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A Preliminary Inquiry Under Section 340 Crpc: Mandatory Or Discretionary?

A Preliminary Inquiry Under Section 340 Crpc: Mandatory Or Discretionary?
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Section 195 of the Code of Criminal Procedure, 1973 ("CrPC") bars the court from taking cognizance of offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate. The bar provided under Section 195 CrPC is not intended to take away the...

Section 195 of the Code of Criminal Procedure, 1973 ("CrPC") bars the court from taking cognizance of offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate. The bar provided under Section 195 CrPC is not intended to take away the remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person[1]. The procedure to be followed in such cases, where the court desires to initiate prosecution in respect of the offence(s) committed during, or in relation to, a proceeding before itself, is provided under Section 340 CrPC.

The object of Section 340 CrPC is to ascertain whether any offence affecting administration of justice has been committed in relation to any proceedings before or any document produced/ given in evidence in court, during the time when the document or evidence was in custodia legis and whether it is also expedient in the interest of justice to take such action[2].

Section 195 CrPC provides the mandatory pre-requisites, before a court can take cognizance of the offences specified therein. The procedure to be followed in such cases, where the Court desires to initiate prosecution in respect of the offence(s) committed during, or in relation to, a proceeding before itself, is provided under Section 340 CrPC. As per the Hon'ble Supreme Court[3], there are two pre-conditions for initiating proceedings under Section 340 CrPC: Firstly, the material produced before the court must establish a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195 CrPC which states "of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court," and secondly, it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

Preliminary Inquiry

The object of preliminary inquiry stipulated under Section 340 CrPC is only to determine whether it is expedient, in the interest of justice, to inquire into the offence based on the materials available before the court. In Iqbal Singh Marwah v. Meenakshi Marwah[4] the Supreme Court observed that 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', which also goes on to show the intention of the legislature while framing the section. 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.

Further, Section 340 CrPC confers only a discretionary power[5] on the court to conduct a preliminary inquiry for such determination. However, where a court is otherwise in a position to form an opinion regarding the initiation of proceedings/ making complaint in terms of Section 340 CrPC, the court may dispense with the preliminary inquiry.

Under such cases, mere absence of any preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. In this regard, the Hon'ble Supreme Court in Pritish v. State of Maharashtra & Ors.[6], has held that the procedure of preliminary inquiry envisaged under Section 340 CrPC is not meant to decide the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. The Court held that the scope of such proceeding is confined to see whether, based on the material available, it is expedient in the interest of justice that an inquiry be made.

However, contrary to its previous judgment in Pritish v. State of Maharashtra & Ors., the Hon'ble Supreme Court vide an order passed in Sharad Pawar v. Jagmohan Dalmiya[7], remanded the matter to the Hon'ble High Court of Calcutta to decide the application under Section 340 CrPC afresh, after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered an inquiry. The Supreme Court in the instant case held that "before giving a direction to file a complaint against Defendants Nos. 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."

Pertinently, the order was passed by the Hon'ble Supreme Court without considering its previous judgment in Pritish (supra) as the Court neither discussed the provisions of law nor delved into the purpose and object of the provisions under Section 340 CrPC. Accordingly, the correctness and precedential value of the observations made therein seem to be problematic, especially when the provisions of Section 340 CrPC itself confer a discretion to the Court to hold a preliminary inquiry, purpose of which is only to form a prima facie opinion for making/ referring a compliant to the concerned Magistrate.

Recently, the Supreme Court has put the matter to rest by holding that the law as enunciated by the Constitution Bench in Iqbal Singh Marwah's case (supra) is in line with what was observed in Pritish'case (supra).

THE SUBSEQUENT IMPACT OF PRELIMINARY INQUIRY AND THE PRINCIPLE OF AUDI ALTERAM PARTEM

In Sharad Pawar (supra), the Court held that in terms of Section 195(1)(b) / 340 CrPC, the "would-be accused" must be afforded an opportunity of being heard before any complaint is made to the Magistrate in terms of the said provision(s). However, such finding is based on a flawed understanding of the provisions of Section 340 CrPC, and the purpose of inquiry contemplated therein as such proceedings are meant only to form an opinion regarding making a formal complaint to the concerned magistrate. It is quite understandable as well as legal that a person against whom such preliminary inquiry is conducted/ "would-be accused" should not have a right to seek an audience before the Court at such a stage.

Clearly, such a preliminary inquiry is not meant to establish guilt or innocence of a person.
Therefore, it cannot be said to be a violation of any right to be heard (audi alteram partem). In fact, it is only when, once such a complaint is made and the magistrate calls such person as an accused to appear before him, the legal right to be heard accrues on him. The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. The Madras High Court in M. Muthuswamy v. Special Police Establishment[8] held that persons against whom proceedings were instituted have no such right to participate in the preliminary inquiry.

S.A. Smith Judicial Review of Administrative Action,[9] states that in administrative law, prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some factors, singly or in combination with another.

Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to the accused to forth his stance[10]. This rule cannot be applied to defeat the ends of justice or to make the law "lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation" and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.

The Supreme Court in Union of India v. W.N. Chadha[11], clearly spelt out this principle by holding that - "If prior notice and an opportunity of hearing are to be given to an Accused in every criminal case before taking any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless, absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of investigation does not attract such a course in the absence of any statutory obligation to the contrary."

A clear parallel can be drawn between Section 156(3) and Section 340 of the CrPC with regard to the right to be heard of a "would-be accused" at a pre-trial stage. A Full Bench of the Allahabad High Court in the case of Father Thomas v. State of U.P.[12], held that a prospective accused had no locus standi to challenge a direction for investigation under Section 156(3) Cr.P.C by filing a revision petition before cognizance or issuance of process against him. The court noted that the accused had a right to raise his defense only during trial and even on filing of complaint, when the magistrate proceeds to take cognizance, the prospective accused cannot intervene or raise his defense unless summons are issued. Similarly, under Section 340 CrPC, the right to be heard of an accused is not violated since the objective behind this section is only to give the courts a discretion to conduct a preliminary inquiry if it deems necessary and, not to give a final judgment.

Use Of The Word 'May'

The above discussion brings us to the question on the interpretation of the word 'may' used in Section 340 CrPC. The word 'may' and 'shall' have always been contentious issues in various enactments and legal documents. This is because in some circumstances the word 'may' has been treated as mandatory like 'shall'. Whereas in some circumstances even the word 'shall' has not been used as mandatory and has been treated like the use of the word 'may'. Thus, an understanding of the interpretation of the words "may" and "shall" as per Indian Law is very important in understanding Section 340 of CrPC as well as its object.

In "Crawford on the Construction of Statutes[13]", it is stated:

"The question as to whether a statute is mandatory, or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other…"

In Padma Sundara Rao (Dead) and others v. State of T.N. and Others,[14] the Supreme Court held that Courts cannot read into a statutory provision which is clear and unambiguous.

In B. Premanand and Ors. v. Mohan Koikal and Ors.,[15] the Supreme Court held that literal construction is the thumb rule, and it is only in case where a literal interpretation would lead to absurdity then only any other mode of interpretation, including a purposive one, can be resorted to.

Going by the literal rule of Interpretation of Statutes, the intent behind Section 340 CrPC seems unambiguous, i.e., to give the power to the Courts to decide if a preliminary inquiry is necessary and keep this as a non-mandatory provision by using the word "may". The courts have also upheld this view in various decisions such as in the decision of Madan Lal Sharma v. Punjab and Haryana High Court Through its Registrar[16] wherein it is held as follows: -

"A reading of S.340 Cr.P.C., shows that the Court is empowered to make such preliminary inquiry as it thinks necessary. The Section does not envisage hearing of the Accused before filing a complaint. It is always open to the Accused to raise all the defences that are open to him under Law before the Magistrate in whose Court the complaint has been filed."

The provisions of Section 340 CrPC itself confers discretion to the court to hold preliminary inquiry, purpose of which is only to form a prima facie opinion for making/ referring a compliant to the concerned magistrate. Accordingly, the Hon'ble Supreme Court held, "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."[17]

Following the above precedence, the Hon'ble Punjab and Haryana High Court in Devinder Mohan Zakhmi v. Amritsar Improvement Trust[18], held that the entertainment of the application of the person against whom preliminary inquiry is initiated under Section 340 CrPC to enable such person to produce evidence in defence at said inquiry stage, is against the mandate of law. Several Courts[19], subsequently, have consistently held that Section 340 CrPC does not envisage hearing of the would-be accused, before filing of compliant.

The Supreme Court in the State of Punjab v. Jasbir Singh[20] held:

"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:

  • 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?
  • What is the scope and ambit of such preliminary inquiry?

Recently, the Supreme Court answered the above reference by holding that the law as enunciated by the Constitution Bench in Iqbal Singh Marwah vs. Meenakshi Marwah (2005) 4 SCC 370 is in line with what was observed in Pritish case (supra). The Bench held that both the judgments in Pritish's case and the Constitution Bench judgment in Iqbal Singh Marwah's case (supra) have not been noted in order passed in Sharad Pawar's Case (supra). Therefore, the Supreme Court held that the answer to the question as to "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" is in the negative. Insofar as the second question is concerned, the scope and ambit of such a preliminary inquiry, also stands resolved in terms of the Constitution Bench judgment of this Court in the Iqbal Singh Marwah's case (supra).

In the conspectus of the above discussion, it can be inferred that the court may order prosecution in terms of Section 340 CrPC only in the larger interest of the administration of justice and not to gratify the feelings of personal revenge or vindictiveness or to serve the ends of a private party. The preliminary enquiry, as can be inferred from the above discussion, is not mandatory as held by the Supreme Court. Keeping in view the language used in Section 340 CrPC, the court is not bound to make a complaint regarding the commission of an offence as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice" which clearly shows that the legislature has intentionally granted a discretion to the courts while ordering a preliminary inquiry under Section 340 CrPC. Further, when a preliminary enquiry is meant only to form an opinion regarding making of formal complaint to the concerned magistrate, it is quite understandable that a person against whom such preliminary inquiry is conducted/ "would-be accused" should not have a right to seek audience before court at such stage. Clearly, such preliminary inquiry is meant not to establish guilt or innocence of such person and is not violative of the right to be heard of an accused. The Supreme Court has finally put the matter to rest which is a step in the right direction.

Authors: : Wasim Beg (Partner), Muneeb Rashid Malik (Associate) and Vidushi Pandey (Intern) At Luthra And Luthra Law Offices India. Views are personal.


[1] CBI v. M. Sivamani, (2017) 14 SCC 855

[2] Narendra Kumar Srivastava v. State of Bihar, (2019) 3 SCC 318

[3] Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

[4] (2005) 4 SCC 370

[5] Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

[6] (2002) 1 SCC 253

[7] (2010) 15 SCC 290

[8] 1984 SCC OnLine Mad 158.

[9] 4th Edition, Stanley A, De Smith, Evans J.M., Stevens and Sons Ltd. (1980).

[10] Union of India v. W.N. Chadha 1993 Supp (4) SCC 260.

[11] 1993 Supp (4) SCC 260.

[12] 2011 (2) ALJ 217.

[13] Earl T. Crawford, Thomas Law Book Company (1940).

[14] 2002 (3) SCC 533

[15] AIR 2011 SC 1925

[16] 2000 CRI.L. J 1512

[17] Pritish v. State of Maharashtra, (2002) 1 SCC 253

[18] 2002 SCC OnLine P&H 439

[19] Union of India v. Haresh Virumal Milani, (2017) 4 Mah LJ 441 and Gurpreet Singh Kang v. Gurpartap Singh, 2013 SCC OnLine P&H 6599

[20] (2020) 12 SCC 96.

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