Allahabad High Court
Subhash Chand vs State Of U.P. And 2 Others on 3 February, 2023
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 64 Case :- APPLICATION U/S 482 No. - 37815 of 2022 Applicant :- Subhash Chand Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Kamlesh Kumar Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Kamlesh Kumar Dwivedi, learned counsel for the applicant and learned AGA for the State.
2. Challenge has been raised to the orders dated 16.05.2016 and 24.12.2016, whereby the learned Additional Chief Judicial Magistrate, Court No.3, Ghaziabad has issued notice to the opposite party nos. 2 and 3 to participate in the proceedings in Case No. 2982 of 2015 (Subhash Chand Vs. Mukesh Tyagi & Anr.) instituted under Section 340 Cr.P.C., Police Station - Kavi Nagar, District - Ghaziabad. Further, challenge has been raised to the order dated 20.10.2022 passed by the Additional District & Sessions Judge, Court No.4, Ghaziabad, whereby Criminal Revision No. 12 of 2017 arising from those orders, has been rejected.
3. Submission is, the applicant has instituted proceedings under Section 340 Cr.P.C. At the initial stage itself without forming its own opinion, the learned court below has required the presence of opposite parties. It has been resisted on the strength of language of Section 340(1) of the Code of Criminal Procedure, 1973. Heavy reliance has been placed on a decision of the Supreme Court in Pritish Vs. State of Maharashtra, AIR 2002 SC 236 (paragraph nos. 12 and 13).
4. On the other hand learned AGA would submit, at the pre-trial enquiry stage, though not mandatory, it was discretion vested in the Court to allow the accused to have his say so as to form a better informed opinion as to the ingredients of offence alleged.
5. Having heard learned counsel for the parties and having perused the record, Section 340(1) of Cr.P.C. reads as below :
"340. Procedure in cases mentioned in Section 195.--(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests 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."
6. Plainly, the provision contemplates a preliminary enquiry before the concerned court may take congnizance of the offence against the accused persons. It is true, once cognizance has been taken, the accused gets a perfect right for hearing, for which parties may be summoned, at the same time, the procedure of preliminary enquiry is not prescribed under the provision (noted above). The learned Magistrate otherwise vested with the power to make a proper enquiry, is not divested of power to hear such person who may shed valuable light on the allegation which forms subject matter of the accusation as to commission of offence. The accused person may also be one such person whose say may be considered relevant by the learned Magistrate, at that stage.
7. Insofar as it is undisputed, the learned court below was obligated in law to conduct a preliminary enquiry, the fact it chose to issue notice to the opposite parties to have their say before it may have formed any preliminary opinion as to commission of offence or otherwise, therefore, does not suffer from any illegality or impropriety as may warrant any interference by this Court in exercise of inherent jurisdiction under Section 482 Cr.P.C.
8. The decision referred to by the learned counsel for the applicant arose in completely different facts. In that case, the accused person namely Pritish was not issued any notice at the stage of preliminary enquiry rather he claimed, he may be heard before any opinion is formed by the learned Magistrate and before prosecution may have been ordered to be initiated. It is in that context, the Supreme Court observed as below :
"12. 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.
13. 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."
9. Plainly, the ratio of the above decision does not help the applicant. In fact, it runs contrary to the submission being canvassed. In paragraph no.12 of the said decision, the Supreme Court clearly held, the legal right of the accused to be heard arises when the learned Magistrate calls him. At that stage, only the accused may get a right to participate in the "pre-trial-enquiry". Thus, the Supreme Court itself clarified, the accused person gain a right to be heard at the pre-trial but that right would arise only in cases where the learned Magistrate/Court may choose to call him to participate in such enquiry.
10. The above reasoning was further clarified in paragraph no.13 of the said report, wherein the Supreme Court only observed there exists no statutory requirement in favour of the accused to be afforded an opportunity of hearing at the pre-trial stage.
11. To not have a statutory right to be heard is entirely different from being allowed to participate in a "pre-trial-enquiry". In the wisdom of the Court concerned, rules of natural justice and fairness would allow the learned Magistrate to issue notice to the accused to voice his case in the preliminary enquiry or the "pre-trial-enquiry". At that stage, neither detailed evidence is to be recorded nor cross-examination are to be granted.
12. While preliminary enquiry is to allow for an opportunity to the concerned Court to help form a better opinion as to the facts alleged such that a tentative opinion may be formed - that offence had been committed, no coercive measures may follow if the person thus noticed fails to appear before the learned court below. On the other hand, upon issuance of summon, a legal compulsion arises if the person fails to comply with the same. That conduct would invite coercive measures. Here, the learned Magistrate has rightly issued notice to the accused in the context of the preliminary enquiry contemplated.
13. In view of the above error, present application lacks merit and is accordingly dismissed.
Order Date :- 3.2.2023 Abhilash