NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.335 OF 2020

THE STATE OF PUNJAB     ...APPELLANT  

VERSUS

JASBIR SINGH     …RESPONDENT

J U D G M E N T    

MOHAN M. SHANTANAGOUDAR, J.

1. The judgment dated 22.01.2019 passed by the High

Court  of  Punjab  and  Haryana  at  Chandigarh  in  CRM-M  No.

24691/2009 (O&M), which quashed FIR No. 74 dated 13.4.2008

registered  against  the  Respondent  herein  for  the  offences

punishable under Sections 420, 467, 468 and 471 of the Indian

Penal Code, 1860 (“IPC”), has been called into question in this

appeal.

2. The  First  Information  Report  (“FIR”)  against  the

Respondent was registered under Sections 420, 467, 468 and

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471  of  the  IPC  on  the  allegation  that  he  had  forged  and

fabricated  documents  submitted  in  the  course  of  legal

proceedings before the Revenue Courts. The relevant facts for

the purpose of the present appeal are as follows:

2.1 The Respondent’s mother, Karamjit Kaur, had filed an

application in Tehsil Patti, District Tarn Taran seeking transfer

of the subject property in her name on the basis of possession.

Vide order dated 28.06.2002, the Tehsildar (Sales) allowed this

application,  directing conveyance in  favour  of  Karamjit  Kaur.

Meanwhile,  in the year 2005, the Respondent filed a suit for

declaration that the subject property was owned by him, which

is still pending.  

2.2 Later,  in  the  year  2006,  the  Respondent  filed  an

appeal against the order of the Tehsildar (Sales), claiming that

such  order  was  based  on  an  incorrect  finding  that  the

application was filed only by his mother, while it had actually

been made jointly.  

2.3 Furthermore,  in  parallel  mutation  proceedings,  the

Respondent got the subject land mutated in his favour along

with his two cousins. In appeal, the Sub-Divisional Magistrate-

cum-Collector,  Patti  declared the mutation as contested,  and

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vide  order  dated  11.12.2006,  mutation  was  sanctioned  in

favour of Tarjit Kaur, the elder sister-in-law of the Respondent.

The appeal  filed  by  the  Respondent  against  such  order  was

dismissed vide order dated 06.06.2007.

2.4 On  29.08.2007,  the  SDM-cum-Sales  Commissioner,

Patti  set  aside  the  order  of  the  Tehsildar  (Sales)  dated

28.06.2002,  directing  that  the  transfer  of  land  be  entered

jointly in the names of the Respondent and his mother.  This

was done on the basis of a report submitted by the Tehsildar,

Patti stating that the initial application for transfer of land had

been made jointly by these two persons. In appeal, the Deputy

Commissioner-cum-Chief  Sales  Commissioner,  Tarn  Taran

restored  the  initial  order  dated  28.06.2002  passed  by  the

Tehsildar  (Sales),  noting that  the Respondent  had submitted

forged and fabricated documents in connivance with the Tehsil

staff in  the appeal  before the SDM-cum-Sales Commissioner.

Thus, the order dated 29.08.2007 was set aside and a direction

was  issued  to  the  Sub-Divisional  Magistrate,  Patti  to

immediately get an FIR registered against the Respondent.  

2.5 In  pursuance  of  the  said  order,  the  Sub-Divisional

Magistrate, Patti addressed a communication dated 11.04.2008

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to the SHO, Police Station, Patti on the basis of which the FIR in

question  was  registered  against  the  Respondent.  The  trial

commenced after the filing of the chargesheet. During the trial,

a petition was filed by the Respondent under Section 482 of the

Code of Criminal Procedure, 1973 (“CrPC”) seeking quashing of

the proceedings, which has been allowed vide the impugned

order.

3. The High Court,  while passing the impugned order,

principally accepted the ground raised by the Respondent that

the  Deputy  Commissioner-cum-Chief  Sales  Commissioner

hearing  the  appeal  had neither  held  an  inquiry,  nor  had he

directed  the  subordinate  authority  to  hold  any  such  inquiry

against the accused, in terms of Section 340 read with Section

195 of the CrPC. Thus, it was held that the FIR was hit by these

provisions,  since  it  had  been  filed  without  any  inquiry  and

without giving any opportunity to the Respondent to be heard,

and was therefore liable to be quashed.

4. Heard learned Counsel for the parties.  

5. Ms. Uttara Babbar, learned counsel appearing for the

State has taken us through the material on record, and referred

us to the provisions of Section 195 and Section 340 of the CrPC

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to contend that it is not mandatory on the part of the Court to

make a preliminary inquiry under Section 340 before filing a

complaint under Section 195; the Court is not required to afford

an  opportunity  of  hearing  to  the  person  against  whom  a

complaint  is  filed  before  the  Magistrate  for  initiating

prosecution  proceedings;  and  that  Section  340  does  not

indicate that such person has any right to participate in the

preliminary inquiry. In support of these contentions, she relied

upon  the  judgments  in  Pritish  v. State  of  Maharashtra,

(2002)  1  SCC  253,  decided  by  a  three-Judge  Bench  of  this

Court,  and  of  a  two-Judge  Bench  in  Amarsang  Nathaji  v.

Hardik Harshadbhai Patel, (2017) 1 SCC 113. Also drawing

our attention to the another judgment decided by a three-Judge

Bench of this Court in Sharad Pawar v. Jagmohan Dalmiya,

(2010) 15 SCC 290, she submitted that no dictum can be said

to  be  have  been  laid  down  in  the  said  judgment  as  it  was

passed sub silentio, having assigned no reasons to come to the

conclusion  that  a  preliminary  inquiry  is  mandatory  under

Section 340, contrary to the dictum of Pritish (supra).  

6. Per  contra,  learned  counsel  for  the  Respondent

argued in support of the judgment of the High Court.

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7. In view of the arguments advanced and the material

on record, the only question to be considered in this matter is

as under:

Whether the Court should have heard the Respondent and

given him an opportunity to have a say in the matter before

ordering prosecution under Section 195 of the CrPC?

8. In this regard, it is pertinent to note Section 195(1)(b)

(ii)  of  the  CrPC,  which  provides  that  no  Court  shall  take

cognizance of any offence mentioned therein, if committed  in

respect  of  a  document  produced  or  given  in  evidence  in  a

proceeding in any Court:

“195.  Prosecution  for  contempt  of  lawful authority  of  public  servants,  for  offences against public justice and for offences relating to documents given in evidence. (1) No Court shall take cognizance- … (b) …(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in  respect  of a document produced or given in evidence in a proceeding in any Court…”

9. We may also note that Section 195(3) of the CrPC

clarifies  that  the  term  “Court”  means  a  Civil,  Revenue  or

Criminal Court, and includes a tribunal constituted by or under

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a Central, Provincial or State Act, if declared by that Act to be a

Court for the purposes of the said section.  

10. In  the  instant  case,  it  is  not  in  dispute  that  the

Deputy Commissioner-cum-Chief  Sales Commissioner,  as well

as the Sales Commissioner, Patti were discharging their duties

as Revenue Courts. It is further not in dispute that the criminal

proceedings instituted against the Respondent fell  within the

scope of  Section  195(1)(b)(ii),  as  they  pertained  to  offences

under Sections 420, 467, 468 and 471 of the IPC. Essentially

then, the controversy pertains to compliance with Section 340

of  the  CrPC,  which  lays  down the  procedure  to  be  followed

while  making  a  complaint  with  respect  to  an  offence  as

mentioned in Section 195. In this regard, it may be useful to

note the wording of Section 340(1):

“(1)  When,  upon  an  application  made to  it  in  this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such  Court  may,  after  such  preliminary  inquiry,  if any, as it thinks necessary—

(a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having

jurisdiction;

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(d) take  sufficient  security  for  the  appearance  of the  accused  before  such  Magistrate,  or  if  the alleged  offence  is  non-bailable  and  the  Court thinks it necessary so to do, send the accused in custody to such Magistrate; and  

(e) bind  over  any  person  to  appear  and  give evidence before such Magistrate.”  

(emphasis supplied)

11. A  bare  reading  of  Section  340  reveals  that  if  the

Court is of the opinion that an inquiry should be made into any

offence referred to in clause (b) of sub-section (1) of Section

195, which appears to have been committed in, or in relation to

a proceeding in that Court or, as the case may be, in respect of

a  document  produced or  given in  evidence in  proceeding in

that Court, such Court may, after such preliminary inquiry, if

any, as it thinks necessary, record a finding to that effect and

thereafter make a complaint thereof in writing. Upon a plain

reading of this provision, it is clear that it is open for the Court

to conduct (or not to conduct) a preliminary inquiry into the

matter  before  lodging  a  complaint  in  respect  of  an  offence

mentioned in Section 195(1)(b).  

Indeed, a three-Judge Bench of this Court in  Pritish

(supra) dealing with the question in consideration here,  held

that an opportunity to the would-be accused before the filing of

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the  complaint  was  not  mandatory,  and  observed  that  the

preliminary  inquiry  was  itself  not  mandatory.  The  Court

observed thus:

“9. 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  peremptory  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.

10. “Inquiry” is defined in Section 2(g) of the Code as “every inquiry,  other  than a trial,  conducted under

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this Code by a Magistrate or court”. It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate. Once the court which forms an opinion, whether it is after conducting the preliminary inquiry or not, that it  is expedient  in  the  interest  of  justice  that  an  inquiry should be made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are all  falling within the purview of “warrant case” [as  defined  in  Section  2(x)]  of  the  Code  the Magistrate  concerned  has  to  follow  the  procedure prescribed in Chapter XIX of the Code. In this context we  may  point  out  that  Section  343  of  the  Code specifies that the Magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if  it  were instituted on a police report. That being the position, the Magistrate on receiving the  complaint  shall  proceed  under  Section  238  to Section 243 of the Code.

11. Section 238 of the Code says that the Magistrate shall at the outset satisfy himself  that copies of all the relevant documents have been supplied to the accused.  Section  239  enjoins  on  the  Magistrate  to consider the complaint and the documents sent with it.  He  may  also  make  such  examination  of  the accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are  groundless.  If  he  finds  the  allegations  to  be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the Magistrate is of opinion, in  the  aforesaid  inquiry,  that  there  is  ground  for presuming  that  the  accused  has  committed  the offence he has to frame a charge in writing against the  accused.  Such  charge  shall  then  be  read  and explained  to  the  accused  and  he  shall  be  asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial.  Until  then the inquiry continues before the Magistrate.

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12. Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is  envisaged  only  when  the  Magistrate  calls the accused to appear before him. The person concerned has  then  the  right  to  participate  in  the  pre-trial inquiry envisaged in Section 239 of the Code.  It  is open  to  him  to  satisfy  the  Magistrate  that  the allegations against him are groundless and that he is entitled to be discharged.

13. 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.

14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to  file  an appeal  to  the court  to  which the former court is subordinate.  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.  In  any  event  the  appellant  has already availed of the opportunity of the provisions of Section 341 of the Code by filing the appeal before the High Court as stated earlier.

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xxx

18. We are unable to agree with the said view of the learned Single Judge as the same was taken under the impression that a decision to order inquiry into the  offence  itself  would  prima  facie  amount  to holding him, if not guilty, very near to a finding of his guilt. We have pointed out earlier that the purpose of conducting preliminary inquiry is not for that purpose at all. The would-be accused is not necessary for the court  to  decide  the  question  of  expediency  in  the interest of justice that an inquiry should be held. We have  come  across  decisions  of  some  other  High Courts which held the view that the persons against whom proceedings were instituted have no such right to  participate  in  the  preliminary  inquiry  (vide M. Muthuswamy v. Special  Police  Establishment [1985 Cri LJ 420 (Mad)] ).”

(emphasis supplied)

12. However,  in  the  subsequent  decision  in  Sharad

Pawar (supra), while dealing with a similar question, a three-

Judge Bench of this Court did not take note of the dictum in

Pritish (supra) and went on to observe as follows:

“7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to filed complaint  against  Defendants  1  to  6,  it  was necessary for the learned Single Judge to conduct a preliminary enquiry  as  contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was admittedly not done.  

8. We,  therefore,  in  the  interest  of  justice,  allow these appeals, set aside the impugned order of the High  Court  passed  in  the  application  filed  by Respondent  1-plaintiff under  Section 340 CrPC and remit  the  matter  to  the  learned  Single  Judge  to

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decide the application under Section 340 CrPC afresh in  accordance  with  law,  and  after  affording reasonable  opportunity  of  being  heard  to  the defendants, against whom the learned Single Judge ordered enquiry.”

13. Later,  the judgment  in  Pritish (supra)  came to  be

relied upon by a two-Judge Bench of this Court in  Amarsang

Nathaji   (supra).  While  dealing  with  the  propriety  of  the

procedure  adopted  by  the  Court  making  a  complaint  under

Section  340  of  the  Code,  the  Bench  in  Amarsang Nathaji

observed as follows:

“7. In  the  process  of  formation  of  opinion  by  the court that it  is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though  it  is  not  mandatory.  In  case,  the  court  is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under  Section  340  CrPC  has  been  committed,  the court  may  dispense  with  the  preliminary  inquiry. Even after forming an opinion as to the offence which appears  to  have  been  committed  also,  it  is  not mandatory  that  a  complaint  should  be  filed  as  a matter  of  course.  (See Pritish v. State  of Maharashtra [Pritish v. State  of  Maharashtra,  (2002) 1 SCC 253: 2002 SCC (Cri) 140].)

In the same decision, the Court also took note of the

following observations  made by a  Constitution Bench of  this

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Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005)

4 SCC 370 in relation to the scope of Section 340 of the CrPC:

“23. In  view of  the  language  used  in  Section  340 CrPC  the  court  is  not  bound  to  make  a  complaint regarding  commission  of  an  offence  referred  to  in Section 195(1)(b),  as  the section is  conditioned by the words “court is of opinion that it is expedient in the  interests  of  justice”.  This  shows  that  such  a course will be adopted only if the interest of justice requires and not in every case.  Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in  the  interests  of  justice  that  enquiry  should  be made into any of the offences referred to in Section 195(1)(  b  ).   This expediency will normally be judged by the court  by weighing not  the magnitude of  injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact,  such  commission  of  offence  has  upon administration  of  justice.  It  is  possible  that  such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may  deprive  him  of  a  very  valuable  property  or status or the like, but such document may be just a piece of evidence produced or given in evidence in court,  where  voluminous  evidence  may  have  been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal.  In such circumstances,  the court may not consider  it  expedient  in  the  interest  of  justice  to make a complaint.”

(emphasis supplied)

Notably,  however,  the  decision  in  Amarsang

Nathaji did not take note of the contrary observations made in

Sharad Pawar (supra).   

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14. In any event,  given that the decision of the three-

Judge  Bench  in  Sharad  Pawar (supra)  did  not  assign  any

reason as to why it was departing from the opinion expressed

by  a  Coordinate  Bench  in  Pritish (supra)  regarding  the

necessity  of  a  preliminary  inquiry  under  Section  340  of  the

CrPC, as also the observations made by a Constitution Bench of

this Court in Iqbal Singh Marwah (supra), we find it necessary

that the present matter be placed before a larger Bench for its

consideration, particularly to answer 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?

15. Accordingly,  we  direct  the  Registry  to  place  the

papers before the Hon’ble Chief Justice for appropriate orders.

……………………………………………J.         (ASHOK BHUSHAN)

……………………………………………J. (MOHAN M. SHANTANAGOUDAR)

NEW DELHI

FEBRUARY 26, 2020  

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