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MOUSHUMI BHATTACHARYA
Al Amin Garments Haat Pvt. Ltd. – Appellant
Versus
Jitendra Jain – Respondent
What is the right of a proposed accused at the stage of inquiry under section 340(1) of the CrPC?
Key Points: - The proposed accused do not have a right to be heard at the stage of inquiry under section 340(1) of the CrPC (!) (!) . - The Court held that the proposed accused do not have a right to be heard at the stage of inquiry under section 340(1) of the CrPC (!) (!) . - Section 340(1) of the CrPC does not contemplate deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate (!) . - The preliminary inquiry contemplated in section 340(1) is not for finding of guilt or innocence of the particular person but only for deciding whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed (!) . - The Supreme Court's decision in Pritish vs. State of Maharashtra established that there is no statutory requirement to afford an opportunity of hearing to persons against whom the Court might make a complaint (!) . - The ratio of Pritish is that the person against whom a complaint is made has a legal right to be heard only when the Magistrate calls the accused to appear before him (!) . - The decision in Pritish was affirmed by a larger Bench in State of Punjab vs. Jasbir Singh (!) . - The principles of natural justice are preserved in the proceedings before the Magistrate where the proposed accused has full opportunity to disprove the charges/allegations against him/her (!) . - The Court proposed to hear the petitioner and dispose of the application in accordance with the mandate of section 340(1) of the CrPC (!) . - The respondents do not have a right to be heard in this application (!) .
JUDGMENT :
Moushumi Bhattacharya, J.
1. The petitioner has taken out an application under section 340 of The Code of Criminal Procedure, 1973 for a preliminary enquiry into the alleged fraudulent and illegal acts of the respondents in connection with AP 124 of 2023. AP 124 of 2023 was filed under section 11(6) of The Arbitration and Conciliation Act, 1996 for appointment of arbitrator.
2. The only point which falls for adjudication is whether the respondents have a right to be heard in the proceedings.
3. Learned counsel appearing for the respondents urges, with considerable vehemence and industry that the proceedings under section 340 of the CrPC allows an opportunity of hearing to the proposed accused and places emphasis on the words used in the said provision. According to counsel, the word “inquiry” in section 340(1) contemplates intervention by the Court and hence envisages that the proposed accused be heard before an inquiry is ordered into the offence referred to in section 195(1)(b) of the CrPC.
4. Learned counsel appearing for the petitioner, on the other hand, relies on several decisions of the Supreme Court including that of Pritish vs. State of Maharashtra; (2002) 1 SCC
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