2002(1) Crimes 180 (SC)
Supreme Court of India
(From Bombay High Court)
K.T. Thomas, S.N. Phukan and Y.K. Sabharwal, JJ.
Pritish —Appellant
versus
State of Maharashtra & Ors. —Respondents
Criminal Appeal No. 1188 of 2001
(Arising out of SLP (Crl.) No. 1856 of 2001)
Decided on 21-11-2001
Counsel for the Parties :
For the Appellant : V.A. Mohta, Sr. Advocate, Arun S. Agrawal and Nikhil Nayyar, Advocates.
For the Respondents : Dr. R.B. Masoodkar, S.S. Shinde and S.V. Deshpande, Advocates.

Important Point
The person against whom proceedings were initiated u/s. 340(1) Cr.P.C. 1973 has no right of an opportunity of being heard to participate in the preliminary enquiry.

Headnote:(i) Criminal Procedure Code, 1973—Ch. XXVI—As to offences affec­ting the administration of ­Justice—Sections 340(i)—Formation of an opinion by the Court that an enquiry should be made into an ­offence which appears to have been committed—Is it necessary to conduct a preliminary enquiry to reach such a finding—Purpose of preliminary ­enquiry.

       Held : Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not preemptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed. (Para 8)

       (ii) Criminal Procedure Code, 1973—Section 2(g)—Meaning of enquiry—Refers to pre-trial enquiry by Magistrate—Offences affecting administration of justice—Fall under warrant case as defined in Section 2(x)—Procedure of warrant case in Ch. XIX—Complaint u/s. 340 to be treated as a case instituted on a police report—Procedure under Sections 238 to 243 of Cr.P.C. to be followed—Effect—Person against whom complaint is made has a legal right to be heard —Effect of right of appeal u/s. 341 Cr.P.C.

       Held : The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person aggrieved by the order, is indicative of his right to participate in such preliminary inquiry. (Para 12)

       Held also : But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused. (Para 13)

       (iii) Land Acquisition Act, 1894—Section 18—Reference Court awarding huge compensation on forged sale deed’s copy produced by appellant—Later perjury brought to its notice —Complaint sent to Magistrate u/s. 340 Cr.P.C.—Appellant’s grievance that he was not heard during the preliminary enquiry conducted by the reference court u/s. 340 Cr.P.C.—High Court rejecting it—Whether ­correct? (Yes)— Appeal dismissed—AIR 1954 SC 397 relied on, AIR 1970 A.P. 119 overruled. AIR 1985 Cr.L.J. 420 approved.

       Held : Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such person should be proceeded against or not. Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. (Paras 14 & 15)

       Held finally : We therefore agree with the impugned judgment that appellant cannot complain that he was not heard during the preliminary inquiry conducted by the reference court under Section 340 of the Code. In the result we dismiss this appeal. (Para 18)