JUDGMENT :

(Augustine George Masih, J.)

By this order, we propose to decide above-referred to two petitions, wherein the challenge is to the order passed by the trial Court on an application under Section 340 Cr.P.C. read with Section 195(1)(b) Cr.P.C. for initiating proceedings against the petitioners.

2. Primarily, the reason for initiation of such proceedings is based upon the conclusion drawn by the Court that the petitioners, who were witnesses in the trial, had not supported the prosecution case. Previously, during the investigation, they had stated a different version by involving all the accused persons in the crime but when they appeared in the witness-box and deposed on oath, they had totally resiled from their earlier version with a mala-fide intention to save the accused from the rigors of law. Referring them prima-facie guilty of giving false evidence on oath with a mala-fide intention to screen the accused when they are supposed to speak the truth, which they had disclosed during investigation while recording their statements under Section 161 Cr.P.C.. Vide the impugned order, which is under challenge, the Court had come to a conclusion and ordered that instead of the petitioners being taken to task under the summary proceedings under Section 344 Cr.P.C., it was a fit case where they were required to be prosecuted by way of regular trial. The Court had opined that a separate complaint, as contemplated by Section 195(1) Cr.P.C. read with Section 340 Cr.P.C. and sub-section (1), be filed in the Court of the Chief Judicial Magistrate, Hisar, for taking cognizance against the petitioners and take action against them as per the provisions of Section 343 Cr.P.C. by treating it as a State case to be conducted by the Public Prosecutor.

3. Learned senior counsel for the petitioners has attacked the impugned orders by asserting that a mandatory procedure, as laid down under Section 340 Cr.P.C., has not been complied with. He has asserted that the Court to formulate its opinion, is mandated to hold a preliminary enquiry, which has not been so done in the present case before proceeding in the matter. Apart from that, it is asserted by him that prior to initiating the proceedings and taking a decision by passing the impugned order, no notice was issued to the petitioners, thus, violating the principles of audi alteram partem. Non-application of mind by the Court is also asserted by referring to the order of conviction passed by the trial Court while convicting the accused whereas while dealing with the statements given by the petitioners in Court as prosecution witnesses, an opinion was expressed by the trial Court, which has been verbatim used in the present impugned order showing total non-application of independent mind and, therefore, there is no question of another opinion having been formed. On this basis, learned senior counsel for the petitioners has asserted that the impugned order, as passed by the Court below, cannot sustain and deserves to be set aside.

4. Learned counsel for the State, on the other hand, has contended that the Constitution Bench judgment of the Hon'ble Supreme Court in Iqbal Singh Marwah & Anr. vs. Meenakshi Marwah & Anr., 2005(2) RCR (Criminal) 178, while dealing with the aspect of holding an enquiry under the provisions of Section 340 Cr.P.C., has held that the opinion can be formed by the Court even without conducting a preliminary enquiry, if the formation of an opinion is otherwise possible. She further contends that the Hon'ble Supreme Court has held that no hearing is required to be provided to a person, against whom proceedings under Section 340 Cr.P.C. read with Section 195 Cr.P.C. are to be initiated. Reliance has also been placed upon a judgment of the Hon'ble Supreme Court in Pritish vs. State of Maharashtra , 2002(1) SCC 253 , which judgment and the opinion expressed in the said judgment has been upheld by the Constitution Bench, to support her contention.

5. Referring to the impu