THE STATE OF PUNJAB vs. JASBIR SINGH

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.335 OF 2020 THE STATE OF PUNJAB ...APPELLANT VERSUS JASBIR SINGH …RESPONDENT J U D G M E N T MOHAN M. SHANTANAGOUDAR, J. 1. The judgment dated 22.01.2019 passed by the High Court of Punjab and Haryana at Chandigarh in CRM-M No. 24691/2009 (O&M), which quashed FIR No. 74 dated 13.4.2008 registered against the Respondent herein for the offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (“IPC”), has been called into question in this appeal. Signature Not Verified 2. The First Information Report (“FIR”) against the Digitally signed by GULSHAN KUMAR ARORA Date: 2020.02.26 18:15:45 IST Reason: Respondent was registered under Sections 420, 467, 468 and 1 471 of the IPC on the allegation that he had forged and fabricated documents submitted in the course of legal proceedings before the Revenue Courts. The relevant facts for the purpose of the present appeal are as follows: 2.1 The Respondent’s mother, Karamjit Kaur, had filed an application in Tehsil Patti, District Tarn Taran seeking transfer of the subject property in her name on the basis of possession. Vide order dated 28.06.2002, the Tehsildar (Sales) allowed this application, directing conveyance in favour of Karamjit Kaur. Meanwhile, in the year 2005, the Respondent filed a suit for declaration that the subject property was owned by him, which is still pending. 2.2 Later, in the year 2006, the Respondent filed an appeal against the order of the Tehsildar (Sales), claiming that such order was based on an incorrect finding that the application was filed only by his mother, while it had actually been made jointly. 2.3 Furthermore, in parallel mutation proceedings, the Respondent got the subject land mutated in his favour along with his two cousins. In appeal, the Sub-Divisional Magistrate- cum-Collector, Patti declared the mutation as contested, and 2 vide order dated 11.12.2006, mutation was sanctioned in favour of Tarjit Kaur, the elder sister-in-law of the Respondent. The appeal filed by the Respondent against such order was dismissed vide order dated 06.06.2007. 2.4 On 29.08.2007, the SDM-cum-Sales Commissioner, Patti set aside the order of the Tehsildar (Sales) dated 28.06.2002, directing that the transfer of land be entered jointly in the names of the Respondent and his mother. This was done on the basis of a report submitted by the Tehsildar, Patti stating that the initial application for transfer of land had been made jointly by these two persons. In appeal, the Deputy Commissioner-cum-Chief Sales Commissioner, Tarn Taran restored the initial order dated 28.06.2002 passed by the Tehsildar (Sales), noting that the Respondent had submitted forged and fabricated documents in connivance with the Tehsil staff in the appeal before the SDM-cum-Sales Commissioner. Thus, the order dated 29.08.2007 was set aside and a direction was issued to the Sub-Divisional Magistrate, Patti to immediately get an FIR registered against the Respondent. 2.5 In pursuance of the said order, the Sub-Divisional Magistrate, Patti addressed a communication dated 11.04.2008 3 to the SHO, Police Station, Patti on the basis of which the FIR in question was registered against the Respondent. The trial commenced after the filing of the chargesheet. During the trial, a petition was filed by the Respondent under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”) seeking quashing of the proceedings, which has been allowed vide the impugned order. 3. The High Court, while passing the impugned order, principally accepted the ground raised by the Respondent that the Deputy Commissioner-cum-Chief Sales Commissioner hearing the appeal had neither held an inquiry, nor had he directed the subordinate authority to hold any such inquiry against the accused, in terms of Section 340 read with Section 195 of the CrPC. Thus, it was held that the FIR was hit by these provisions, since it had been filed without any inquiry and without giving any opportunity to the Respondent to be heard, and was therefore liable to be quashed. 4. Heard learned Counsel for the parties. 5. Ms. Uttara Babbar, learned counsel appearing for the State has taken us through the material on record, and referred us to the provisions of Section 195 and Section 340 of the CrPC 4 to contend that it is not mandatory on the part of the Court to make a preliminary inquiry under Section 340 before filing a complaint under Section 195; the Court is not required to afford an opportunity of hearing to the person against whom a complaint is filed before the Magistrate for initiating prosecution proceedings; and that Section 340 does not indicate that such person has any right to participate in the preliminary inquiry. In support of these contentions, she relied upon the judgments in Pritish v. State of Maharashtra , (2002) 1 SCC 253, decided by a three-Judge Bench of this Court, and of a two-Judge Bench in Amarsang Nathaji v. Hardik Harshadbhai Patel , (2017) 1 SCC 113. Also drawing our attention to the another judgment decided by a three-Judge Bench of this Court in Sharad Pawar v. Jagmohan Dalmiya , (2010) 15 SCC 290, she submitted that no dictum can be said to be have been laid down in the said judgment as it was passed sub silentio, having assigned no reasons to come to the conclusion that a preliminary inquiry is mandatory under Section 340, contrary to the dictum of Pritish (supra). 6. Per contra, learned counsel for the Respondent argued in support of the judgment of the High Court. 5 7. In view of the arguments advanced and the material on record, the only question to be considered in this matter is as under: Whether the Court should have heard the Respondent and given him an opportunity to have a say in the matter before ordering prosecution under Section 195 of the CrPC? 8. In this regard, it is pertinent to note Section 195(1)(b) (ii) of the CrPC, which provides that no Court shall take cognizance of any offence mentioned therein, if committed in respect of a document produced or given in evidence in a proceeding in any Court:

9. We may also note that Section 195(3) of the CrPC clarifies that the term “Court” means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under 6 a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of the said section. 10. In the instant case, it is not in dispute that the Deputy Commissioner-cum-Chief Sales Commissioner, as well as the Sales Commissioner, Patti were discharging their duties as Revenue Courts. It is further not in dispute that the criminal proceedings instituted against the Respondent fell within the scope of Section 195(1)(b)(ii), as they pertained to offences under Sections 420, 467, 468 and 471 of the IPC. Essentially then, the controversy pertains to compliance with Section 340 of the CrPC, which lays down the procedure to be followed while making a complaint with respect to an offence as mentioned in Section 195. In this regard, it may be useful to note the wording of Section 340(1): “(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, 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; 7 (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.” (emphasis supplied) 11. A bare reading of Section 340 reveals that if the Court is of the opinion 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 proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and thereafter make a complaint thereof in writing. Upon a plain reading of this provision, it is clear that it is open for the Court to conduct (or not to conduct) a preliminary inquiry into the matter before lodging a complaint in respect of an offence mentioned in Section 195(1)(b). Indeed, a three-Judge Bench of this Court in Pritish (supra) dealing with the question in consideration here, held that an opportunity to the would-be accused before the filing of 8 the complaint was not mandatory, and observed that the preliminary inquiry was itself not mandatory. The Court observed thus:

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(emphasis supplied) 12. However, in the subsequent decision in Sharad Pawar (supra), while dealing with a similar question, a three- Judge Bench of this Court did not take note of the dictum in Pritish (supra) and went on to observe as follows: “ 7. Having heard the learned Senior Counsel for both sides and after perusal of the record, we are of the considered view that before giving a direction to filed complaint against Defendants 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. 8. We, therefore, in the interest of justice, allow these appeals, set aside the impugned order of the High Court passed in the application filed by Respondent 1-plaintiff under Section 340 CrPC and remit the matter to the learned Single Judge to 12 decide the application under Section 340 CrPC afresh in accordance with law, and after affording reasonable opportunity of being heard to the defendants, against whom the learned Single Judge ordered enquiry.” 13. Later, the judgment in Pritish (supra) came to be relied upon by a two-Judge Bench of this Court in Amarsang Nathaji (supra). While dealing with the propriety of the procedure adopted by the Court making a complaint under Section 340 of the Code, the Bench in Amarsang Nathaji observed as follows:

In the same decision, the Court also took note of the following observations made by a Constitution Bench of this 13

4 SCC 370 in relation to the scope of Section 340 of the CrPC:

(emphasis supplied) Notably, however, the decision in Amarsang Nathaji did not take note of the contrary observations made in Sharad Pawar (supra). 14 14. In any event, given 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: (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? 15. Accordingly, we direct the Registry to place the papers before the Hon’ble Chief Justice for appropriate orders. ……………………………………………J. (ASHOK BHUSHAN) ……………………………………………J. (MOHAN M. SHANTANAGOUDAR) NEW DELHI FEBRUARY 26, 2020 15