ORDER :

1. In the present petition, the petitioner has challenged the order passed by the learned Additional Sessions Judge FTSC (POCSO) Korba, District Korba (C.G.) in Special Criminal Case (POCSO) No. 13/2020 (State Vs. Vinod Chouhan) whereby an application moved by the petitioner/State under Section 340 of Cr.P.C. has been rejected.

2. Facts of the present case are that the respondent/accused was being prosecuted for the commission of offences punishable under Sections 363, 366, 376(2) of IPC and Section 6 of POCSO Act, 2012 in connection with Crime No. 24/2023 registered at Police Station-City Kotwali, District Korba (C.G.).

3. It appears that the victim and her mother were examined as witnesses before the court below and they deposed contradictory statements in the judicial proceeding. Therefore, the Special Public Prosecutor moved an application before the court below to take cognizance of the matter under Sections 340 and 344 of Cr.P.C. against the victim and her mother. Learned trial court after hearing the Special Public Prosecutor vide order dated 22.11.2022 placing reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Amarsang Nathji Versus Hardik Karshadbhai Patel & others, (2017) 1 SCC 113 rejected the application imposing cost of Rs. 10,000/- on the ground that, the mere fact that a person has made a contradictory statement in a judicial proceeding is not by itself always sufficient to justify a prosecution under Sections 199 and 200 of IPC.

4. Learned counsel for the petitioner would submit that the victim and her mother made contradictory statements under Sections 161 and 164 of Cr.P.C. He would further submit that Section 340 of Cr.P.C. provides that an inquiry should be conducted by the concerned court according to the provisions of Section 195 of the IPC. He would also submit that the court below rejected the application without conducting any preliminary inquiry. In support of his argument, he has placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of State of Punjab v. Jasbir Singh passed in Criminal Appeal No. 335/2020 whereby the Hon’ble Supreme Court framed the following questions:

“(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?”

5. The Hon’ble Supreme Court answered the first question in the negative and it was further held that the answer to the second question revolves around the constitutional bench judgment rendered in the matter of Iqbal Singh Marwah v. Meenakshi Marwah where it was observed that before filing the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interest of justice that enquiry should be made into any of the offences referred to in Section 195 (i)(b).

6. I have heard learned counsel appearing for the petitioner and perused the order impugned, provisions of the law and the aforesaid judgments rendered by the Hon’ble Supreme Court.

7. In the present case, the respondent/accused was being tried for the commission of offences punishable under Sections 363, 366, 376(2) of IPC and Section 6 of the POCSO Act, 2012. The statement under Sections 161 and 164 was recorded and during the judicial proceedings the victim and her mother deviated from their statements recorded earlier and there were certain contradictions, therefore, an application was moved by the Special Public Prosecutor under Sections 340 and 344 of Cr.P.C. for taking action against them.

8. The Hon’ble Supreme Court in the matter of Amarsang Nathji (supra) in para 6 has observed that “if a person has made contradictory statement in a judicial proceeding, mere this fact is not by itself always sufficient to justify the prosecution under Sections 199 and 200 of IPC; but it must be shown th