Hridayangshu Bhattacharjee vs State Of Jharkhand And Ors.

on 18 July, 2002

Jharkhand High Court

Hridayangshu Bhattacharjee vs State Of Jharkhand And Ors. on 18 July, 2002
Equivalent citations: 2002 (50) BLJR 1831, 2003 CriLJ 624
Author: D N Prasad
Bench: D N 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

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 Hridayangshu Bhattacharjee vs State Of Jharkhand And Ors. on 18 July, 2002

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--

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 Hridayangshu Bhattacharjee vs State Of Jharkhand And Ors. on 18 July, 2002

(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.

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 Hridayangshu Bhattacharjee vs State Of Jharkhand And Ors. on 18 July, 2002

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.

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