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).
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 335/2020
THE STATE OF PUNJAB Vs JASBIR SINGH
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
into.
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.
....................J.
[SANJAY KISHAN KAUL]
....................J.
[ABHAY S. OKA]
....................J.
[VIKRAM NATH]
NEW DELHI,
SEPTEMBER 15, 2022.
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