Thursday 22 September 2022

Whether it is necessary to hear accused in preliminary inquiry U/S 340 of CRPC?

 We have little doubt that there is no

question of opportunity of hearing in a scenario of

this nature and we say nothing else but that a law

as enunciated by the Constitution Bench in Iqbal

Singh Marwah’s case (supra) is in line with what was

observed in Pritish’case (supra).





Dated: SEPTEMBER 15, 2022.

The matter has been placed before a three

Judges Bench arising from a reference made vide

order dated 26.02.2020 seeking the following

questions to be answered:

“(i) Whether Section 340 of the

Code of Criminal Procedure, 1973

mandates a preliminary inquiry and an

opportunity of hearing to the would-be

accused before a complaint is made under

Section 195 of the Code by a Court?

(ii) what is the scope and ambit of

such preliminary inquiry?”

The impugned judgment of the High Court

granting relief to the respondent while dealing

with an aspect of forgery in a civil case is

predicated on a reasoning that the FIR which was

registered against the respondent-accused did not

comply with the mandatory requirements of Section

340 read with Section 195 of the Cr.P.C.

The FIR had given rise to the provisions

since it had been filed without any inquiry and

without giving any opportunity to the respondent

to be heard.

The two Judges Bench of this Court noticing

the aforesaid aspect, in order dated 26.02.2020

referred to two judgments of this Court both of

three Judges Bench as also to a Constitution Bench

of this Court.

To put the aspect in the right perspective

and in sequence, we may note that the first

judgment of three Judges Bench was Pritish vs.

State of Maharashtra & Ors.1(2002) 1 SCC 253

 which noticed thatthe purpose of a preliminary 

inquiry under Section

340(1), Cr.P.C. was not to find whether a person

is guilty or not but only to decide whether it

was expedient in the interest of justice to

inquire into the offence. It was thus observed

that the Court is not obliged to make a

preliminary inquiry on a complaint but if the

Court decides to do so, it should make a final set

of the facts which is expedient in the interest

of justice that offence should be further probed


The reference order is a conflicting view

in Sharad Pawar vs. Jagmohan Dalmiya & Ors.2 to the

extent that in para 7 while noticing the submissions

of the counsels it was observed that it was necessary

to conduct a preliminary inquiry as contemplated

under Section 340 Cr.P.C. and “also to afford an

opportunity of being heard to the defendants, which

was admittedly not done.“ The latter was stated to

be contrary to the view in Pritish’s case (supra).

The reference order also simultaneously

noted the observations in the Constitution Bench of

this Court in Iqbal Singh Marwah vs. Meenakshi

Marwah3 which was post the judgment in Pritish’s

case (supra) but prior to the judgment in Sharad

Pawar’s case (supra). In this behalf the extracted

portion in 23 of the judgment reads as under :

“In view of the language used

in Section 340 Cr.P.C. the Court is

not bound to make a complaint

regarding commission of an offence

referred to in Section 195(1)(b),

as the Section is conditioned by

the words "Court is of opinion that

it is expedient in the interest of

justice." This shows that such a

course will be adopted only if the

interest of justice requires and

not in every case. Before filing of

the complaint, the Court may hold a

preliminary enquiry and record a

2(2010) 15 SCC 290

3(2005) 4 SCC 370

finding to the effect that it is

expedient in the interests of

justice that enquiry should be made

into any of the offences referred

to in Section 195(i)(b). This

expediency will normally be judged

by the Court by weighing not the

magnitude of injury suffered by the

person affected by such forgery or

forged document, but having regard

to the effect or impact, such

commission of offence has upon

administration of justice. It is

possible that such forged document

or forgery may cause a very serious

or substantial injury to a person

in the sense that it may deprive

him of a very valuable property or

status or the like, but such

document may be just a piece of

evidence produced or given in

evidence in Court, where voluminous

evidence may have been adduced and

the effect of such piece of

evidence on the broad concept of

administration of justice may be

minimal. In such circumstances, the

Court may not consider it expedient

in the interest of justice to make

a complaint.

Emphasis supplied”

On having considered the matter, it is our view

that the Constitution Bench’s view would naturally

prevails that makes the legal position quite

abundantly clear. Not only that, if we may notice,

what is reported in Sharad Pawar’s case (supra)

is only an order and not a judgment. An order is in

the given factual scenario. The judgment lays down

the principles of law. The scenario is that any

order or judgment passed by this Court becomes a

reportable exercise to create more volumes of

reported cases! This thus has a possibility at

times of causing some confusion on the legal

principles prevalent. The observations in the

quoted paragraph extracted aforesaid apparently came

out of the flow of the order rather than pronouncing

any principles of law and that is why the Bench

itself categorized what is observed as an order i.e,

in the given factual scenario.

We have little doubt that there is no

question of opportunity of hearing in a scenario of

this nature and we say nothing else but that a law

as enunciated by the Constitution Bench in Iqbal

Singh Marwah’s case (supra) is in line with what was

observed in Pritish’case (supra).

Interestingly both the judgments in

Pritish’s case and the Constitution Bench judgment

in Iqbal Singh Marwah’s case (supra) have not been

noted in order passed in Sharad Pawar’s Case (supra).

The answer thus to the first question raised would be

in the negative.

Insofar as the second question is concerned,

the scope and ambit of such a preliminary inquiry,

also stands resolved in terms of the Constitution

Bench judgment of this Court in the Iqbal Singh

Marwah’s case (supra) as referred to aforesaid.

The reference is answered accordingly.

The matter be placed before the regular

Bench for consideration on merits.








SEPTEMBER 15, 2022.

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