor could it be rejected merely on account of making a mention of Sub-section (3) of Section 11 in the application.

Learned Counsel further submitted that the Respondents have pleaded in the present, petition that the Court shall take action u/s 340, even though the petition is filed as one u/s 151 Code of Civil Procedure. That being so, the impugned order is well within the powers of the Court below and hence not liable to be set aside.

The next question is what is the order to be passed in this case. It is brought to my notice that the Petitioner has an effective remedy by way of appeal before the Sessions Court u/s 341 Code of Criminal Procedure as against the impugned order. It is submitted that since the Petitioner has chosen a different forum, his remedy by way of appeal is lost. It cannot be said so. He can still invoke that remedy available under the law. Only hurdle is that such appeal, if filed now will be time barfed. He can very well file an application u/s 5 of the Limitation Act for condonation of delay in filing the appeal. So if such an application is filed, ft is for the Sessions Court to decide the question of condonation of delay after considering all the facts and circumstances of the case. Therefore in the interest of justice, I allow the Petitioner to file an appeal against the impugned order before the Sessions Court with a petition for condonation of delay.

With the above observation, the civil revision petition is dismissed. No. costs.