Question: If allegations are made against a person (accused) for perjury saying that he submitted false evidence or forged document during judicial proceedings in a court and such court conducts preliminary inquiry under Section 340 of the Criminal Procedure Code for the purpose of filing a criminal complaint before the Magistrate court for production of such false evidence or forged document, does such accused person (who faces such allegations) have a right to be heard in such preliminary inquiry under Section 340 Cr.P.C.?
Answer: Firstly, let me reproduce Section 340 Cr.P.C. for a ready reference:
“340. Procedure in cases mentioned in Section 195.—(1) 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,—
(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, or 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 give evidence before such Magistrate.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195.
(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 1[or by such officer of the Court as the Court may authorise in writing in this behalf.]
(4) In this section, “Court” has the same meaning as in Section 195.”
It should be clear from the above section that a preliminary inquiry is not mandatory under it, since the section uses the language “…such Court may, after such preliminary inquiry, if any, as it thinks necessary…”.
Further, let me point out that the question whether the would-be accused person (who is alleged to have submitted forged document in judicial proceedings) has a right to be afforded an opportunity of being heard and whether he has a right in this regard, is not longer res integra.
In the case of Pritish v. State of Maharashtra, (2002) 1 SCC 253 : 2002 Cri LJ 548 : AIR 2002 SC 236, the Supreme Court has held that during preliminary inquiry under S. 340(1) Cr.P.C. by court into offence committed in relation to a proceeding in that court or in respect of any document produced or given in evidence, the court is not required to afford any opportunity of hearing to the person against whom it might file a complaint before Magistrate for initiating prosecution proceedings.
In fact, in the above case, the Supreme Court held that it is not even mandatory to hold a preliminary inquiry under Section 340(1) Cr.P.C., by observing as under:
“Reading of the sub-section makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.”
The Supreme Court further observed that:
“…there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings.”
“Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. …”.
“Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is incorporated in the scheme of the Code. 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.”
“Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are to be taken before the Magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence affecting administration of justice. … An exercise of the court at that stage is not for finding whether any offence was committed or who committed the same. The scope is confined to see whether the court 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.”
“…The would-be accused is not necessary for the court to decide the question of expediency in the interest of justice that an inquiry should be held. …”.
In view of the above judgment of the Supreme Court, it is not necessary to give an opportunity of being heard to the person under Section 340 of Cr.P.C. against whom an inquiry is held under that provision for perjury for filing a complaint of having submitted forged document or false evidence in court proceedings.
However, of course, once such complaint has been lodged with the Magistrate concerned, the accused will get full opportunity of defence as is given any other accused in any offence during trial for that offence.
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