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4. Learned A.P.P. urged before me that the notice under Section 340(1) of Criminal Procedure Code to the affected party is mandatory. Section 340 of Criminal Procedure Code reads as under :--

"340. Procedure in cases mentioned in Section 195 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 -
(3) A complaint made under this section shall be signed, --
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in Section 195.
Section 341 of Criminal Procedure Code provides for appeal and reads as under:--
"341. Appeal. -- (1) Any person on whose application any Court other than a High Court has refused to make a complaint under Sub-section (1) or Sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal, to the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195 and the superior Court may thereupon, after notice to the parties Concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under Section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section, and subject to any such order, an order under Section 340, shall be final, and shall not be subject to revision."

Proceedings under Section 340 can be initiated on an application made to the Court or the same can be initiated suo motu by the Court if the Court is of the opinion that it is an expedient in the interests of justice that an enquiry should be made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 of Criminal Procedure Code which appears to have been committed or in relation to the proceedings in that Court. There is no restriction as to the persons by whom an application can be made and an application under Section 340 can be made even by an Advocate. It has been held by this Court in Bhagwandas Narandas v. D.D. Patel and Company reported in AIR 1940 Bombay 131 that even a stranger to the proceedings during which offence is committed can apply under Section 476 of Criminal Procedure Code (Old) (which now corresponds to Section 340 of Criminal Procedure Code).

Though Section 340 does not speak of any notice and provides for preliminary inquiry, if any, yet the principles of natural justice do require that a reasonable opportunity by issuing show cause notice should be given before coming to final conclusion for prosecution in terms of Section 340(1) of Criminal Procedure Code. The Apex Court has also laid down that such opportunity should be given.

9. In the case under consideration an application under Section 340 had been filed by the original accused namely respondent No. 3 under Section 340. The Magistrate had dismissed the said application without giving any notice to the applicant and respondent No. 2. Though it is stated by the Advocates for the applicant and respondent No. 2 that no notice was given by the Sessions Judge yet, the record of the Criminal Appeal No. 16 of 1982 shows that notices were in fact issued, but the applicants have not remained present. Therefore, in the facts and circumstances, there is no merit in the first contention of the learned Advocate for the applicant.