The Supreme Court has said that the court is not obliged to make a preliminary inquiry on a complaint, but if the court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that the offence should be further probed into.
A bench of Justices Sanjay Kishan Kaul, Abhay S Oka and Vikram Nath said that a same view was taken in 2003 verdict in ‘Pritish versus State of Maharashtra and Others’ and in 2005 by a five-judge constitution bench verdict in ‘Iqbal Singh Marwah versus Meenakshi Marwah’ case.
The top court was answering a reference made by a two-judge bench of the top court in 2020 after it noticed that a conflicting view had been taken by two three-judge benches and a five-judge constitution bench.
The matter arising from a reference made vide order dated February 26, 2020 seeking answers to two questions was placed before a three-judge bench headed by Justice Kaul.
The first question referred was “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?” The two-judge bench had also sought answers to a second question “what is the scope and ambit of such preliminary inquiry?” The two-judge bench, in its order dated February 26, 2020, while adjudicating a case related to forgery has noticed that in 2003 verdict in ‘Pritish versus State of Maharashtra and Others’ and in 2005 verdict in case of ‘Iqbal Singh Marwah versus Meenakshi Marwah’ by the constitution bench, it was said that the court was not obliged to make preliminary inquiry and an opportunity be given to the accused for being heard.
It had also noted that another three-judge bench in 2010 case of ‘Sharad Pawar versus Jagmohan Dalmiya and Others’, while noting the submissions of the counsels had observed that it was “necessary to conduct” a preliminary inquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the defendants, which was admittedly not done.
The two-judge bench, in its reference order, said this view taken in the 2010 case (Sharad Pawar case) was contrary to the view in Pritish’s case and Iqbal Singh Marwah case.
“On having considered the matter, it is our view that the constitution bench’s view would naturally prevail that makes the legal position quite abundantly clear. Not only that, if we may notice, what is reported in Sharad Pawar’s case is only an order and not a judgment,” the bench said in its September 15 order.
It added, “An order is in the given factual scenario. The judgment lays down the principles of law. The scenario is that any order or judgment passed by this court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent.” The bench said to put the aspect in the right perspective and in sequence, it may note that the first judgment of the three-judge bench was Pritish’s case which noticed that the purpose of a preliminary inquiry under Section 340(1), CrPC was not to find whether a person is guilty or not, but only to decide whether it was expedient in the interest of justice to inquire into the offence.
“It was thus observed that the court is not obliged to make a preliminary inquiry on a complaint, but if the court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that offence should be further probed into,” the bench said.
It added that interestingly, both the judgments in Pritish’s case and the constitution bench judgment in Iqbal Singh Marwah’s case have not been noted in the order passed in Sharad Pawar’s case.
“The answer thus to the first question raised would be in the negative,” the bench said. It added, “We have little doubt that there is no question of opportunity of hearing in a scenario of this nature and we say nothing else, but that a law as enunciated by the constitution bench in Iqbal Singh Marwah’s case is in line with what was observed in Pritish’s case.” It said that 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.
“The reference is answered accordingly,” the bench said.
The two-judge bench of the top court had passed the 2020 order on a plea challenging the High Court verdict granting relief to a man while dealing with an aspect of forgery in a civil case on a reasoning that the FIR which was registered against the accused did not comply with the mandatory requirements of Section 340 read with Section 195 of the CrPC.
The High Court had said that the FIR had been filed without any inquiry and without giving any opportunity to the accused to be heard.