Ram Singh vs Jagdish Singh Tanwar

I.S. Tiwana, J. (Oral)

The respondent filed an application under section 340 of the Code of Criminal Procedure (for short the Code) on 23.1.1986 with a request to the Court to launch prosecution against three persons including the petitioner as they had perjured themselves in an earlier civil litigation pending between the parties. The Court without going into the facts or merits of the prayer made, issued a notice to hose persons including the petitioner on the same day i. e. 23 1.1976. The petitioner impugns this order copy of which is Annexure P2 on the records of this case.

The primary submission of Mr. Ashok Aggarwal. The learned counsel for the petitioner, is that as per the requirement of subsection (1) of Section 340 of the Code, the Court must prior to the issuance of the notice to the accused persons satisfy itself, (i) whether an offence of the kind contemplated under the section appears to have been committed and (ii) whether it is expedient in the interest of justice that it should further it be enquired into. In the absence of such a satisfaction, according to the learned counsel, there is no justification with the Court to issue a notice or summons to the persons against whom the application has been filed

In support of this proposition, he squarely relies'' on a judgment of this Court in Criminal Miscellaneous No. 1152M of 1986 (B.S Sandhu v. Rajinder Singh) 1986 (2) Recent Criminal Reports 281 decided on 31.7.1986.

I find considerable merit in the above noted submission of the learned counsel. Though the power to make a preliminary enquiry is in the discretion of the Court yet I am of the opinion, that in the instant case such an enquiry should have been held. It is nobody''s case that during the course of the civil proceedings, referred to above, the Civil Court had found that any prima facie case had been made out against the petitioner or his two co accused. Had there been such a finding, the holding of the preliminary'' enquiry could possibly be obviated. Since, in the case in hand an application has been made by the respondent, a private person, the Court would have been well advised to direct him to place before it the facts and circumstances which could possibly satisfy the learned Magistrate about the desirability of the launching of the prosecution against the petitioner and his associates. In the absence of any such material having been placed before the Court, it to my mind was not justified in issuing any notice to the accused of course. The nature, method and, extent of the enquiry was again entirely within the discretion of the Court. The applicant, who is present in person, says that as a matter of fact the lower Court has itself modified the summoning order i.e., the impugned order vide its order dated 9. 9 1986 and no notice or summons is being issued to the petitioner and to the others at the moment. Be that as it may, the fact remains that the impugned order was passed by the lower Court mechanically and without taking notice of the provisions of subsection (1) of section 340 or the Code, referred to above.

In the light of the discussion above, the impugned order annexure P2 is set aside. For clarity sake, it is mentioned here that the passing of this order does not in any way debar the lower Court from proceeding ''with the application filed by the respondent in accordance with law.