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Is a preliminary inquiry under S. 340, CrPC mandatory before filing a complaint under S. 195, CrPC? SC refers question to larger Bench

Section 195 of the CrPC deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.

Shruti Mahajan

The Supreme Court today referred to a larger Bench the question of 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.

The reference was made by a Division Bench of Justices Ashok Bhushan and Mohan M Shantanagoudar, in light of two contradictory judgments by coordinate Benches in this regard. Section 340 of the CrPC mandates a preliminary enquiry before a complaint under Section 195 is registered.

Section 195 of the CrPC deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Section 340 of the CrPC lays down the procedure to be followed in case of complaints made under Section 195.

Under Section 340, the statute says that a Court "may" record findings or complaints, and such, "after such preliminary inquiry, if any, as it thinks necessary." The Court, in this regard, has opined that a bare reading of the Section suggests that its is open for the Court to decide whether to hold an inquiry or not.

"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)."

Supreme Court

A similar view that preliminary inquiry is not mandatory was taken by the Court in the 2002 case of Pritish vs the State of Maharashtra. However, a Supreme Court Bench of coordinate strength, passed a contradictory order in the 2010 case Sharad Pawar vs Jagmohan Dalmiya, without recording any reasons for departing from the precedent in Pritish case, .

In the instant 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 moved the Punjab and Haryana High Court under Section 482 of the CrPC. It was claimed that pursuant 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.

The High Court, accepting the submission, directed for the quashing of the proceedings against the Respondent. This brought the State of Punjab to the Supreme Court in appeal.

While considering the question of "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", the Supreme Court was made aware of the contrarian view taken by three-Judge benches of the Supreme Court in the judgments of 2002 and 2010.

Keeping the ambiguity in mind, the Court decided to refer the question to a Larger Bench.

(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?
Questions referred to a larger Bench

[Read the Judgment]

The State of Punjab vs Jasbir Singh.pdf
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