340 explainantion

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A Preliminary Inquiry Under Section 340 Crpc: Mandatory Or Discretionary?

Wasim Beg, Muneeb Rashid Malik And Vidushi Pandey
29 Sept 2022 3:40 PM
Section 195 of the Code of Criminal Procedure, 1973 ("CrPC") bars the court from taking cognizance of
offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the
public servant concerned or of some other public servant to which he is administratively subordinate. The bar
provided under Section 195 CrPC is not intended to take away the remedy against a crime but only to protect an
innocent person against false or frivolous proceedings by a private person[1]. The procedure to be followed in
such cases, where the court desires to initiate prosecution in respect of the offence(s) committed during, or in
relation to, a proceeding before itself, is provided under Section 340 CrPC.
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The object of Section 340 CrPC is to ascertain whether any offence affecting administration of justice has been
committed in relation to any proceedings before or any document produced/ given in evidence in court, during
the time when the document or evidence was in custodia legis and whether it is also expedient in the interest of
justice to take such action[2].
Section 195 CrPC provides the mandatory pre-requisites, before a court can take cognizance of the offences
specified therein. The procedure to be followed in such cases, where the Court desires to initiate prosecution in
respect of the offence(s) committed during, or in relation to, a proceeding before itself, is provided under
Section 340 CrPC. As per the Hon'ble Supreme Court[3], there are two pre-conditions for initiating proceedings
under Section 340 CrPC: Firstly, the material produced before the court must establish a prima facie case for a
complaint for the purpose of inquiry into an offence referred to in clause (b)(i) of sub-section (1) of Section 195
CrPC which states "of any offence punishable under any of the following sections of the Indian Penal Code (45
of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when
such offence is alleged to have been committed in, or in relation to, any proceeding in any Court," and
secondly, it is expedient in the interests of justice that an inquiry should be made into the alleged offence.
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Preliminary Inquiry
The object of preliminary inquiry stipulated under Section 340 CrPC is only to determine whether it is
expedient, in the interest of justice, to inquire into the offence based on the materials available before the court.
In Iqbal Singh Marwah v. Meenakshi Marwah[4] the Supreme Court observed that in view of the language
used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence
referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is
expedient in the interests of justice', which also goes on to show the intention of the legislature while framing
the section. This expediency will normally be judged by the court by weighing not the magnitude of injury
suffered by the person affected by such forgery or forged document, but having regard to the effect or impact,
such commission of offence has upon administration of justice.
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Further, Section 340 CrPC confers only a discretionary power[5] on the court to conduct a preliminary inquiry
for such determination. However, where a court is otherwise in a position to form an opinion regarding the
initiation of proceedings/ making complaint in terms of Section 340 CrPC, the court may dispense with the
preliminary inquiry.
Under such cases, mere absence of any preliminary inquiry would not vitiate a finding reached by the court
regarding its opinion. In this regard, the Hon'ble Supreme Court in Pritish v. State of Maharashtra & Ors.
[6], has held that the procedure of preliminary inquiry envisaged under Section 340 CrPC is not meant to decide
the guilt or innocence of the party against whom proceedings are to be taken before the magistrate. The Court
held that the scope of such proceeding is confined to see whether, based on the material available, it is
expedient in the interest of justice that an inquiry be made.
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However, contrary to its previous judgment in Pritish v. State of Maharashtra & Ors., the Hon'ble Supreme
Court vide an order passed in Sharad Pawar v. Jagmohan Dalmiya[7], remanded the matter to the Hon'ble High
Court of Calcutta to decide the application under Section 340 CrPC afresh, after affording reasonable
opportunity of being heard to the defendants, against whom the learned Single Judge ordered an inquiry. The
Supreme Court in the instant case held that "before giving a direction to file a complaint against Defendants
Nos. 1 to 6, it was necessary for the learned Single Judge to conduct a preliminary enquiry as contemplated
under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was
admittedly not done."
Pertinently, the order was passed by the Hon'ble Supreme Court without considering its previous judgment
in Pritish (supra) as the Court neither discussed the provisions of law nor delved into the purpose and object of
the provisions under Section 340 CrPC. Accordingly, the correctness and precedential value of the observations
made therein seem to be problematic, especially when the provisions of Section 340 CrPC itself confer a
discretion to the Court to hold a preliminary inquiry, purpose of which is only to form a prima facie opinion for
making/ referring a compliant to the concerned Magistrate.
Recently, the Supreme Court has put the matter to rest by holding that the law as enunciated by the Constitution
Bench in Iqbal Singh Marwah's case (supra) is in line with what was observed in Pritish'case (supra).
THE SUBSEQUENT IMPACT OF PRELIMINARY INQUIRY AND THE PRINCIPLE OF AUDI

ALTERAM PARTEM
In Sharad Pawar (supra), the Court held that in terms of Section 195(1)(b) / 340 CrPC, the "would-be accused"
must be afforded an opportunity of being heard before any complaint is made to the Magistrate in terms of the
said provision(s). However, such finding is based on a flawed understanding of the provisions of Section 340
CrPC, and the purpose of inquiry contemplated therein as such proceedings are meant only to form an opinion
regarding making a formal complaint to the concerned magistrate. It is quite understandable as well as legal that
a person against whom such preliminary inquiry is conducted/ "would-be accused" should not have a right to
seek an audience before the Court at such a stage.
Clearly, such a preliminary inquiry is not meant to establish guilt or innocence of a person.
Therefore, it cannot be said to be a violation of any right to be heard (audi alteram partem). In fact, it is only
when, once such a complaint is made and the magistrate calls such person as an accused to appear before him,
the legal right to be heard accrues on him. The rule of audi alteram partem is a rule of justice and its application
is excluded where the rule will itself lead to injustice. The Madras High Court in M. Muthuswamy v. Special
Police Establishment[8] held that persons against whom proceedings were instituted have no such right to
participate in the preliminary inquiry.
S.A. Smith Judicial Review of Administrative Action,[9] states that in administrative law, prima facie right to
prior notice and opportunity to be heard may be held to be excluded by implication in the presence of some
factors, singly or in combination with another.
Thus, there is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be
inferred by not affording an opportunity to the accused to forth his stance[10]. This rule cannot be applied to
defeat the ends of justice or to make the law "lifeless, absurd, stultifying and self-defeating or plainly contrary
to the common sense of the situation" and this rule may be jettisoned in very exceptional circumstances where
compulsive necessity so demands.
The Supreme Court in Union of India v. W.N. Chadha[11], clearly spelt out this principle by holding that - "If
prior notice and an opportunity of hearing are to be given to an Accused in every criminal case before taking
any action against him, such a procedure would frustrate the proceedings, obstruct the taking of prompt action
as law demands, defeat the ends of justice and make the provisions of law relating to the investigation lifeless,
absurd and self-defeating. Further, the scheme of the relevant statutory provisions relating to the procedure of
investigation does not attract such a course in the absence of any statutory obligation to the contrary."
A clear parallel can be drawn between Section 156(3) and Section 340 of the CrPC with regard to the right to be
heard of a "would-be accused" at a pre-trial stage. A Full Bench of the Allahabad High Court in the case
of Father Thomas v. State of U.P.[12], held that a prospective accused had no locus standi to challenge a
direction for investigation under Section 156(3) Cr.P.C by filing a revision petition before cognizance or
issuance of process against him. The court noted that the accused had a right to raise his defense only during
trial and even on filing of complaint, when the magistrate proceeds to take cognizance, the prospective accused
cannot intervene or raise his defense unless summons are issued. Similarly, under Section 340 CrPC, the right to
be heard of an accused is not violated since the objective behind this section is only to give the courts a
discretion to conduct a preliminary inquiry if it deems necessary and, not to give a final judgment.
Use Of The Word 'May'
The above discussion brings us to the question on the interpretation of the word 'may' used in Section 340
CrPC. The word 'may' and 'shall' have always been contentious issues in various enactments and legal
documents. This is because in some circumstances the word 'may' has been treated as mandatory like 'shall'.
Whereas in some circumstances even the word 'shall' has not been used as mandatory and has been treated like
the use of the word 'may'. Thus, an understanding of the interpretation of the words "may" and "shall" as per
Indian Law is very important in understanding Section 340 of CrPC as well as its object.
In "Crawford on the Construction of Statutes[13]", it is stated:
"The question as to whether a statute is mandatory, or directory depends upon the intent of the Legislature and
not upon the language in which the intent is clothed. The meaning and intention of the Legislature must
govern, and these are to be ascertained, not only from the phraseology of the provision, but also by
considering its nature, its design, and the consequences which would follow from construing it the one way
or the other…"
In Padma Sundara Rao (Dead) and others v. State of T.N. and Others,[14] the Supreme Court held that Courts
cannot read into a statutory provision which is clear and unambiguous.
In B. Premanand and Ors. v. Mohan Koikal and Ors.,[15] the Supreme Court held that literal construction is
the thumb rule, and it is only in case where a literal interpretation would lead to absurdity then only any other
mode of interpretation, including a purposive one, can be resorted to.
Going by the literal rule of Interpretation of Statutes, the intent behind Section 340 CrPC seems unambiguous,
i.e., to give the power to the Courts to decide if a preliminary inquiry is necessary and keep this as a non-
mandatory provision by using the word "may". The courts have also upheld this view in various decisions such
as in the decision of Madan Lal Sharma v. Punjab and Haryana High Court Through its
Registrar[16] wherein it is held as follows: -
"A reading of S.340 Cr.P.C., shows that the Court is empowered to make such preliminary inquiry as it thinks
necessary. The Section does not envisage hearing of the Accused before filing a complaint. It is always open to
the Accused to raise all the defences that are open to him under Law before the Magistrate in whose Court the
complaint has been filed."
The provisions of Section 340 CrPC itself confers discretion to the court to hold preliminary inquiry, purpose of
which is only to form a prima facie opinion for making/ referring a compliant to the concerned magistrate.
Accordingly, the Hon'ble Supreme Court held, "Principles of natural justice would not be hampered by not
hearing the person concerned at the stage of deciding whether such person should be proceeded against or
not."[17]
Following the above precedence, the Hon'ble Punjab and Haryana High Court in Devinder Mohan Zakhmi v.
Amritsar Improvement Trust[18], held that the entertainment of the application of the person against whom
preliminary inquiry is initiated under Section 340 CrPC to enable such person to produce evidence in defence at
said inquiry stage, is against the mandate of law. Several Courts[19], subsequently, have consistently held that
Section 340 CrPC does not envisage hearing of the would-be accused, before filing of compliant.
The Supreme Court in the State of Punjab v. Jasbir Singh[20] held:
"That the decision of the three Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was
departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a
preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of
this Court in Iqbal Singh Marwah (supra) we find it necessary that the present matter be placed before a larger
Bench for its consideration, particularly to answer the following questions:
Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry
and an opportunity of hearing to the would-be Accused before a complaint is made under
Section 195 of the Code by a Court?
What is the scope and ambit of such preliminary inquiry?
Recently, the Supreme Court answered the above reference by holding that the law as enunciated by the
Constitution Bench in Iqbal Singh Marwah vs. Meenakshi Marwah (2005) 4 SCC 370 is in line with what was
observed in Pritish case (supra). The Bench held that both the judgments in Pritish's case and the Constitution
Bench judgment in Iqbal Singh Marwah's case (supra) have not been noted in order passed in Sharad Pawar's
Case (supra). Therefore, the Supreme Court held that the answer to the question as to "whether Section 340 of
the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the
would-be Accused before a complaint is made under Section 195 of the Code by a Court" is in the negative.
Insofar as the second question is concerned, the scope and ambit of such a preliminary inquiry, also stands
resolved in terms of the Constitution Bench judgment of this Court in the Iqbal Singh Marwah's case (supra).
In the conspectus of the above discussion, it can be inferred that the court may order prosecution in terms of
Section 340 CrPC only in the larger interest of the administration of justice and not to gratify the feelings of
personal revenge or vindictiveness or to serve the ends of a private party. The preliminary enquiry, as can be
inferred from the above discussion, is not mandatory as held by the Supreme Court. Keeping in view the
language used in Section 340 CrPC, the court is not bound to make a complaint regarding the commission of an
offence as the section is conditioned by the words "court is of opinion that it is expedient in the interests of
justice" which clearly shows that the legislature has intentionally granted a discretion to the courts while
ordering a preliminary inquiry under Section 340 CrPC. Further, when a preliminary enquiry is meant only to
form an opinion regarding making of formal complaint to the concerned magistrate, it is quite understandable
that a person against whom such preliminary inquiry is conducted/ "would-be accused" should not have a right
to seek audience before court at such stage. Clearly, such preliminary inquiry is meant not to establish guilt or
innocence of such person and is not violative of the right to be heard of an accused. The Supreme Court has
finally put the matter to rest which is a step in the right direction.
Authors: : Wasim Beg (Partner), Muneeb Rashid Malik (Associate) and Vidushi Pandey (Intern) At Luthra
And Luthra Law Offices India. Views are personal.
[1] CBI v. M. Sivamani, (2017) 14 SCC 855
[2] Narendra Kumar Srivastava v. State of Bihar, (2019) 3 SCC 318
[3] Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113
[4] (2005) 4 SCC 370
[5] Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113
[6] (2002) 1 SCC 253
[7] (2010) 15 SCC 290
[8] 1984 SCC OnLine Mad 158.
[9] 4th Edition, Stanley A, De Smith, Evans J.M., Stevens and Sons Ltd. (1980).
[10] Union of India v. W.N. Chadha 1993 Supp (4) SCC 260.
[11] 1993 Supp (4) SCC 260.
[12] 2011 (2) ALJ 217.
[13] Earl T. Crawford, Thomas Law Book Company (1940).
[14] 2002 (3) SCC 533
[15] AIR 2011 SC 1925
[16] 2000 CRI.L. J 1512
[17] Pritish v. State of Maharashtra, (2002) 1 SCC 253
[18] 2002 SCC OnLine P&H 439
[19] Union of India v. Haresh Virumal Milani, (2017) 4 Mah LJ 441 and Gurpreet Singh Kang v. Gurpartap
Singh, 2013 SCC OnLine P&H 6599
[20] (2020) 12 SCC 96.

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19/06/2024, 20:52 Implications Of Draft Prudential Framework For Income Recognition, Asset Classification And Provisioning Pertaining To Advances…

A Preliminary Inquiry Under Section 340 Crpc: Mandatory Or Discretionary?

Also Read - The Power Of Community Mediation

THE SUBSEQUENT IMPACT OF PRELIMINARY INQUIRY AND THE PRINCIPLE OF AUDI

Use Of The Word 'May'

In "Crawford on the Construction of Statutes[13]", it is stated:

The Supreme Court in the State of Punjab v. Jasbir Singh[20] held:

What is the scope and ambit of such preliminary inquiry?

[1] CBI v. M. Sivamani, (2017) 14 SCC 855

[2] Narendra Kumar Srivastava v. State of Bihar, (2019) 3 SCC 318

[3] Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

[4] (2005) 4 SCC 370

[5] Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113

[6] (2002) 1 SCC 253

[7] (2010) 15 SCC 290

[8] 1984 SCC OnLine Mad 158.

[11] 1993 Supp (4) SCC 260.

[12] 2011 (2) ALJ 217.

[13] Earl T. Crawford, Thomas Law Book Company (1940).

[14] 2002 (3) SCC 533

[15] AIR 2011 SC 1925

[16] 2000 CRI.L. J 1512

[17] Pritish v. State of Maharashtra, (2002) 1 SCC 253

[18] 2002 SCC OnLine P&H 439

[20] (2020) 12 SCC 96.

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