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Learned counsel for the appellant next contended that the impugned complaint could not have been filed by the State. If at all, any complaint was required to be filed, it could be filed by the Presiding Officer as Section 340 Cr.P.C. clearly contemplates that complaints can be filed by the Presiding Officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf. In the present case, the complaint has been filed by the Ahlmad of the Court and that too using the name of "State". "Ahlmad' of the Court cannot be treated at par with an officer of the Court as specified in Section 340 Cr.P.C.

Taking up the 1st question, it has come on record that no inquiry was conducted before ordering filing of the complaint against the appellants in the present case as per the mandate laid down under section 340 Cr.P.C. Only on the basis of presumption and the fact that the witnesses resiled from their statements and were declared hostile during the course of trial, it was concluded that the appellants have failed to investigate the case in a proper manner and thus have rather acted in an arbitrary and illegal manner. Without there being any evidence of perjury against the appellants, it was concluded by the trial Court that they have fabricated false evidence and record and thereafter presented the same alongwith the challan. In this backdrop, it was held by the trial Court that there is no necessity of conducting a separate inquiry under section 340 Cr.P.C. as both the appellants had been examined in this case.

In my considered opinion the said conclusion drawn by the trial Court under the facts and circumstances of the present case is wishful exaggeration of thought as the bare mandatory provision of Section 340 Cr.P.C. cannot be bypassed on the basis of the same. Merely by ordering institution of a complaint against the appellants without conducting a fact finding inquiry as contemplated under section 340 Cr.P.C., does not meet and satisfy the requirements of the provisions of the said section. The said complaint as per procedure has to go through the rigours of relentless trial where the parties would lead their independent respective evidences and controverting each others' case exhaustively without any reservation. In a regular trial, there is no constraint on a person complained against to have ample opportunity to defend himself and produce all materials to show that no offence as alleged has been committed or made out against him. Asking a person to face criminal trial without affording an opportunity to him in terms of Section 340 Cr.P.C., is not only against the principles of natural justice but also against criminal jurisprudence. The Hon'ble Supreme Court of India in the case of K.Karunakaran vs. T.V. Eachara Warrier and another, AIR 1978 SC 290, it has been held thus:-

Ld. State Counsel as well as the amicus curiae have failed to refute and effectively rebut the very basic ground of attack launched by the appellants' counsel that no procedure, as prescribed under Section 340 Cr.P.C., has been followed in the present case. They have also failed to substantiate the observations of the Trial Court made in the case relating to disproportionate assets of Badal family. There is nothing on record to comprehend that if the alleged acts or omission on the part of the appellants were deliberate and conscious and the State was highly confident of conviction of the appellants in the same, then what stopped the State machinery to proceed in the matter in accordance with the prescribed procedure. The Ld. State Counsel as well as the amicus curie have also failed to bring on record any material to throw light on the fact that the appellants were the sole investigating officers responsible for investigation in the principal case and were not assigned the work and task of supervising the investigation in league with other officers. Even no inquiry as contemplated under Section 340 Cr.P.C. was held to substantiate the veracity of allegations made against the appellants.