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CASE NO.:

Appeal (crl.) 1188 of 2001

PETITIONER:

PRITISH

Vs.

RESPONDENT:

STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT: 21/11/2001

BENCH:

K.T. Thomas, S.N. Phukan & Y.K. Sabharwal

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.

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.

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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.

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 to 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.

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 besides the appellant

and Rajkumar Ananarao Gulhane. We are told that those five

persons moved the High Court and got themselves extricated

from prosecution proceedings. Appellant then filed an

appeal before the High Court purportedly under Section 341

of the Code in challenge of the order of the reference

court which directed the filing of a criminal complaint

against him. The main contention he raised before the High

Court was that the reference court has overlooked the basic

principles of natural justice and proceeded to make an

inquiry without giving an opportunity to him to be heard in

the matter and hence great prejudice had been caused to him

as he had been deprived of the opportunity to be heard.

Learned single judge of the High Court while repelling the

above contention observed thus:

The procedure does not contemplate that

before initiating preliminary enquiry the

court ought to give notice to the person

against whom it may make a complaint on

completion of the preliminary enquiry and,

obviously so because what is contemplated is

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only a preliminary enquiry, and if the court

chooses to take action against the said

person, it does not mean that he will not

have full and adequate opportunity under

Section 340(1)(b) of the Criminal Procedure

Code. Therefore, the contention of the

learned counsel for the appellants, that the

court, before initiating any enquiry into

the matter, ought to have given notice to

the appellants and that the appellants have

a right to be heard, cannot be accepted.

Shri V.A. Mohta, learned senior counsel for the

appellant contended that the basic principle of natural

justice is violated when the reference court ordered

prosecution against the appellant without affording him an

opportunity of being heard. In elaborating the said point

learned senior counsel submitted that the scheme of

Sections 340 to 344 of the Code contains an in-built safety

for the persons sought to be proceeded against, by obliging

the court to afford an opportunity of being heard to them.

Chapter XXVI of the Code contains provisions as to

offences affecting the administration of justice. Among

the 12 sections subsumed therein we need consider only

three. Section 340 consists of four sub-sections of which

only the first sub-section is relevant for the purpose of

this case. Hence the said sub-section is extracted below:

When upon an application made to it in this

behalf or otherwise, any court is of opinion

that it is expedient in the interest 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,-

(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;

(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.

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

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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.

Inquiry is defined in Section 2(g) of the Code as

every inquiry, other than a trial, conducted under 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 first class concerned. As the offences

involved are all falling within the purview of warrant

case [as defined in Sec.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.

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

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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.

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.

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.

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 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.

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. In M.S. Sheriff and

anr. vs. State of Madras and ors. (AIR 1954 SC 397) a

Constitution Bench of this Court cautioned that no

expression on the guilt or innocence of the persons should

be made by the court while passing an order under Section

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340 of the Code. An exercise of the court at that stage is

not for finding whether any offence was committed or who

committed the same. The scope is confined to see whether

the court could then decide on the materials available that

the matter requires inquiry by a criminal court and that it

is expedient in the interest of justice to have it inquired

into.

Learned senior counsel cited the decision of a single

Judge of the High Court of Andhra Pradesh in Nimmakayala

Audi Narrayanamma vs. State of Andhra Pradesh (AIR 1970

A.P. 119) in which learned judge observed that it is just

and proper that the court issues a show cause notice to the

would be accused as to why they should not be prosecuted.

This was said while interpreting the scope of Section 476

of the old Code of Criminal Procedure (which corresponds

with Section 340 of the present Code). The following is

the main reasoning of the learned single Judge:

The proceedings under Section 476 Criminal

P.C. being judicial and criminal in nature,

the interpretation that should be placed in

construing the section should be just, fair,

proper and equitable and must be in

accordance with the principles of natural

justice. By adopting such interpretation

and procedure, the aggrieved party would be

afforded with an adequate opportunity to

show and satisfy the court that it was not

in the interests of justice, to launch the

prosecution and thereby avoid further

proceeding. That apart, the appellate court

also would be in a position to appreciate

the reasons assigned in each case and would

have the advantage of coming to its own

conclusion without any difficulty about the

justification or otherwise of launching the

prosecution in a particular case. When once

the prosecution had been launched, the

accused will not be having an opportunity

thereafter to raise the question of

expediency in the interests of justice to

launch the very prosecution itself. The

case thereafter will have to be gone into on

the merits.

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 vs. Special Police Establishment (AIR 1985

Criminal Law Journal 420)}.

We therefore agree with the impugned judgment that

appellant cannot complain that he was not heard during the

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preliminary inquiry conducted by the reference court under

Section 340 of the Code. In the result we dismiss this

appeal.

J

[ K.T. Thomas ]

J

[ S.N. Phukan ]

J

[ Y.K. Sabharwal ]

November 21, 2001.