Bombay High Court
Pritish R. Tayde And Anr. vs The State Of Maharashtra And Ors. on 7 December, 2000
Equivalent citations: 2001CRILJ1594
Author: J.N. Patel
Bench: J.N. Patel
JUDGMENT J.N. Patel, J.
1. Heard learned counsel for the appellants and the learned APP for the respondent No. 1/State.
The appellants have approached this Court impugning the decision of the Civil Judge (Senior Division), in initiating prosecution against them, after holding preliminary enquiry Under Section 340 of the Criminal Procedure Code, by his order dated 2-12-1990. The matter was carried by the appellants/original applicants in Misc. Civil Appeal, before the Court of Additional District Judge, Pusad, impugning the same order. The said Misc. Civil Appeal came to be disposed of with a direction to make appropriate complaint, against respondent Nos. 4 and 5 before the Judicial Magistrate First Class, Pusad. It is this order which is impugned before this Court.
2. The matter arises out of an application moved by the respondents before the Civil Judge (Senior Division), Pusad, bringing on record that in Reference matter arising out of the Land Acquisition proceedings, i .e., LAC No. 73/1992, the appellants had committed offences Snder Sections 191, 192, 196, 199 as well as 195 of the Indian Penal Code by tendering in evidence forged documents and thereby committed offences Under Sections 463 and 464 which were punishable Under Section 465 of the Indian Penal Code. In short, it was their case that in order to claim enhanced compensation, the appellants forged the documents, viz., Cer-tified copy of Index No. II relating to sale transactions so as to make a case that smaller plots were sold at higher price, thereby they are entitled for enhanced compensation. This was relied upon by the Court and as such enhanced compensation came to be awarded. The Court conducted a preliminary enquiry by examining the persons whose sale-deeds were forged by the appellants and the Sub Registrar before whom these documents were registered, and thereby was prima facie satisfied that such offences as alleged by the applicants were committed and, therefore, proposed to file a complaint before the Judicial Magistrate, First Class. The appellate Court confirmed the said finding arrived at by the Civil Judge (Senior Division) in this preliminary enquiry and directed him to file such complaint.
3. It is contended by the learned counsel for the appellants that the Court, which has conducted preliminary enquiry was initiating proceedings as contemplated Under Section 340(1) of the Criminal Procedure Code, and has overlooked the basic principles of rules of natural justice and without giving an opportunity to the appellants to be heard in the matter, proceeded to make an enquiry and came to a decision to file a complaint case against them. It is submitted that this has greatly prejudiced the appellant as it has deprived them of an opportunity to be heard and, therefore, its decision to lodge a complaint deserves to be quashed and set aside, with a direction to the concerned Court to hear the appellants and then decide the case afresh. In support of this, the learned counsel for the appellants has relied upon the case of Amzad All v. Marfat All Biswas, 1997 Cri LJ 4148 (Cal) and particularly in reference to the decision of the Apex Court in the case of Dr. Pal Choudhary v. State of Assam, AIR 1960 SC 133 : (1960 Cri LJ 174).
4. At this stage, the learned counsel for the appellants wants to move the Court by an application for amendment. Yesterday when this matter was taken up, the Court had heard the learned counsel for the appellants and the learned APP. On the request of the learned counsel for the appellants, that she would like to cite some more authorities in support of her contention, this matter came to be adjourned. Now, the learned counsel for the appellants wants to move an application for amendment. It is too late to seek such a relief. The learned counsel for the appellants submits that this is a pure question of law. This Court permits her to put forth her arguments on this point, even at this sage.
5. The contention now raised by the learned counsel for the appellants is that the Court, which dealt with the matter, was a civil Court and, therefore, it ought to have followed the procedure prescribed Under Section 141 of the Civil Procedure Code, while making an enquiry as contemplated Under Section 340 of the Criminal Procedure Code, and as Section 141 of the Civil Procedure Code provides for a trial of a miscellaneous proceeding as a suit, the Court ought to have followed the procedure as provided under the Civil Procedure Code for trying a suit, and this having been denied the preliminary enquiry as well as directions of the appellate Court are vitiated. It is further contended by the learned Counsel for the appellants that though the appellants have preferred an appeal Under Section 341 read with Section 195 of the Criminal Procedure Code before this Court, this Court should follow the procedure for dealing with this appeal as provided under the Civil Procedure Code.
6. The next contention of the learned counsel for the appellants is that, in the alternative, in the event that this Court holds that the matter has to be dealt with in accordance with the Criminal Procedure Code, then, it is submitted that the law is silent on the point as to what procedure is to be followed for dealing with an application Under Section 340(1) of the Criminal Procedure Code. And when the law is silent, the rules of Audi alteram partem come into picture and on this ground also, the appellants deserves an opportunity of hearing and be served with notice. The learned counsel relies on the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597.
7. It is submitted that the matter be looked at from any angle, the right to be heard is inherent and vest in the person against whom a complaint is directed to be lodged or is lodged, before recorded such finding. The learned counsel placed reliance on the case of K. Karunakaran v. T.V. Eachara Warrier, AIR 1978 SC 290 : (1978 Cri LJ 339). The last submission of the learned counsel for the appellants is that the alleged forged documents were not in cus-tody of the Court and, therefore any thing which has taken place prior to tendering of documents in the Court, would not bring such forgery within the purview of the Court so as to initiate action Under Section 340 of the Criminal Procedure Code.
8. The learned AFP submitted that the proceedings have been rightly initiated by the Court in accordance with Section 340(1) of the Criminal Procedure Code, which clearly provides that any Court can initiate a preliminary enquiry into the matter, if it is of the opinion that such an offence as contemplated Under Section 195(1)(b) of the Criminal Procedure Code is committed, in respect of a document produced or brought in evidence in a proceeding in the case. It is further submitted that Section 340(1) of the Criminal Procedure Code does not postulate giving of any notice to the person against whom such preliminary enquiry is to be made and that the nature of enquiry being preliminary, the Court has to be only satisfied that there is sufficient ground to make a complaint in respect of the offence committed and, therefore, the contention of the learned counsel for the appellants, that the Court ought to have initiated the proceedings by following procedure Under Section 141 of the Civil Procedure Code, or that a notice ought to have been given to the appellants, cannot be accepted.
9. In this case, the Court has prima facie come to the conclusion that the appellants have committed offences Under Sections 193 to 196, 199 and 200 of the Indian Penal Code read with Sections 463, 464 and 465 of the said Code rand has taken a decision to, make a complaint thereof in writing to the Magistrate of the First Class having jurisdiction. Insofar as the procedure followed, by the Court is concerned, it cannot be defaulted. The contention of the learned counsel for the appellants that Section 340(1) of the Criminal Procedure Code is silent about the procedure to be followed by the Court, cannot be accepted, for the simple reason that Section 340(1) itself provides for the procedure in cases mentioned in Section 195 of the Criminal Procedure Code. It reads as under:
340(1). When, upon an application made to it in this behalf or otherwise, any Court is opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in C1. (b) of subsection (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 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 given evidence before such Magistrate.
A plain reading of Section 340 of the Criminal Procedure Code would show that once a Court decides that the enquiry should be made into any offence referred to under clause (b) of Sub-section (1) of Section 195 of the Criminal Procedure Code, which appears to have been committed in or in rela-tion to the proceedings in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceed-ng in that court, such Court may, after such jreliminary enquiry, if any, as it thinks necessary, take steps as provided. The trial Court, in the present case, on the application being made to it, felt that the matter deserves to be proceeded Under Section 340(1) of the Criminal Procedure Code. In Sub-section (1) of Section 340 of the Criminal Procedure Code, what is contemplated is a preliminary enquiry, and in such an enquiry the only question, which is required to 3e examined, is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the offence referred to in Section 195(1)(b) of the Criminal Procedure Code and also whether it is expedient, in the interest of justice, to take such action. At this stage, the Court is not expected to express any opinion as to the guilt or innocence of the accused. 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 only a preliminary enquiry; and if the Court chooses to take action against the said person, it does not mean that he will nut have full and adequate opportunity to prove his innocence during the trial of the complaint made 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. One can understand if the Court had decided to proceed against the appellants summarily Under Section 344 of the Criminal Procedure Code and in that case, it was obligatory on the Court to have given notice to the appellants as required under the summary procedure for trial for giving false evidence as laid down in Section 344 of the Criminal Proce-'dure Code, because it is only after giving an offender a reasonable opportunity of showing cause Why he should not be punished for such offence, the Court can try such offender summarily and sentence him to imprisonment for a term which may extend to three months or to a fine which may extend to Rs. 500/-, or both. The Court, having chosen to hold preliminary enquiry Under Section 340(1) of the Criminal Procedure Code to determine whether a complaint should be filed against the appellants or not, in its discretion, did not feel it necessary to give notice to the appellants, and this does not, in any manner, vitiate the proceedings.
10. The last contention of the learned counsel for the appellants that a Court dealing with a reference under the Land Acquisition Act is a civil Court and ought to have followed the procedure prescribed by the Civil Procedure Code, and by adopting the procedure Under Section 141 Civil Procedure Code, has nothing to do with a preliminary enquiry contemplated under Sub-section (1) of Section 340 of the Criminal Procedure Code, as the procedure to be adopted for initiation of such proceedings by any Court is the procedure prescribed under Sub-section (1) of Section 340 of the Criminal Procedure Code. So far as adopting of procedure under the Civil Procedure Code is concerned, it has no application to such proceedings. When the law has expressly provided a procedure to be followed by any Court which includes both Civil and Criminal Courts, or any Tribunal exercising the powers of a Court, then to read in it a particular procedure or special procedure would be nothing but misreading a statute.
(Emphasis supplied).
11. Therefore, this Court finds that there is no merit in the appeal. There is prima facie case against the appellants as found by the trial Court, after hodling a preliminary inquiry. In the circumstances, the appeal is dismissed.