The Supreme Court has held that it is not necessary to give an opportunity of being heard to a potential-accused before making a complaint under Section 195/340 of the Code of Criminal Procedure (CrPC).
Justice Sanjay Kishan Kaul, Justice Abhay S. Oka and Justice Vikram Nath was responding to a reference sent by a two-judge bench.
The issues referred to were-
- Whether section 340 of the Code of Criminal Procedure, 1973 provides an opportunity of preliminary inquiry and trial to a potential accused before a complaint is made by a court under section 195 of the Code?
- What is the scope and scope of such preliminary inquiry?
This happened after the bench took note of the contradiction between the decisions of the two three-judge benches. In ‘Pritish v. Government of Maharashtra & Ors (2002) 1 SCC 253’ it was held that the Court is not bound to conduct a preliminary inquiry on a complaint, but if the Court so decides to do so, it shall have a final decision on the facts. Set, which is expedient in the interest of justice, that the offense should be investigated further. In the case ‘Sharad Pawar v Jagmohan Dalmiya (2010) 15 SCC 290’, it was held that it is necessary to conduct a preliminary inquiry as considered under section 340 of CrPC and also to “give opportunity to the respondents to present their case”.
The decision lays down the principles of law; The order is in the given factual scenario Responding to the reference, the bench observed that what has been reported in the ‘Sharad Pawar’ (supra) case is only an order and not a decision.
Court said that an order is in the given factual scenario. The decision lays down the principles of law. The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create a greater volume of reported cases! Thus, there is a possibility of some confusion being created on the prevailing legal principles. The observations in the above cited paragraph were clearly brought out under the order rather than laying down any principle of law and that is why the Bench classified it as a given factual view.
There is no question of opportunity of hearing in such a scenario. Referring to the decision of the Constitution Bench in the case ‘Iqbal Singh Marwah Vs Meenakshi Marwah (2005) 4 SCC 370’, the Bench replied to the reference as follows: “We have no doubt that there is no question of opportunity of hearing in such a scenario and we say nothing but a law propounded by the Constitution Bench in the case ‘Iqbal Singh Marwah (Supra)’ Pritish case ( Interestingly, both the decision of the ‘Pritish’ case and the Constitution Bench’s decision in the ‘Iqbal Singh Marwah’ (supra) case are noted in the order passed in the ‘Sharad Pawar’ (supra) case. The answer to the first question will thus be in the negative. As far as the second question is concerned, the scope and scope of such preliminary inquiry will also be the decision of the Constitution Bench of this Court in the case ‘Iqbal Singh Marwah (Supra)’ has been resolved with reference to the same, as referred to aforesaid.”
Case law: Government of Punjab Vs Jasbir Singh
Written by: Karan Suri
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