Whether a preliminary enquiry under Section 340 of the Code of Criminal Procedure (CrPC) is mandatory for a complaint under Section 195 of the CrPC?

A Division Bench of Justices Ashok Bhushan and Mohan M Shantanagoudar, made reference to larger bench in the wake of two contradictory judgments by coordinate Benches on the issue of Section 340 of the CrPC that mandates a preliminary enquiry before a complaint registered under Section 195.

Questions referred to the bench

1. 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?
2. What is the scope and ambit of such preliminary inquiry?

Facts of the case:

The Respondent was charged under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (IPC) for allegedly forging and submitting fabricated documents before the Court during the course of legal proceedings before the Revenue Court.

He sought for the proceedings against him to be quashed and filed before the Punjab and Haryana High Court under Section 482 of the CrPC. It was stated that according to the provisions under Section 340 of the CrPC, no preliminary inquiry against him was conducted and thus, the FIR against him was hit by these provisions.

Section 340 states:

Procedure in cases mentioned in section 195.

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, 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 a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-

1. record a finding to that effect;
2. make a complaint thereof in writing;
3. send it to a Magistrate of the first class having jurisdiction;
4. 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
5. bind over any person to appear and give evidence before such Magistrate.

2. The power conferred on a Court by subsection (1) in respect of an offence may, in any case where that Court has neither made a complaint under subsection (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of subsection (4) of section 195.

3. A complaint made under this section shall be signed,-

1.  where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
2.  in any other case, by the presiding officer of the Court.

4. In this section," Court" has the same meaning as in section 195.

Section 195 states prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given evidence.

Relevant portion of Section 195 states that:

(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…”

The two contrasting judgments:

Pritish vs. State of Maharashtra, (2002) 1 SCC 253

Held that an opportunity to the would-be accused before the filing of the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory.

Sharad Pawar vs. JagmohanDalmiya, (2010) 15 SCC 290

An application filed by Respondent 1-plaintiff under Section 340 CrPC was allowed and decided the in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry.