The State Of Punjab vs Jasbir Singh on 26 February, 2020


Supreme Court of India

The State Of Punjab vs Jasbir Singh on 26 February, 2020

Author: Mohan M. Shantanagoudar

                                                        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




                                      JUDGMENT

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
Signature Not Verified

Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2020.02.26
18:15:45 IST
Reason:

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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