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)

Judgement Key Points

The legal document discusses the procedural aspects related to preliminary inquiries and the initiation of criminal proceedings under the Criminal Procedure Code, particularly sections 340 to 344. It emphasizes that the core purpose of a preliminary inquiry is for the court to form an opinion on whether it is expedient in the interest of justice to conduct a full investigation into an offense that appears to have been committed (!) (!) .

Importantly, the document clarifies that such preliminary inquiries are not intended for determining the guilt or innocence of any individual. The court has the discretion to hold a preliminary inquiry if it deems necessary, but it is not mandatory to do so (!) (!) . The formation of the court’s opinion can occur even without a preliminary inquiry if the circumstances clearly suggest that an offense has been committed in relation to the proceeding (!) .

Furthermore, the document states that once the court forms an opinion that an inquiry is warranted, it may make a formal complaint in writing and send it to the appropriate magistrate for further action. This process is designed to be a procedural safeguard rather than a mandatory step, and the absence of a preliminary inquiry does not invalidate the subsequent proceedings (!) (!) .

Regarding the rights of the accused, the scheme of the law provides that they have a right to be heard when the complaint is taken up for formal proceedings before the magistrate, but this right is generally invoked during the trial stage rather than at the preliminary inquiry stage (!) (!) . The document also highlights that the provision for appeal exists for parties aggrieved by the court’s decision to proceed with a complaint, but this does not impose an obligation on the court to afford a hearing during the preliminary inquiry itself (!) .

Finally, the document affirms that principles of natural justice, such as the right to be heard, are protected during the subsequent stages of prosecution once proceedings are initiated, but they are not necessarily applicable during the initial stages of a preliminary inquiry or when the court is merely forming an opinion about the expediency of further investigation (!) (!) .

In conclusion, the procedural safeguards and rights of the accused are primarily relevant at the stage of formal prosecution and trial, rather than during the preliminary inquiry phase, which is primarily an investigatory and procedural step for the court to determine whether further inquiry is justified (!) .

JUDGMENT

Thomas, J.-Leave granted.

Appellant who scored substantially in a land acquisition proceeding is now facing rough weather as he is arraigned in a criminal proceeding on account of certain documents he produced as evidence. The court which granted a quantum leap in awarding compensation to the land owners later found that they had used forged documents for inveigling such a bumper gain as compensation and hence the court ordered some of the claimants to face prosecution proceedings in a criminal court. The only point now convassed by the appellant is that the court should have heard the appellant before ordering such prosecution. The said plea raised by the appellant before the High Court was repelled as per the impugned judgment. Hence this appeal by special leave.

2. An area of 3.9 acres of land was acquired by the State Government for construction of a canal under Arunwati Project in 1985. The land acquisition officer awarded a total of Rs. 24,000/- as compensation for the entire land. As the owners were not satisfied with the said award they moved for a reference under Section 18 of the Land Acquisition Act. The reference court (which is a civil court) on the basis of evidence adduced by the parties made a big leap by enhancing the compensation amount from Rupees twenty four thousand to Rupees ten lakhs thirty thousand, besides the other benefits such as solatium, additional compensation and interest as provided in Section 23 of the Land Acquisition Act. The reference court passed the award granting the said enhancement on 23.4.1993. Appellant was one of the beneficiaries of the said award and the enhancement was made on the basis of the evidence adduced by the parties including the appellant. Though the claimants expressed dissatisfaction even with such enhancement and moved the High Court for further enhancement the High Court dismissed the appeal filed by them in 1993.

3. In 1995, some persons of the locality brought to the notice of the reference court that the claimants had wangled a whopping enhancement after playing chicanery on the court by producing forged copies of sale deeds for supporting their claim for enhancement. The documents marked by the reference court as Exts. 31, 32 and 35 were fabricated copies of sale deeds in which the extent of the lands sold had been shown as far less than the real area transferred as per the instruments of sale, according to those persons.

4. The reference court conducted an inquiry on being told by the aforesaid applicants that the above mentioned documents are forged. The court got down the relevant records from the Sub-Registry for the purpose of examining the correctness of the aforesaid three documents and found that they were fabricated copies of the original sale deeds. The said court further found that appellant and one Rajkumar Anandrao Gulhane have committed offences affecting the administration of justice by using forged documents. The court then passed the following order:

"Therefore, it is expedient in the ends of justice on my part of file the complaint in writing against them before Judicial Magistrate of First Class having jurisdiction to take appropriate and proper criminal action against them, as it appears that they have not only cheated the public at large and government but have misguided or tried to misguide my learned predecessor by preparing and producing false documentary evidence as well as by giving false oral evidence just to have a wrongful gain."

5. The persons who moved the court for taking action under Section 340 of the Code of Criminal Procedure (for short the Code ) by bringing the above facts to the notice of the reference court were not satisfied as they felt that the other persons who also secured the advantage of such enhancement were also to be proceeded against. So they filed an appeal before the District Court. On 12.8.1996 the District Judge concerned ordered that the complaint shall be filed against five more persons besid

Click Here to Read the rest of this document

2001 Supreme(SC) 1598

IMPORTANT POINTThe 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.

Cases Referred (2)

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.