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High Court Of Calcutta
Bhaskar Bhattacharya, Pravendu Narayan Sinha
SUBIR KUMAR GHOSH - Appellant
Versus
PRASAR BHARATI BROAD CASTING CORPORATION OF INDIA - Respondent
A. P. O. 477 Of 2003
Decided On : 04/24/2006
LETTERS PATENT APPEAL - MAINTAINABILITY - ORDER UNDER SECTION 340 OF CRIMINAL PROCEDURE CODE - SECTION 341 OF CRIMINAL PROCEDURE CODE - SECTION 5 OF CRIMINAL PROCEDURE CODE - SPECIFIC RELIEF ACT, SECTION 6 - LETTERS PATENT - SPECIAL OR LOCAL LAW - PRELIMINARY ENQUIRY - DELEGATION OF POWER - SECTION 195(1) OF CRIMINAL PROCEDURE CODE - INTEREST OF JUSTICE - SECTION 340 OF CRIMINAL PROCEDURE CODE - LODGING OF COMPLAINT - FAILURE OF JUSTICE - PREVENTION OF CORRUPTION ACT, 1988, SECTION 19(3)(A) - A Division Bench of the Calcutta High Court has held that a Letters Patent appeal is maintainable against an order passed under section 340 of the Code of Criminal Procedure by a learned Judge of a High Court, overruling an earlier Division Bench decision of the same court.
Fact of the Case:
The appellant, a writ petitioner, filed various writ applications before the Calcutta High Court, including one claiming a compensation of Rs. 10 crore. The respondents filed an application under section 340 of the Code of Criminal Procedure alleging that the appellant made various false statements and relied upon fabricated documents and letters to induce the Writ Court to have an order in his favor. A learned Judge of the High Court directed the Registrar, Original Side of the Court to enquire into the allegations and lodge a complaint before the Chief Metropolitan Magistrate, Calcutta, if on such enquiry, just reason was found for lodging such complaint.
Finding of the Court:
The High Court held that the order passed by the learned Single Judge was not in conformity with the provisions contained in section 340 of the Code of Criminal Procedure, as the power of preliminary enquiry mentioned in the said section cannot be delegated to any other person by the Judge before whom the offences mentioned in that section had been allegedly committed. The court further held that before a direction is given to lodge a complaint under the said section, it is for that Court to arrive at the conclusion after preliminary enquiry, if any, whether the allegations have prima facie substance and whether it is expedient in the interest of justice to lodge a complaint in order to probe into the allegations and recording of such satisfaction by the Court is imperative.
Issues: 1. Whether a Letters Patent appeal is maintainable against an order passed under section 340 of the Code of Criminal Procedure by a learned Judge of a High Court? 2. Whether the power of preliminary enquiry mentioned in section 340 of the Code of Criminal Procedure can be delegated to any other person by the Judge before whom the offences mentioned in that section had been allegedly committed? 3. Whether it is for the Court to arrive at the conclusion after preliminary enquiry, if any, whether the allegations have prima facie substance and whether it is expedient in the interest of justice to lodge a complaint in order to probe into the allegations?
Ratio Decidendi: 1. A Letters Patent appeal is maintainable against an order passed under section 340 of the Code of Criminal Procedure by a learned Judge of a High Court, as the provisions of the Letters Patent must be held to be an existing special or local law within the meaning of section 5 of the Code of Criminal Procedure. 2. The power of preliminary enquiry mentioned in section 340 of the Code of Criminal Procedure cannot be delegated to any other person by the Judge before whom the offences mentioned in that section had been allegedly committed. 3. It is for the Court to arrive at the conclusion after preliminary enquiry, if any, whether the allegations have prima facie substance and whether it is expedient in the interest of justice to lodge a complaint in order to probe into the allegations.
Final Decision: The High Court set aside the order passed by the learned Single Judge and remanded the matter back to the learned Trial Judge for considering whether it is expedient in the interest of justice to lodge a complaint in terms of section 340 of the Code without delegating the enquiry to any other person.
( 1 ) THIS appeal is at the instance of a writ petitioner and is directed against the order dated 22nd May, 2003 passed by a learned Judge of this Court thereby disposing of an application under section 340 of the Code of Criminal Procedure by directing the Registrar, Original Side of this Court to enquire into the allegations made by the respondent as regards the alleged offence committed by the appellant under section 196 of the Indian penal Code with further direction to lodge complaint before the Chief Metropolitan Magistrate, Calcutta, if on such enquiry, just reason was found for lodging such complaint.
( 2 ) THE present appellant filed various writ applications before this Court including the one, being W. P. No. 1510 (W) of 1999, claiming a compensation of rs. 10 crore. The said writ application was disposed of on October 4, 1999. The respondents herein, subsequently, filed an application under section 340 of the code of Criminal Procedure before the learned Single Judge alleging that the present appellant made various false statements and relied upon fabricated documents and letters with a view to induce the Writ Court to have an order in his favour.
( 3 ) SUCH application was opposed by the present appellant and ultimetely, a learned Judge of this Court after considering the respective submissions of the parties made the following observation :"i have heard the learned Advocates for the parties. I have perused the records and I am of the opinion that the allegations which have been made by Mr. Sarkar's client in this application, are serious in nature, and those have to be investigated properly. An ad interim order was passed in terms of Prayer (d)and the Registrar, Original Side was directed to keep the said original writ petition W. P. No. 1510 (W) of 1999 in the safe custody. After analysing the facts it would be proper for me to pass an order in terms of Prayer (a) of this application and with a direction to complete the enquiry by the Registrar, original Side within a period of a month from date and on enquiry if it appears that there are reasons to lodge a complaint against the writ petitioner/respondent (Dr. Subir Kumar Ghosh) before the Chief Metropolitan magistrate, Calcutta. Registrar, Original Side is directed to lodge a complaint accordingly before the said learned Magistrate. Accordingly, there will be an order in terms of Prayers (a) and (b) and the interim order already passed in this
matter stands confirmed. "
( 4 ) BEING dissatisfied, the writ petitioner has come up with the present appeal.
( 5 ) MR. Basu, the learned Advocate appearing on behalf of the respondent, has taken a preliminary objection as to the maintainability of the present Letters patent appeal against the order disposing of application under section 340 of the Code of Criminal Procedure. According to Mr. Basu, if an order under section 340 of the Code is passed by a learned Judge of a High Court, in view of clear provision contained in section 341 of the Code, an appeal against such order is specifically barred and as such, the present Letters Patent appeal against the order of the learned Single Judge disposing of an application under section 340 of the Code is not maintainable.
( 6 ) IN support of such contention Mr. Basu has placed strong reliance upon a decision of the Division Bench of this Court in the case of Pashupati Nath De vs. Murari Mohan De, reported in 81 CWN 762.
( 7 ) BEFORE entering into the merit of the appeal, we propose to dispose of the aforesaid preliminary objection raised by Mr. Basu.
( 8 ) IT is true that a Division Bench of this Court in the case of Pashupati nath De vs. Murari Mohan (supra), came to the conclusion that section 341 of the Code of Criminal Procedure having prohibited filing of an appeal against an order passed under section 340 of the Code if such an order is passed by a judge of the High Court, even a Letters Patent appeal before a Division Bench of this Court
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