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27 November 2019

Section 340 Of The Code Of Criminal Procedure, 1973: Right Of Hearing Of ‘Would-Be Accused' At Preliminary Inquiry

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Section 195 CrPC provides the mandatory prerequisites, before Court can take cognizance of the offences specified therein.
India Criminal Law
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Section 195 of the Code of Criminal Procedure, 1973 ("CrPC/ Code") bars Court from taking cognizance of offences relating to contempt of lawful authority of public servants1, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate2. Courts are similarly barred from taking cognizance of offences relating to false evidence3 or relating to documents given in evidence in a proceeding before any Court 4, except on a compliant in writing of that Court or any of its authorized officer5. The object of the said Section is to "protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by person actuated by malice or ill-will or frivolity of disposition at the instance of private individuals for the offences specified therein6." Section 195 CrPC is meant to stop private person from obtaining sanction, as a means of wreaking vengeance, and to give Court complete discretion to decide, whether any prosecution under the said Section is necessary or not7. The bar provided under Section 195 CrPC is not intended to take away remedy against a crime but only to protect an innocent person against false or frivolous proceedings by a private person8.

Section 195 CrPC provides the mandatory prerequisites, before 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 itself9, 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 action10. As per the Hon'ble Supreme Court11, 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, and Secondly, it is expedient in the interests of justice that an inquiry should be made into the alleged offence.

One of the fundamentals of the principles of natural justice is the rule of audi alteram partem12. The said rule in its fullest amplitude means13 that a person against whom an order to his prejudice may be passed should be informed of the allegations and charges against him and be given, inter alia, an opportunity of submitting his explanation thereto. A corollary, therefore, deduced from the audi alteram partem rule is, qui aliquid statuerit parte inaudita altera aecqum licet dixerit haud aecquum fecerit, that is, "he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right"14. Courts throughout the world have consistently recognized that a fair hearing goes a long way to ensure that the justice is not only done but, manifestly seen to be done.

It is often claimed on behalf of a person against whom Court may initiating the proceedings in terms of Section 195(1)(b)/ 340 CrPC, that such "would-be accused" must be afforded an opportunity of hearing before any complaint is made to the Magistrate in terms of the said provision(s). However, such argument is based on a flawed understanding of the provisions of Section 340 CrPC and the purpose of inquiry contemplated therein. As aforementioned, the object of preliminary inquiry stipulated under Section 340 CrPC is to only determine whether it is expedient, in the interest of justice, to inquire into the offence based on the materials available before Court. Further, Section 340 CrPC confers only a discretion15 on Court to conduct 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. It is settled law16 that 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 Court17 in Pritish v. State of Maharashtra & Ors., (2002) 1 SCC 253 has held that 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. As per the Hon'ble Court, 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. Accordingly, the Hon'ble 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."

The above observations of the Hon'ble Supreme Court have consistently guided the Courts throughout the country. Following the above precedence, the Hon'ble Punjab and Haryana High Court in Devinder Mohan Zakhmi v. Amritsar Improvement Trust, 2002 SCC OnLine P&H 439 has 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 Courts18, subsequently, have consistently held that Section 340 CrPC does not envisage hearing of the would-be accused19, before filing of compliant.

However, contrary to its previous judgment in Pritish v. State of Maharashtra & Ors.20, the Hon'ble Supreme Court vide an order dated 17.03.2019, passed in Sharad Pawar v. Jagmohan Dalmiya21, 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 bearing heard to the defendants, against whom the learned Single Judge ordered inquiry. As per the Hon'ble Supreme Court in the said case, "before giving a direction to file 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." Pertinently, the said order was passed by the Hon'ble Supreme Court without considering its previous judgment. At the same time, while passing the said order, the Hon'ble Court neither discussed the provisions of law nor delved into the purpose and object of provisions under Section 340 CrPC. Accordingly, the correctness and precedential value22 of the observations made therein seems to be doubtful, especially when the provisions of Section 340 CrPC itself confers23 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.

Conclusively, Sections 195 and 340 CrPC are meant to ensure that majesty of Court and administration of justice is not hampered. However, it is settled law24 that 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. Further, when such proceedings are meant only to form an opinion regarding making of formal complaint to the concerned Magistrate, it is quite understandable and logical 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. Therefore, cannot be said to be a violation of any right to be heard/ no violation of audi alteram partem. In fact, it is only once such a compliant is made and Magistrate calls such person as an accused to appear before him, legal right to be heard accrues on him. Seen in this context, the judgment of Hon'ble Supreme Court in Pritish v. State of Maharashtra & Ors., (2002) 1 SCC 253 seem to lay down the correct law. Nevertheless, in light of a conflicting decision of a coordinate bench of the Hon'ble Supreme Court, a decision on the said issue by a larger bench of the Hon'ble Court would be an appreciated step to clear ambiguity and bring lucidity in law in this regard.

Footnotes

1 Sections 172 to 188 (both inclusive) of the Indian Penal Code, 1860 ("IPC") under Chapter X thereof.

2 Section 195(a) of the Code of Criminal Procedure, 1973 ("CrPC")

3 Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 IPC, under Chapter XI thereof (inter alia of giving or fabrication of false evidence, etc.)

4 Offence described under Section 463 IPC, or punishable under Section 471/ 475/ or 476 IPC, committed in respect of a document produced or given in evidence in a proceeding in any Court

5 Section 195(b) CrPC

6 State of U.P. v. Mata Bhikh, (1994) 4 SCC 95

7 V. Savitha Devi v. S. Kalaikumar (Dr.), 2010 SCC OnLine Mad 6108

8 CBI v. M. Sivamani, (2017) 14 SCC 855

9 Section 340 CrPC related only to the offences specified under Section 195(1)(b) CrPC

10 Narendra Kumar Srivastava v. State of Bihar, (2019) 3 SCC 318

11 Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

12 Latin phrase meaning "listen to the other side", or "let the other side be heard as well"

13 Union of India & Another v. Tulsiram Patel & Others, AIR 1985 SC 1416

14 Also expressed as, "justice should not only be done but should manifestly be seen to be done."

15 Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

16 Pritish v. State of Maharashtra, (2002) 1 SCC 253 and Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

17 Three Judges' bench of the Hon'ble Supreme Court comprising of HMJ K.T. Thomas, HMJ S.N. Phukan and HMJ Y.K. Sabharwal

18 Refer to 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

19 person against whom prosecution is likely to be instituted

20 (2002) 1 SCC 253

21 (2010) 15 SCC 290

22 Order was passed a three Judge bench of the Hon'ble Supreme Court comprising of HMJ K.G. Balakrishnan, HMJ Deepak Verma and HMJ Dr. B.S.Chuahan (pertinently, the judgment of Hon'ble Supreme Court in Pritish v. State of Maharashtra & Ors., (2002) 1 SCC 253 was also passed by a Three Judge bench of the Hon'ble Court)

23 Evident from the use of the words, "..such Court may, after such preliminary enquiry, if any, ......"

24 Santokh Singh v. Izhar Hussain, (1973) 2 SCC 406

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