A division bench of the Apex Court held as follows,
From Para 25,
25. It has been held that there are certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or a family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, the High Court would be justified in quashing the criminal proceedings, even if the offences have not been made compoundable.
From Para 28,
28. In paragraph 61, this Court observes that, in which cases power to quash the criminal proceeding or complaint or FIR may be exercised, where the offender and the victim have settled their dispute, would depend on the facts and circumstances of each case. However, the Court reiterates that the criminal cases having an overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing. The Court particularly refers to the offences arising out of commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. The Court finds that in such cases, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.
A single judge of Calcutta High Court held as follows, regarding an Ad-interim maintenance order granted to a Doctor-wife,
From Para 1.2,
1.2. The Petitioner assailed the impugned order primarily on the grounds of procedural irregularity, the material suppression of facts regarding the Wife’s independent professional income, and a fundamental violation of the principles of natural justice.
From Para 1.5,
1.5. Central to the Wife’s grievance is a socially sensitive allegation of a “grave breach of marital trust,” predicated upon an asserted incestuous proximity between the Husband and his first cousin. Conversely, the Petitioner characterizes these allegations as “bohemian fabrications,” contending that his involvement with the said relative was purely a discharge of familial guardianship during a period of financial exigency.
From Para 1.7,
1.7. The core of the Petitioner’s grievance lies in the “procedural haste” displayed by the Learned Court below. The impugned order was passed on the very day the Domestic Incident Report (DIR) was placed on record, without the Petitioner being afforded an opportunity to file his Affidavit of Assets and Liabilities, thereby bypassing the mandatory procedural architecture mandated by the Hon’ble Supreme Court in Rajnesh v. Neha.
From Para 6.1.6,
6.1.6. In the present case, the record reveals that the Learned Magistrate passed the ad-interim order on the very day the Domestic Incident Report (DIR) was filed, without even directing the parties to file their respective Affidavits of Assets and Liabilities. Where a subordinate court bypasses a mandate issued by the Supreme Court under Article 141 of the Constitution, such an order is not merely “erroneous,” but is passed in excess of jurisdiction. In such circumstances, relegating a party to a time-consuming appeal would amount to perpetuating a procedural illegality.
From 6.1.8 to 6.1.10,
6.1.8. If the Wife, being a high-earning specialist, suppressed her professional standing to fit the narrative of a “destitute” woman, the resulting order is tainted by a suppression of material facts. While an appellate court could examine this, the High Court under Section 482 is the appropriate forum to exercise its “supervisory-inherent” role when the integrity of the judicial process is at stake. 6.1.9. Distinguishing the present facts from cases where revisions are dismissed due to the availability of an appeal, this Court observes that in those instances, the challenge usually pertains to the appreciation of evidence. Here, the challenge is to the validity of the procedure itself. If the Learned Magistrate has bypassed the “due process” of financial disclosure, the order becomes an abuse of the process of the court. 6.1.10. Consequently, this Court holds that the Revisional Application is maintainable. The statutory bar of Section 29 of the P.W.D.V. Act does not fetter the inherent power of the High Court to strike down an order that is ex-facie violative of the mandates of the Apex Court and is predicated upon an evidentiary void created by material suppression. The jurisdictional gate is, therefore, open for an inquiry into the merits of the procedural and substantive challenges raised by the Petitioner.
From Para 6.2.2,
6.2.2. It is observed from the record that the impugned order was passed on 01.06.2022. A perusal of the order sheet reveals a striking “procedural leap”; the Learned Magistrate took cognizance of the DIR and, in the same breath, quantified the ad-interim maintenance at ₹20,000/- per month. While Section 23 of the P.W.D.V. Act undoubtedly empowers the Magistrate to pass such interim orders as are “just and proper,” this discretion is not a license for judicial arbitrariness. It must be exercised within the guardrails of procedural due process.
From Paras 6.2.4 to 6.2.8,
6.2.4. In the present case, the Learned Magistrate proceeded to fix the quantum before the Petitioner-Husband was even afforded an opportunity to file his Affidavit. This methodology fundamentally undermines the “Disclosure Regime.” While the Wife’s counsel argues that Section 23(2) permits ex-parte orders to prevent immediate starvation, such an argument must be reconciled with the fact that the parties here are not from a marginalized socio-economic background, but are an Engineer and a Doctor. In such high-stakes litigation involving professionals, the “emergency” must be weighed against the “accuracy” of the financial data. 6.2.5. Furthermore, the ratio in Rajnesh v. Neha emphasizes that the Court must consider the “standard of living,” the “essential expenditures,” and the “actual income” of both parties. By awarding ₹20,000/- without having the Petitioner’s salary certificate or the Wife’s disclosure of her specialized clinical income on record, the Learned Magistrate acted in a vacuum. This Court finds that such “rational guesswork” becomes “irrational” the moment it ignores a mandatory Supreme Court guideline. 6.2.6. Comparing the present facts with the spirit of the directions in Aditi alias Mithi v. Jitesh Sharma [2023 SCC OnLine SC 1451], the Supreme Court reiterated that the guidelines in Rajnesh are not mere “suggestions” but are “mandatory instructions” to be followed by all Courts. The failure to elicit the Affidavit of Assets and Liabilities before determining the quantum, even at the ad-interim stage, results in a failure of justice, as it saddles the husband with a liability based on the wife’s unilateral (and often inflated) assertions. 6.2.7. In this case, the Petitioner asserts a net income of ₹70,000/-, while the Wife alleges ₹2,10,000/-. Without the Affidavit, the Magistrate had no legal basis to choose one figure over the other. The “haste” shown by the Learned Magistrate in quantifying the amount on the very first day of the DIR filing, without waiting for the Petitioner’s financial disclosure, constitutes a patent procedural irregularity. 6.2.8. Accordingly, this Court holds that the Learned Magistrate committed a jurisdictional error by bypassing the mandatory requirement of exchanging Affidavits of Assets and Liabilities. While the Magistrate had the power to grant ad-interim relief, the quantification of that relief without following the Rajnesh v. Neha timeline renders the order procedurally fragile and unsustainable in law. The “emergency” power under Section 23 cannot be used to circumvent the “due process” of financial transparency.
From 6.3.2,
6.3.2. It is a settled principle that the phrase “unable to maintain herself” does not contemplate a state of absolute destitution or beggary. However, judicial interpretation has evolved to distinguish between a spouse who cannot work and one who chooses not to work despite being highly qualified. In the instant case, the Petitioner has produced prima facie evidence of the Wife’s professional credentials, which the Wife does not deny; rather, she masks them under the shroud of current “unemployment.”
From Para 6.3.6,
6.3.6. Furthermore, we must address the Wife’s silence regarding her professional status in her initial application. A litigant who seeks equity must come with clean hands. By identifying herself simply as a “Doctor” without disclosing her specialized rank and previous lucrative emoluments, the Wife engaged in what this Court terms “strategic suppression.” Such suppression vitiates the claim for discretionary ad-interim relief, as it prevents the Magistrate from balancing the equities properly.
From Para 6.4.2
6.4.2. In the traditional paradigm of maintenance, Courts were often reluctant to investigate the “earning potential” of a spouse at the threshold stage, focusing primarily on the “actual income” of the husband. However, the modern judicial trend, as articulated by the Hon’ble Supreme Court, has moved toward a more symmetrical and realistic assessment of financial status.
From Para 6.4.4,
6.4.4. The use of the word “shall” in the context of these criteria makes it mandatory for the Magistrate to weigh these factors even at the ad-interim stage. If a spouse is a Specialist Doctor, her potential to earn is not a distant possibility but a present reality. To ignore this potential while saddling the husband with a substantial financial liability is to tilt the scales of justice unfairly. The P.W.D.V. Act is a protectionist measure for the vulnerable, not a mechanism for a professional to withdraw from their social and financial responsibilities to become a “pensioner” of the other spouse.
From Paras 6.4.6 to 6.4.9,
6.4.6. In the present factual matrix, the Opposite Party No. 2 has served as a Senior Registrar in Critical Care. This is a niche field of medicine where demand is perennial and remuneration is high. By awarding ₹12,000/- for the Wife’s personal maintenance without evaluating why a Critical Care Specialist is “incapable” of earning even a fraction of her previous salary, the Learned Magistrate failed to apply the “balancing test” of earning capacity. 6.4.7. While the Wife argues that she has to care for a minor child, this Court observes that in contemporary professional circles, especially among the “Engineer-Doctor” class, childcare is frequently managed through professional assistance or family support to allow both parents to maintain their career trajectories. A total professional abdication, coupled with a demand for maintenance, must be justified by something more substantial than a mere statement of current unemployment. 6.4.8. Furthermore, the principle of “Equitable Distribution of Responsibility” suggests that when both spouses are highly qualified, the burden of maintenance cannot be placed solely on the husband’s shoulders. The “earning capacity” is not merely an academic factor; it is a substantive check against the abuse of the court’s process by a spouse who suppresses their potential to secure an inflated maintenance order. 6.4.9. Therefore, this Court holds that “Earning Capacity” is a mandatory material consideration at the ad-interim stage. The failure of the Learned Magistrate to calibrate the quantum of maintenance against the Wife’s specialized professional status constitutes a failure to exercise jurisdiction in accordance with the principles of equity and the mandates of the Apex Court. The “earning potential” of a Specialist Doctor must be set off against her claim for maintenance to arrive at a “just and fair” figure.
Note: That part where the Judge says claim of child in a DVC is isolated from parents litigation, is bullshit, in my opinion, and hopefully be set aside by Supreme Court (or another bench of Calcutta High Court) in a future case.
18. With great respect, we express our reservations in fully acceding to what has been stated above. If Paragraph 8 of Minakshi Bala (supra) is accepted as it is, the necessary concomitant would be that despite examining the matter in detail, a Court would find its wings clipped to intercede. This would amount to forcing a person to stand trial, even when the overwhelming material points to his/her innocence. Obviously, the hands of a Court ought not to be tied down, and especially not by a higher Court, and moreso not against liberty. Paragraph 7 of Minakshi Bala (supra) does enable examining unimpeachable documents. We are conscious that Minakshi Bala (supra) has been followed in later decisions by the Court. However, we have chosen to survey the precedents further, and then decide on the road we wish to take13.
From Para 23,
23. On a careful conspectus of the legal spectrum, juxtaposed with our view on the facts and merits expressed hereinbefore, we are satisfied that there is no suspicion, much less strong or grave suspicion that the appellants are guilty of the offence alleged. It would be unjustified to make the appellants face a full-fledged criminal trial in this backdrop. In an appeal dealing with the refusal of the High Court to quash an FIR under Section 482, CrPC albeit, this Court, while setting aside the judgment impugned therein and quashing that FIR, took the view that ‘…the Appellants are to be protected against vexatious and unwarranted criminal prosecution, and from unnecessarily being put through the rigours of an eventual trial.’15 The protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/Complaint or by allowing an appeal against an order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts. The High Court should have intervened and discharged the appellants. But this Court will intervene, being the sentinel on the qui vive.
A division bench of the Apex Court held that ‘he role played by the accused in the crime should be separately and clearly mentioned in the chargesheet, for each of the accused persons‘.
From Paras 26 to 31, [Importance of clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused]
26. The object and purpose of the police investigation is manyfold. It includes the need to ensure transparent and free investigation to ascertain the facts, examine whether or not an offence is committed, identify the offender if an offence is committed, and to lay before the court the evidence which has been collected, the truth and correctness of which is thereupon decided by the court. 27. In H.N. Rishbud and Inder Singh v. State of Delhi21, this Court notes that the process of investigation generally consists of: 1) proceeding to the concerned spot, 2) ascertainment of facts and circumstances, 3) discovery and arrest, 4) collection of evidence which includes examination of various persons, search of places and seizure of things, and 5) formation of an opinion on whether an offence is made out, and filing the chargesheet accordingly. The formation of opinion is therefore the culmination of several stages that an investigation goes through. This Court in its decision in Abhinandan Jha and Others v. Dinesh Mishra22 states that the submission of the chargesheet or the final report is dependent on the nature of opinion formed, which is the final step in the investigation. 28. The final report has to be prepared with these aspects in mind and should show with sufficient particularity and clarity, the contravention of the law which is alleged. When the report complies with the said requirements, the court concerned should apply its mind whether or not to take cognisance and also proceed by issuing summons to the accused. While doing so, the court will take into account the statement of witnesses recorded under Section 161 of the Code and the documents placed on record by the investigating officer. 29. In case of any doubts or ambiguity arising in ascertaining the facts and evidence, the Magistrate can, before taking cognisance, call upon the investigating officer to clarify and give better particulars, order further investigation, or even record statements in terms of Section 202 of the Code. 30. Our attention has been drawn to the format prescribed for the State of Uttar Pradesh, which by column 16 requires the investigating officer to state brief facts of the case. In addition, the State of Uttar Pradesh has issued a circular dated 19.09.2023, which refers to an earlier circular bearing No. 59 of 2016 dated 20.10.2016, and states that the investigation provisions contained in the Code and the police regulations with reference to Section 173 of the Code are not being consistently complied with and followed by the investigating officers and the supervising officers. The need to provide lead details of the offence in the chargesheet is mandatory as it is in accord with paragraph 122 of the police regulations. Similar directions were issued on 09.09.2022 following the direction of the High Court of Judicature at Allahabad that brief narration of the material collected during investigation, which forms the opinion of the investigating officer, should be mentioned in the chargesheet. 31. Therefore, the investigating officer must make clear and complete entries of all columns in the chargesheet so that the court can clearly understand which crime has been committed by which accused and what is the material evidence available on the file. Statements under Section 161 of the Code and related documents have to be enclosed with the list of witnesses. The role played by the accused in the crime should be separately and clearly mentioned in the chargesheet, for each of the accused persons.
46. We, however, would allow the present appeal to the extent that the non-bailable warrants issued against Manager Singh are unsustainable and should be quashed. It is a settled position of law that non-bailable warrants cannot be issued in a routine manner and that the liberty of an individual cannot be curtailed unless necessitated by the larger interest of public and the State. While there are no comprehensive set of guidelines for the issuance of non-bailable warrants, this Court has observed on several occasions that non-bailable warrants should not be issued, unless the accused is charged with a heinous crime, and is likely to evade the process of law or tamper/destroy evidence.
From Para 47,
47. Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code31 should not be read in a restrictive manner as applicable only after the accused has been granted bail.This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani32 held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption.33 Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law.34
A practical legal remedy to request the criminal court to close the prosecution evidence when the prosecution has failed to produce its witnesses or evidence despite sufficient opportunities.
In criminal trials, the prosecution must lead evidence to establish the charges against the accused. However, prosecution evidence cannot remain open indefinitely. When the prosecution repeatedly fails to produce witnesses, ignores court directions, or seeks unnecessary adjournments, the accused can file an Application for Closure of Prosecution Evidence.
This application requests the court to close the prosecution evidence and proceed to the next stage of the trial, thereby protecting the accused from prolonged and unnecessary litigation. Consequently, it becomes an important procedural remedy in criminal trials where delays are attributable to the prosecution.
This article explains the legal framework, grounds for seeking closure of prosecution evidence, drafting strategy, and provides a ready-to-use sample format with copy-to-clipboard functionality.
I. Legal Framework
The court’s power to regulate the recording of evidence and prevent unnecessary delays arises from the following provisions:
Under the Code of Criminal Procedure, 1973
Section 309 CrPC – Power to postpone or adjourn proceedings.
Section 231 CrPC – Evidence for prosecution in Sessions trials.
Section 242 CrPC – Evidence for prosecution before a Magistrate in warrant cases instituted on a police report.
Corresponding Provisions under BNSS, 2023
Section 346 BNSS – Power to postpone or adjourn proceedings.
Section 254 BNSS – Evidence for prosecution in Sessions trials.
Section 265 BNSS – Evidence for prosecution before a Magistrate in warrant cases instituted on a police report.
Therefore, the court possesses ample authority to close prosecution evidence when sufficient opportunities have already been granted and further delay would defeat the ends of justice.
II. What is an Application for Closure of Prosecution Evidence?
An Application for Closure of Prosecution Evidence is a formal request made by the accused before the trial court seeking closure of the prosecution evidence on the ground that the prosecution has failed to produce its witnesses or evidence despite repeated opportunities.
The application does not decide the merits of the case. Instead, it requests the court to exercise procedural control over the trial and prevent abuse of adjournments.
III. When Can This Application Be Filed?
You may file this application when:
The prosecution has received multiple opportunities to produce witnesses.
Summons have been issued repeatedly but witnesses remain absent.
The prosecution seeks repeated adjournments without sufficient cause.
Material witnesses have not been examined despite adequate time.
The delay is causing prejudice to the accused.
The trial has remained pending for an unreasonable period.
Accordingly, the application is most effective during the prosecution evidence stage after the court has already granted sufficient opportunities.
IV. Why is This Application Important?
Filing this application helps to:
Protect the accused’s right to a speedy trial.
Prevent unnecessary adjournments.
Avoid prolonged criminal proceedings.
Compel procedural discipline.
Enable the court to proceed to statement of the accused and defence evidence.
Reduce litigation costs and hardship.
Thus, it serves both judicial efficiency and fairness.
V. Factors Considered by the Court
While deciding the application, the court generally examines:
Number of opportunities already granted.
Conduct of the prosecution.
Reasons for witness absence.
Importance of remaining witnesses.
Stage of the trial.
Prejudice caused to the accused.
Overall interests of justice.
The court exercises judicial discretion and may close prosecution evidence if further opportunities are not justified.
VI. Essential Elements of the Application
Before drafting, ensure the application includes:
Name of the court.
Case number and title.
Stage of the proceedings.
Number of opportunities granted to the prosecution.
Failure of prosecution to produce witnesses.
Reference to Section 309 CrPC (Section 346 BNSS).
Prayer seeking closure of prosecution evidence.
A concise and factual application is generally more effective than an argumentative one.
VII. Drafting Strategy
While preparing the application:
Mention the chronology of adjournments.
State that sufficient opportunities have already been granted.
Highlight prejudice caused by continued delay.
Avoid unnecessary allegations against the prosecution.
Request the court to proceed to the next stage of trial.
A well-structured application demonstrates procedural fairness rather than technical obstruction.
Sample Draft – Application for Closure of Prosecution Evidence
IN THE COURT OF THE HON’BLE [COURT NAME]
AT [PLACE]
Case No. ________
State / Complainant
…Prosecution
Versus
[Name of Accused]
…Accused / Applicant
APPLICATION FOR CLOSURE OF PROSECUTION EVIDENCE
The Applicant most respectfully submits:
1. That the present case is pending before this Hon’ble Court and is presently fixed for prosecution evidence.
2. That this Hon’ble Court has already granted several opportunities to the prosecution for producing its witnesses and evidence.
3. That despite repeated opportunities and issuance of summons, the prosecution has failed to produce its witnesses.
4. That the repeated adjournments sought by the prosecution are causing undue delay in the trial and serious prejudice to the Applicant.
5. That sufficient opportunities have already been granted and no useful purpose will be served by granting further adjournments.
6. It is therefore in the interest of justice that the prosecution evidence may kindly be closed and the matter be proceeded with in accordance with law.
PRAYER
It is therefore most respectfully prayed that this Hon’ble Court may be pleased to close the prosecution evidence and proceed to the next stage of the trial, and pass such other order as deemed fit in the interest of justice.
Place: _______
Date: _______
Counsel for the Applicant
✔ Draft Copied Successfully!
IX. Common Mistakes to Avoid
Avoid:
Filing the application after only one or two adjournments.
Making unsupported allegations against the prosecution.
Ignoring the importance of remaining witnesses.
Seeking closure when summons have not yet been properly served.
Filing without verifying the order sheet.
Instead, rely on the record of proceedings and the number of opportunities already granted.
Conclusion
An Application for Closure of Prosecution Evidence is an effective procedural remedy to prevent unnecessary delay and ensure that criminal trials progress efficiently. When the prosecution has failed to produce evidence despite adequate opportunities, the court may exercise its discretion to close prosecution evidence and proceed with the trial, thereby protecting the accused’s right to a speedy and fair trial.
These templates are provided for educational and informational purposes. Every case depends on specific facts and procedural posture. Professional legal advice should be obtained before filing any application.
A division bench of Apex Court passed this reportable judgment.
From Para 10.2,
10.2 It is pertinent to underscore the important role played by the legal fraternity in bringing down the overall pendency of the cases in the Family Courts and criminal cases which are an adjunct to matrimonial disputes by weeding out unimportant and vexatious proceedings undertaken in pursuance of a personal vendetta by unscrupulous litigants so as to fillip attention of the courts towards genuine litigation and pressing issues and adjudication of claims. This would lead to increasing the overall efficiency and disposal of cases while at the same time preventing infraction of the interests of justice and abuse of process of law.
A division bench of Supreme Court held that, ‘Typographical Errors In Pleadings Cannot Trigger Proceedings U/S 340 CrPC Unless They Amount To Deliberate Falsehood’ and ‘Wrong Statement’ In Pleadings Not Necessarily A ‘False Statement’.
Note: This is a Criminal Appeal filed in 2015, got disposed in 2026. A full 12 years… Hope the parties are still alive. Right to speedy trail seems to be a myth in India.
From Para 7,
It is by now settled that while entertaining proceedings under Section 340 of the Cr.P.C., it must be borne in mind that the material produced before the Court ought to make out a prima facie case for an inquiry to be made into an offence referred to in Section 195(1)(b) of the Penal Code. Further, the Court has to also consider whether it is expedient in the interest of justice that such inquiry should be made into the alleged offence. Reference in this regard can be usefully made to the decision of the Constitution Bench in Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another9.
From Para 10,
10. A reading of the aforesaid observations clearly indicates that the Court was prima facie satisfied that ‘wrong statements’ had been made by the defendant and his learned counsel in the miscellaneous appeal and, hence, a prima facie case for lodging a complaint had been made out.
From Para 11,
11. From the aforesaid provisions, it becomes clear that what is punishable is the giving of ‘false evidence’ under Section 193 or making of a ‘false statement’ under Section 199. What is thus required at the stage of directing initiation of proceedings for an offence punishable under the said provisions is a prima facie case of having given ‘false evidence’ or making a ‘false statement’ in a declaration which by law is receivable as evidence. As noted above, the Court for the purposes of directing the filing of a complaint recorded its prima facie satisfaction that ‘wrong statements’ had been made in the memorandum of appeal and the application for stay preferred by the defendant that was filed through his learned counsel. The order dated 19.01.2006 directing lodging of a complaint does not record any prima facie satisfaction that ‘false statement’ had been made in the aforesaid proceedings. There is a material difference between making a ‘wrong statement’ and ‘false statement’ in the context of Sections 199 and 200 of the Penal Code. A ‘wrong statement’ of fact may not always have the character of a ‘false statement’. While making of a ‘wrong statement’ may not fall within the ambit of Sections 199 and 200 of the Penal Code, a ‘false statement’ would qualify as relevant material for being considered as an offence under the said provisions. The threshold for initiating action for an offence punishable under Sections 199 and 200 of the Penal Code is the making of a ‘false statement’ and not the making of a ‘wrong statement’. It is so because a ‘false statement’ denotes a deliberate intention in making such statement; in other words, it is a wrongful or erroneous statement made intentionally to gain an undue advantage. Thus, the basic premise on which the Court proceeded to direct a complaint to be filed is erroneous and it does not satisfy the necessary threshold. It is, therefore, clear that no prima facie satisfaction was recorded by the Court that ‘false statements’ were made by the defendant and his learned counsel in the memorandum of appeal and in the application for stay, warranting initiation of proceedings for the offence punishable under Sections 193, 199 and 200 of the Penal Code.
From Para 12,
12. It is also pertinent to note that the Court failed to record its satisfaction that it was expedient in the interest of justice that an inquiry should be made into the alleged offence in view of such statements. Without recording any satisfaction that it was indeed expedient in the interest of justice to hold an enquiry, such a direction was issued. Section 340 (1) of the Cr.P.C. mandates that a Court before directing an inquiry to be made into any offence referred to in Section 195 (1) (b) of the Penal Code, it should form an opinion that it is expedient in the interests of justice that such inquiry is in fact necessary. This would indicate that on the mere making of a ‘wrong statement’, an inquiry cannot be ordered. The forming of an opinion by the Court that holding of an inquiry is in fact expedient in the interests of justice is also a must. Ordering an inquiry without formation of any opinion as required by Section 340 (1) of the Cr.P.C. would render the order bad in law being not in accordance with the mandate of Section 340 (1).
From Para 13,
13. The High Court in the appeal preferred by the appellants challenging the order directing initiation of criminal proceedings proceeded to record its satisfaction that the appellants had filed a false affidavit in support of the application for stay. Such prima facie finding not having been recorded by the court of first instance, the High Court in the appeal preferred by the appellants challenging that order could not have recorded such finding, especially when the plaintiffs had not challenged the said order. The appellants could not have been placed in a worse position by preferring an appeal. The court of first instance having prima facie found that it was a case of making ‘wrong statements’, the High Court went on to record a finding that the appellants had in fact filed a false affidavit. Further, the High Court also recorded a finding as to the expediency of filing a complaint in the interests of justice. This finding was absent in the original order. The High Court has, thus, proceeded to improve the impugned order in an appeal preferred by the appellants, who were in fact aggrieved by the same. Such course is not permissible in law.
From Para 14,
14. We may also note that the application under Section 340 of the Cr.P.C. came to be filed by the plaintiffs on 27.04.2005. Much prior thereto, on 20.09.2004 the defendant through his learned counsel moved an application seeking correction of the typing mistakes in the memorandum of appeal as well as the application for stay.
From Para 17,
17. Before parting, it may be noted that the Constitution Bench in Iqbal Singh Marwah and another (supra) was of the view that a direction for filing of a complaint normally ought not to be made during the pendency of the substantive proceedings before the Court but only when the proceedings conclude and the final judgment is rendered.The object is clear inasmuch as the main proceedings ought to be proceeded with and decided instead of diverting them with the aid of Section 340 of the Cr.P.C. It is noticed that at times, the aid of Section 340 of the Cr.P.C. is sought to be taken merely to delay the adjudication of the substantive proceedings, as also in the present case. The dictum of the Constitution Bench, thus, ought to be borne in mind by the Courts.
16. A perusal of the above clearly indicates that the parties have not resided in Delhi at any given point in time during the alleged incidents for the cause of action to arise in the present jurisdiction. Thus, to state that due to the registration of marriage in New Delhi, the courts of Delhi would have jurisdiction to adjudicate the disputes of domestic violence between the present parties. There is no cause of action that arose within the local limits of the Courts of Delhi.
