Not Necessary To Give Opportunity Of Hearing To Would-Be Accused Before Court Makes Complaint U/Sec 195/340 CrPC : Supreme Court

The Supreme Court observed that it is not necessary to give an opportunity of hearing to a would- be accused before a complaint is made under Section 195/340 CrPC.

The Three Judges Bench comprising Justices Sanjay Kishan Kaul , Abhay S. Oka and Vikram Nath were answering the reference made to it by a two judges bench. The issues referred were i) 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? (ii) what is the scope and ambit of such preliminary inquiry?

This was after the bench noticed conflict between the view taken by two three judges bench decisions. In Pritish vs. State of Maharashtra & Ors (2002) 1 SCC 253, it was held 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. In Sharad Pawar vs. Jagmohan Dalmiya (2010) 15 SCC 290, it was observed that it is necessary to conduct a preliminary inquiry as contemplated under Section 340 Cr.P.C. and "also to afford an opportunity of being heard to the defendants."

Judgment Lays Down Principles Of Law ; An Order Is In A Given Factual Scenario 

While answering the reference, the bench noted that what is reported in Sharad Pawar's case (supra) is only an order and not a judgment. The court said:

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 observations in the quoted paragraph extracted aforesaid apparently came out of the flow of the order rather than pronouncing any principles of law and that is why the Bench itself categorized what is observed as an order i.e, in the given factual scenario.

no question of opportunity of hearing in a scenario of this nature 

Referring to the judgment of the Constitution Bench in Iqbal Singh Marwah vs. Meenakshi Marwah (2005) 4 SCC 370, the bench answered the reference as follows:

"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 (supra) is in line with what was observed in Pritish'case (supra). Interestingly 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). The answer thus to the first question raised would be 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) as referred to aforesaid."

Case details

Code of Criminal Procedure, 1973 ; Section 195, 340 - Whether Section 340 CrPC mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 CrPC by a Court - There is no question of opportunity of hearing in a scenario of this nature - Scope and ambit of such a preliminary inquiry - Referred to Iqbal Singh Marwah vs. Meenakshi Marwah (2005) 4 SCC 370.

Judgment and Order - 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.

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