Jharkhand High Court
Hridayangshu Bhattacharjee vs State Of Jharkhand And Ors. on 18 July, 2002
Equivalent citations: 2002(50)BLJR1831, 2003CRILJ624, 2003 CRI. L. J. 624, 2003 AIR - JHAR. H. C. R. 100, 2002 (3) BLJR 1831, 2002 BLJR 3 1831
Author: Deoki Nandan Prasad
Bench: Deoki Nandan Prasad
ORDER Deoki Nandan Prasad, J.
1. This application has been filed under Section 482 of the Code of Criminal Procedure for quashing the order dated 13-2-200.1, whereby and whereunder the learned Munsif has allowed the Opposite parties to appear and file show cause and also directed the petitioner to reproduce his witnesses for giving opportunities to cross-examine those witnesses in the preliminary enquiry, which was conducted by the Court below Under section 340 of the Code of Criminal Procedure in connection with Misc. Case No. 23/2000.
2. Short facts giving rise to this application is that a Title Suit No. 16 of 1988 for specific performance was filed by the petitioner and others against Rekha Bhattacharjee and others claiming that there was an agreement between the petitioner and Smt. Rekha Bhattacharjee and others for sale of property for a consideration of Rs. 1,36,000/- out of which Rs. 35,937/-were paid in advance and the rest amount was to be paid at the time of execution of the sale deed, but since the sale deed was not executed, a suit for specific performance was filed, which was dismissed but subsequently allowed in First Appeal against which L.P.A. was filed and suit was remanded for fresh trial, which is pending. One Title (Eviction) Suit No. 6 of 1998 was also filed on the ground of personal necessity claiming themselves (O.Ps.) to be proprietor of the suit property and the petitioner as a tenant. One Ranjan Bhattacharjee was the Pairvikar of the Eviction Suit No. 6 of 1998 on behalf of Smt. Rekha Bhatacharjee and others. A Civil Revision No. 103 of 1998 was filed by the petitioner which was disposed of with an observation to decide both the suits together, but again a Civil Review No. 43 of 1998 was filed which was allowed and directed by the Court below to decide both the suits independently. Subsequently, Eviction Suit No. 6 of 1998 was decided in favour of Smt. Rekha Bhattacharjee and others. It is further stated that much prior to passing of the judgment and preparation of the decree in Eviction Suit No. 6 of 1998 one of the plaintiffs, namely, Sisir Kumar Bhattacharjee died on 1-3-1999 at Calcutta but the plaintiff (Opposite party) did not bring this fact to the knowledge of the Court below. Execution Case No. 5 of 1999 was filed by Smt. Rekha Bhattacharjee and others and in the Execution application there was signature of late Sishir Kumar Bhattacharjee also apart from signatures of Smt. Rekha Bhattacharjee and Samir Kumar Bhattacharjee, which is absolutely forged signature of late Sishir Kumar Bhattacharjee who already died much before. Thereafter, the petitioner and others filed Misc. Case No. 7 of 1999 stating all the facts and requested to hold an enquiry and file a complaint case. The petitioner produced the witnesses in the enquiry and they were examined and after conclusion of the evidence, the opposite party appeared and filed a show cause without any Vakalatnama and after hearing the parties the Court below passed the impugned order allowing that petition to cross-examine the witnesses of the petitioner who were directed to reproduce the said witnesses. Hence, this application.
3. On the other hand, a counter-affidavit has been filed claiming therein that Vakalatnama filed in the main case of proceeding also presumed to be filed in the Misc. proceeding arising out of the main case and no separate Vakalatnama is required to be filed in the Misc. Case. It is further claimed that there is no illegality in the impugned order for interference and Sishir Kumar Bhattacharjee already signed the paper in question as well as the application Under section 195, Cr.P.C. was filed and notice was also issued to the opposite party for hearing on the point. It is further stated that this application is not maintainable as the main case is pending in the Court of Munsif as regards to the civil case and as such the enquiry Under section 340, Cr.P.C. is not maintainable. Moreover, the application has been filed Under section 195 of the Code of Criminal Procedure and this application has been filed with oblique motive without any basis which is fit to be dismissed.
4. The learned counsel appearing on behalf of the petitioner submitted that the Misc. Case No. 7 of 1999 was started only to enquire into the matter about the documents being forged produced/filed by the opposite parties in the Court, which is a preliminary enquiry in which the opposite party is not required to appear in the Court as well as the opposite party is not required also for cross-examination of the witnesses of the petitioner, at this stage, rather it is for the Court concerned to come in conclusion whether there is material for filing any complaint or not and so the Court below committed error in giving an opportunity to the opposite party for cross-examination of the witnesses of the petitioner, at this stage. It is also submitted that the enquiry Under section 340 of the Code of Criminal Procedure is similar to the enquiry conducted under Section 202, Cr.P.C. wherein the Court is required to see as to whether a prima facie case is made out against the accused or not and there is no scope for cross-examining the witnesses by the accused. It is also argued that forged document was produced in the Court, who is competent enough to proceed with the case, if it is found to be forged and that is why a petition Under section 195(b)(ii), Cr.P.C. was filed for holding enquiry under Section 340, Cr.P.C. as Sishir Kumar Bhattacharjee already died as back as on 1-3-1999 and by suppressing the truth the Opposite party obtained a decree. The counsel for the petitioner also relied upon a case of Pritish v. State of Maharashtra (2002 (1) East Cr Cases 206 : (AIR 2002 SC 236 : 2002 Cri LJ 548)).
4A. On the other hand, the learned counsel appearing on behalf of the opposite parties contended before me that this application is not maintainable as the case is pending before the Munsif relating to the civil matter and as such the enquiry cannot be held under Section 340 of the Code of Criminal Procedure. Moreover, an application Under section 195, Cr.P.C. was filed as well as there is no illegality in the impugned order the learned Court below correctly passed the order giving an opportunity to the opposite party for cross-examination of the witnesses of petitioner so that order may not be passed ex parte. Counsel for the opposite party also relied upon a case of Sachidanand Singh v. State of Bihar, AIR 1998 SC 1121 : (1998 Cri LJ 1565).
5. From going through the record, it is apparent that on the petition filed under Section 195, Cr.P.C., a Misc. Case No. 7 of 1999 was initiated in which some of the witnesses on behalf of the petitioner have also been examined.
Section 195(1)(b)(ii) of the Code of Criminal Procedure reads as follows :
(1) No Court shall take cognizance--
(b)(ii) 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, or except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
6. Obviously, it depends upon the Court concerned for taking cognizance after due enquiry be made when offence is alleged to have been committed in respect of a document produced. Thus, Section 195 of the Code of Criminal Procedure is closely related to Section 340 of the said Code. Section 195, Cr. P.C. describes the offence in respect of which a complaint is necessary and Section 340, Cr. P.C. prescribes the procedure for making a complaint by Court. It is also obvious that after enquiry being made Under section 340, Cr.P.C. if the Court finds material then only the Court is competent to file the complaint in writing. Under Section 195(3) of the Code, the Court has been described which means a Civil Revenue and Criminal Court and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this Section.
7. Thus, even if any forgery is committed even in the Civil Court in the matter of civil cases, an enquiry will be held in accordance with Section 340 of the Code of Criminal Procedure. Enquiry has been defined under Section 2(g) of the Code, which reads as under :
"inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court."
Thus the inquiry shall be conducted by a Magistrate or Court and, therefore, any Court as described Under section 195(3), Cr.P.C. is empowered to hold inquiry accordingly as required Under section 340, Cr.P.C., if any application is filed Under section 195(1)(b)(ii), Cr.P.C. Hence, the argument as advanced by the learned counsel for the opposite party that the matter is relating to the civil case and, therefore, inquiry cannot be conducted under Section 340, Cr.P.C., has got no substance in view of Section 195(3), Cr.P.C. Further, the facts of the decision of Sachidanand Singh v. State of Bihar (supra) is quite distinguishable from the facts of the instant case. The scope of preliminary enquiry envisaged in Section 340(1) of the Code is to ascertain whether any offence attracting administration of justice has been committed in respect of document produced in Court.
8. In the case of Pritish v. State of Maharashtra (AIR 2002 SC 236 : 2002 Cri LJ 548) (supra), the Apex Court held that at the stage of inquiry under Section 340(1) of the Code, the Court is not deciding the guilt or innocence of the accused against whom the Court might file a complaint before the Magistrate, the Court only considers where it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. The scope is confined to see whether the Courts 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. There is no statutory requirement to afford an opportunity of hearing to the accused against whom that Court might file a complaint before the Magistrate for initiating prosecution proceedings.
9. Thus, it is evident that the inquiry held under Section 340(1) of the Code by the Court is a preliminary inquiry and if the Court thinks necessary it may record the finding in writing and will proceed in accordance with law.
10. In the result, I find that the Court below committed error in passing the order impugned by giving the opportunity to the opposite parties for cross-examination of the witnesses of the petitioner, at this stage, which is liable to be quashed. Accordingly, I find merit in this application, which is allowed. The order dated 13-2-2001 is, hereby, quashed.