State of Goa vs Jose Maria Albert Vales

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 1427-1428 OF 2017 [ARISING OUT OF S.L.P.(CRL.) Nos. 122-123 OF 2016]

STATE OF GOA …APPELLANT

VERSUS

JOSE MARIA ALBERT VALES @ ROBERT VALES …RESPONDENT

JUDGMENT

AMITAVA ROY, J.

1. Leave granted

2. The instant assailment of the judgment and order

dated 05.03.2013 seeks to annul this verdict of the High

Court whereby the charge framed by the Trial Magistrate

against the respondent under Section 193 of the Indian

Penal Code (for short hereafter to be referred to as the “IPC”)

has been set aside, having been held to be prematured and

Signature Not Verified in violation of the procedure prescribed by Section 244 of the Digitally signed by BALA PARVATHI Date: 2017.08.19 Code of Criminal Procedure, 1973 (for short, hereafter to be 14:16:43 IST Reason:

referred to as the “Cr.P.C./Code”), as all evidence on behalf 2

of the prosecution had not been adduced, the case being one

registered on a complaint under Section 340 Cr.P.C. and

thus otherwise than on police report and the Trial Magistrate

has been directed to examine the remaining witnesses of the

prosecution and thereafter decide as to whether any case

had been made out against the respondent for framing of

charge.

3. The appellant/State, being aggrieved, has questioned

the legality and correctness of this view contending in

substance that in terms of Section 343 Cr.P.C., the case

though registered on a complaint under Section 340 thereof,

was to be dealt with as if instituted on a police report for

which the rigour of the procedure under Section 244 of

Cr.P.C. was inapplicable.

4. The legal issue raised, being of significant moment

and consequence in the context of day to day adjudicative

relevance, merits a riveted attention.

5. We have heard Mr. Pratap Venugopal, learned counsel

for the appellant and Mr. Trideep Pais, learned counsel for

the respondent.

3

6. The factual conspectus is on a limited canvas. It is a

matter of record that in Sessions Case No.18/2000 - titled

State vs. Srikar Naik Kurade and others, under Sections

120B and 302 IPC along with Section 25 of the Arms Act,

1959 tried by the Court of Sessions, Margao, the respondent

was a witness cited by the prosecution. Before his deposition

on oath at the trial, his statement was recorded under

Section 164 Cr.P.C. by the concerned Magistrate. While

testifying in the session’s trial, he resiled from this statement

so much so that the Sessions Court was of the view that the

respondent along with two other witnesses, who had

similarly retracted from their earlier statements under

Section 164 Cr.P.C. had tendered false evidence warranting

initiation of a proceeding for the offence under Section 193

IPC. Accordingly, however without conducting any inquiry as

permissible under Section 340 Cr.P.C., and in view of the

prima facie satisfaction that the respondent and the other

two witnesses have deliberately made contradictory

statements on oath in order to screen and/or favour the

accused in the session’s trial, the Sessions Court by order

dated 14.08.2003 directed that they be prosecuted by filing 4

separate complaints against them under Section 193 IPC.

While adopting this course, the Sessions Court recorded that

it was not peremptory to hold an inquiry under Section

340(1) Cr.P.C.

7. Accordingly, a complaint was filed on 29.11.2003

under Section 193 IPC against the respondent by the District

and Sessions Judge, Margao which was registered as

Criminal Case No.380/5/2003/III in the Court of the Chief

Judicial Magistrate at Margao.

8. The above facts were set out in the complaint with the

elaboration that the statement of the respondent under

Section 164 Cr.P.C. was recorded by the learned Magistrate

on 18.02.2000 whereas his deposition as PW-22 in the

Sessions Case was scripted on 10.10.2002 in course whereof

he was declared hostile and was cross-examined by the

prosecution. The complaint did set out one set of such

irreconcilable versions to highlight the perceived blatant

falsehood deliberately resorted to by the witness for helping

the accused to escape punishment. The document cited six

witnesses understandably in addition to the complainant. 5

9. In the proceedings that followed, the prosecution

examined three witnesses from the list apart from the

Additional Sessions Judge who had presided over the

session’s trial, who were duly cross-examined on behalf of

the respondent whereafter the learned Magistrate instead of

insisting on the examination of the remaining witnesses in

the list, framed charge against the respondent under Section

193 IPC.

10. On 02.07.2008, the application filed by the

respondent before the Trial Magistrate for dropping of the

proceedings against him having been rejected, he

unsuccessfully filed a revision in the Court of the Sessions

Judge, whereafter he took the challenge to the High Court.

By the impugned order, as aforementioned, the High Court

has quashed the charge framed against the respondent

proceeding on the premise that the case was one instituted

otherwise than on the basis of police report and the offence

being triable by warrant procedure, a rigid compliance of

Section 244 Cr.P.C. was called for. The charge framed by the

Trial Magistrate was held to be unjustified and prematured

and after quashing the same, it has directed the Trial Court 6

to follow the procedure under Section 244 Cr.P.C., by

examining the remaining witnesses of the prosecution and

thereafter to decide whether any case had been made out for

framing of charge against the respondent. The application

filed by the prosecution seeking a review or recall of this

order by the High Court, filed belatedly was however rejected,

there being no clerical mistake or any justification to invoke

the inherent powers under Section 482 of the Cr.P.C.

11. The learned counsel for the appellant/State, referring

to Section 343(1) Cr.P.C. in particular, has urged that the

High Court had fallen in error in interfering with the charge

framed against the respondent on the presupposition that

the procedure prescribed by Section 244 Cr.P.C. with full

rigidity was applicable to the case in hand. It has been

argued that in terms of Section 343(1), a Magistrate to whom

a complaint is made under Section 340 or Section 341,

notwithstanding anything contained in Chapter XV of the

Cr.P.C., is required to deal with the case, as if it was

instituted on a police report and thus vis-à-vis the offences

mentioned in Section 195 of Cr.P.C., the Magistrate, on

receiving the complaint, has to deal with it under Sections 7 238 to 243 Cr.P.C. as if it were instituted on police report to

which warrant procedure was applicable. Qua the delay in

filing the Special Leave Petition, it has been urged that

having regard to the importance of the legal issue involved as

well as the explanation provided, it ought to be condoned.

Reliance has been placed on the decisions of this Court in

Pritish Vs. State of Maharashtra and others1 and

Amarsang Nathaji Vs. Hardik Harshadbhai Patel and

others2.

12. Per contra, the learned counsel for the respondent

has argued that having regard to the text of Section 343(1)

Cr.P.C. and more particularly the words “as far as may be”,

the plea that every case registered on a complaint under

Section 340 or Section 341 Cr.P.C. ought to be proceeded

with as one instituted on police report under Chapter XIX-A

i.e. as per the procedure laid down in Sections 238 to 243 is

patently flawed. While endorsing the view taken by the High

Court, it has been asserted that the decisions cited on behalf

1

(2002) 1 SCC 253

2 (2017) 1 SCC 113 8

of the prosecution in support of the contention of

applicability of Chapter XIX-A Cr.P.C. are distinguishable.

According to the learned counsel in the face of the inbuilt

flexibility ingrained in Section 343(1) Cr.P.C. as is apparent

from the words “as far as may be” used in the text thereof, it

is palpably erroneous to contend that a case contemplated

therein would have to be invariably dealt with as one

instituted on a police report. Drawing sustenance from the

decision of the Bombay High Court in Godrej & Boyce

Manufacturing Co. Pvt. Ltd. vs. Union of India & Ors.3,

dwelling on the purport of the words “as far as may be”, it

has been urged that thereby the learned Magistrate was

permitted to adopt the procedure envisaged in Section 244

Cr.P.C.. Contending that the present is a case principally

founded on the statements of the complainant and the

learned Public Prosecutor in particular and that out of the

cited witnesses three of them have already been examined, it

ought to be proceeded with as one instituted otherwise than

on police report in accordance with the mandate of Section

244 Cr.P.C. Further the delay of 896 days in filing the

present appeal apart from being inordinate has remained 3 1992 Crl.L.J. 3752 9

unexplained for which it is liable to be dismissed in limine

on this count alone.

13. We have extended our cautious attention to the

contentious assertions as well as the materials

presently available on record. Having regard to the

inter se bearing of the cognate provisions of the Code,

decisively relevant to address the issue, an overview

thereof, is indispensable. The expressions “complaint”,

“inquiry”, “investigation”, “police report”,

“summons-case” and “warrant-case” are defined in

Sections 2(d), 2(g), 2(h), 2(r), 2(w) and 2(x) of the Code

respectively and are extracted hereinbelow for

immediate reference:

(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.

Explanation.-A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by 10

whom such report is made shall be deemed to be the complainant.

(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

(r) "police report" means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;

(w) "summons-case" means a case relating to an offence, and not being a warrant-case;

(x) "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

14. As would be evident from the definitions recited, a

“complaint” is an allegation made orally or in writing to

a Magistrate with a view to take action under the Code

against some person, known or unknown, who had

committed an offence and does not include a police

report. In contradistinction, “police report” means a 11

report forwarded by a police officer to a Magistrate

under Section 173(2), whereas “warrant case” is one

relatable to an offence punishable with death,

imprisonment for life or punishment for a term

exceeding two years, a “summons-case” is one qua an

offence which is not a “warrant-case”. A clear cut

distinction, therefore, has been ordained by the Code

between a “complaint” and a “police report” as well as a

“warrant-case” and a “summons-case”.

15. Notably, “inquiry” means every inquiry other

than a trial conducted under the Code by a Magistrate

or Court. Distinguished from “inquiry”, which is to be

undertaken by a Magistrate or a Court, as prescribed,

“investigation” includes all proceedings under the Code

for the collection of evidence conducted by a police

officer or by any person (other than a Magistrate), who

is authorized by a Magistrate in that regard.

16. Section 195 of the Code deals with prosecution for

contempt of lawful authority of public servants for 12

offences against public justice and for offences relating

to documents given in evidence. Sub-section (1) thereof,

which is relevant for the present pursuit, clamps an

embargo on the cognizance by any court of any offence,

as mentioned therein, in clauses (a) and (b) thereof.

Whereas, vis-a-vis the offences enumerated in clause (a),

such cognizance is permissible only on a complaint in

writing of the public servant concerned or of some other

public servant to whom he is administratively

subordinate, in re offences cataglogued in clause (b), a

complaint in writing of the Court or by such officer of

the Court, as that Court may authorise in writing or of

some other Court to which that Court is subordinate, is

an imperative precondition.

17. Here, the Court would have to be one in the

proceedings whereof or in relation whereto, the offences

set- out in clause (b) are alleged to have been

committed. Suffice it to state for the instant purpose,

that the offences detailed in clauses (a) and (b), having 13

regard to the punishments prescribed therefor, give rise

to “summons” as well “warrant-cases”. An offence

under Section 193 IPC however would constitute a

warrant case.

18. Chapter XIV of the Code dwells on the conditions

requisite for the initiation of proceedings under the

Code. Section 190 provides that any Magistrate of the

first Class and any Magistrate of second class

specifically empowered in this behalf under sub-section

(2) thereof, may take cognizance of any offence –

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

19. Avoiding the unnecessary details, it is enough to

record that after an information is laid with the police in

respect of an offence, as provided for in Chapter XII of 14

the Code and on completion of the investigation in

connection therewith, the officer in-charge of the

concerned police station is required to submit a report

to the jurisdictional Magistrate empowered to take

cognizance of the offence on such report, under Section

173 thereof. This police report as referred to in

sub-section (2), needs to be in a form prescribed by the

State Government and ought to mention inter alia, the

names of the parties, the nature of the information, the

names of the persons, who appear to be acquainted with

the circumstances of the case, whether an offence

appears to have been committed and if so by whom, and

whether the accused has been arrested and released.

Sub-section (8) of Section 173, however, does not

preclude further investigation, even after submission of

such report so as to enable the investigating agency to

forward to the Magistrate a further report or reports

regarding such evidence as may be obtained. This

police report, as has been referred to in Section 190, is 15

one of the inputs available to the Magistrate to take

cognizance of any offence, as disclosed thereby.

20. In terms of Section 200, if however a complaint is

filed in a court of law, as is contemplated in clause (a) of

Section 190, a Magistrate taking cognizance of an

offence on the basis thereof, has to examine upon oath,

the complainant and the witnesses present, if any and

the substance of such examination has to be reduced in

writing, to be signed by the complainant and the

witnesses and also by the Magistrate. The mandate of

examining the complainant and the witnesses is

relaxed:

a) if a public servant acting or purporting to act in the discharge of his public duties or a Court has made the complaint; or

b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192.

21. In terms of Section 202, any Magistrate, on

receipt of a complaint of an offence of which he is 16

authorized to take cognizance or which has been made

over to him under Section 192, may, if he thinks fit, and

shall in a case where the accused is residing at a place

beyond the area in which he exercises his jurisdiction,

postpone the issue of process against the accused and

either inquire into the case himself or direct an

investigation to be made by a police officer or by such

other person as he thinks fit, for the purpose of deciding

whether or not, there is sufficient ground for

proceeding. The direction for such investigation,

however, is not permissible - a) where, it appears to the

Magistrate that the offence complained of is triable

exclusively by the Court of Sessions; or b) where the

complaint has not been made by a Court, unless the

complainant and the witnesses present (if any) have

been examined on oath under Section 200.

22. In an “inquiry”, as construed necessary as above,

the Magistrate may, if he thinks fit, take evidence of

witness on oath and if the offence complained of is 17

triable exclusively by the Court of Sessions, he would

call upon the complainant to produce all his witnesses

and examine them on oath. As per Section 204, if in the

opinion of a Magistrate taking cognizance of an offence,

there is sufficient ground for proceeding, and the case

appears to be – (a) a summons-case, he would issue

summons for the attendance of the accused in a

summons-case, and if it is (b) a warrant-case, he may

issue a warrant, or, if he thinks fit, a summons, for

causing the accused to be brought or to appear at a

certain time before such Magistrate or (if he has no

jurisdiction himself), before some other Magistrate

having jurisdiction.

23. A cumulative review of the provisions pertaining

to the cognizance of an offence by the Magistrate on a

complaint would evince that a Magistrate, if he thinks

fit, even after the examination of the complainant and

the witnesses present, at the time of taking cognizance

may postpone the issuance of process, if he construes it 18

to be fit to either cause an inquiry to be made by

himself or direct an investigation to be made by a police

officer or such other person, as he thinks fit, for being

satisfied as to whether or not, there is sufficient ground

for proceeding. A Magistrate, however, need not

examine the complainant and the witnesses, if a pubic

servant acting or purporting to act in the discharge of

his official duties or a Court has made the complaint.

There is however no restraint on him to cause an

inquiry to be made by himself even on such a complaint

for the purpose of deciding whether or not there is

sufficient ground for proceeding. This allowance is

assuredly to secure the ends of justice and to

avoid/obviate even the remotest possibility of any

avoidable prosecution.

24. Chapter XIX is devoted to trial of warrant cases by

Magistrate and enfolds two categories i.e. A -cases

instituted on a police report and B- cases instituted

otherwise than on a police report. In the former 19

category i.e. cases instituted on a police report, the

successive stages comprehended after the accused

appears or is brought before a Magistrate at the

commencement of the trial, have been detailed. These

are accommodated in Sections 238 to 243.

25. In terms of Section 238, when, the accused

appears or is brought before a Magistrate at the

commencement of the trial, the Magistrate shall satisfy

himself that he has complied with the provisions of

Section 207 i.e. the accused has been furnished without

delay, free of cost, a copy of each of the

records/documents mentioned therein, which include

the police report, referred to hereinabove and the papers

accompanying the same. If upon considering the police

report and the documents sent along with it under

Section 173 and making such examination if any of the

accused, as the Magistrate may think necessary, and if

after giving the prosecution and the accused an

opportunity of being heard, the Magistrate considers the 20

charge against the accused to be groundless, he shall

discharge the accused and record his reasons for so

doing. On the other hand, if upon such consideration

and examination if any, and hearing, the Magistrate is of

opinion that there is ground for presuming that the

accused has committed an offence triable under this

Chapter, which such Magistrate is competent to try and

which, in his opinion, could be adequately punished by

him, he shall frame in writing, a charge against the

accused, which would be read and explained to the

latter and he would be asked whether he pleads guilty to

the offence charged or claims to be tried. Noticeably,

these two eventualities encompassed in Sections 239

and 240 of the Code though contemplate examination of

the accused, if the Magistrate thinks it necessary, no

witness of the prosecution can be examined at that stage

and the Magistrate would decide as to whether the

charge is to be framed or not on the basis of the

materials available i.e. the police report and the

accompanying papers as well as the statement of the 21

accused, if recorded, of course after affording an

opportunity of hearing to both the sides.

26. Whereas Section 241 empowers the Magistrate, if

the accused pleads guilty, to record such plea and in his

discretion, convict him thereon, in terms of Section 242,

the Magistrate would fix a date for examination of the

witnesses if the accused refuses to plead guilty or does

not plead so, or claims to be tried. After the closure of

the evidence of the prosecution, in course whereof, the

accused would have a right to cross-examine its

witnesses, he would be called upon to enter upon his

defence and produce his evidence and after recording his

statement, if it is also prayed by him, the Magistrate

would issue such process for the attendance of any

witness for the purpose of examination and

cross-examination, or for production of any document or

other thing, unless it is considered that such an

application should be refused on the ground that it is

vexatious or had been made for the purpose of delay or 22

for defeating the ends of justice. At the end of the trial,

on the completion of the process, as above, if the

Magistrate finds the accused not guilty, he shall record

an order of acquittal. However, if the Magistrate finds the

accused guilty, but does not proceed in accordance with

the Sections 325 or 360 of the Code, he would, after

hearing the accused on the question of sentence, pass

sentence upon him according to law.

27. With regard to cases instituted otherwise than on

police report, the procedure is outlined in Sections 244

to 247 of the Code. In terms of Section 244, when in

any warrant case, instituted otherwise than on police

report, the accused appears or is brought before the

Magistrate, the latter shall proceed to hear the

prosecution and take all such evidence as may be

produced, in support of the prosecution. It is

subsequent thereto, as per Section 245, that if upon

taking all the evidence so produced, the Magistrate

considers, for reasons to be recorded, that no case 23

against the accused has been made out, which if

unrebutted, would warrant his conviction, the

Magistrate would discharge him. Section 245(2)

empowers the Magistrate to discharge the accused at

any previous stage of the case, if, for reasons to be

recorded by such magistrate, he considers the charge to

be groundless. In case, however, when such evidence

has been taken, or at any previous stage of the case, the

Magistrate is of the opinion that there is ground for

presuming that the accused has committed an offence

triable under the Chapter, which such Magistrate is

competent to try and which, in his opinion, could be

adequately punished by him, he shall frame in writing,

a charge against the accused, as ordained by Section

246(1). Thereafter, the charge shall be read and

explained to the accused, and he shall be asked whether

he pleads guilty or has any defence to make. If the

accused pleads guilty, the Magistrate shall record the

plea, and may, in his discretion, convict him thereon.

However, if the accused refuses to plead guilty or does 24

not plead so or claims to be tried, he shall be required to

state, at the commencement of the next hearing of the

case, or, if the Magistrate for reasons to be recorded in

writing so thinks fit, forthwith, whether, he wishes to

cross-examine any, and if so, which of the witnesses for

the prosecution, whose evidence has been taken and if

he elects to do so, the witnesses named by him, would

be recalled and, after cross-examination and

re-examination (if any), they would be discharged. As

per Section 246(6), the evidence of the remaining

witnesses for the prosecution would next be taken and

after cross-examination and re-examination, if any, they

shall also be discharged. It is subsequent thereto, that

in terms of Section 247, the accused would then be

called upon to enter upon his defence and produce his

evidence; and thereafter the provisions of Section 243,

applicable for cases instituted on a police report, would

apply. Eventually, however, depending upon whether the

accused has been found guilty or not, the order of

conviction or acquittal would follow.

25

28. The strikingly distinguishable feature in the

procedures to be adopted for cases instituted on a police

report and those instituted otherwise than on a police

report, lies in the fact that whereas in the former, there

is no scope for the prosecution to examine any witness

at the stage where the Magistrate is to consider whether

a charge is to be framed or not, in cases instituted

otherwise than on a police report, after the accused

appears or is brought before the Magistrate, the

prosecution is required to adduce all such evidence in

support of his case, whereupon the Magistrate may

discharge the accused, if he is of the view, for reasons to

be recorded on the basis of such evidence, that no case

had been made out against him, which if unrebutted,

would warrant his conviction. However, if the

Magistrate is of the opinion, in view of such evidence, or

also at any previous stage of the case, that there is

ground for presuming that the accused has committed

an offence triable under the Chapter and which he is

competent to try and adequately punish, he shall frame 26

a charge against the accused. Subsequent thereto, if the

accused refuses to plead guilty or does not plead so or

claims to be tried, vis-a-vis the charge, he would be

offered an opportunity to cross-examine any of the

witnesses of the prosecution, whose evidence had been

taken and on which the charge is founded and if the

accused elects to avail this opportunity, the witnesses

named by him would be recalled and after

cross-examination and re-examination, they shall be

discharged. Thus, not only the prosecution, in the cases

instituted otherwise than on a police report, would have

an opportunity to adduce all such evidence in support of

its case on which, on a consideration whereof, the

accused may be charged or discharged, as the case may

be, the latter can avail the opportunity of

cross-examining the witnesses only after the charge is

framed. As Section 246(6) would authenticate, the

prosecution would thereafter have another chance of

examining the remaining witnesses, who

understandably, if examined, would be subjected to 27

cross-examination and re-examination before their

discharge.

29. Chapter XX deals with trial of summons-cases by

the Magistrates in which, after the accused appears or is

brought before the Magistrate, the particulars of the

offence of which he is accused, shall be stated to him

and he would be asked whether he pleads guilty or has

any defence to make, but it would not be necessary to

frame a formal charge. If the accused pleads guilty, the

Magistrate would record the plea as nearly as possible in

the words used by him and may, in his discretion,

convict him thereon. If however, the Magistrate does not

convict the accused, he shall proceed to hear the

prosecution and take all such evidence as may be

produced in support of the prosecution and also hear

the accused and take all such evidence as he would

produce in his defence and record acquittal or

conviction, as the case may be. The other aspects under

Chapters XIX and XX on the trial of warrant-cases and 28

summons-cases by Magistrates, being of no significance

qua the issue involved, have not been adverted to.

30. We next turn to Chapter XXVI on the “Provisions

as to offences affecting the administration of justice”,

the center piece of scrutiny. As per Section 340 of the

Code, captioned as “Procedure in cases mentioned in

Section 195”, when upon an application made to it in

this behalf or otherwise, any Court is of the 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, 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 a proceeding in that

Court, such Court may after such preliminary enquiry,

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;

29 (d) take sufficient security for the appearance for 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.

31. This power in the eventualities, as enumerated in

sub-section (2), can be exercised by the Court to which

the former Court is subordinate within the meaning of

Section 195(4). Sub-section (3) requires that such a

complaint has to be signed by the authorities as

mentioned therein. The two essential pre-requisites, as

predicated by this provision, are formation of an opinion

(1) even if prima facie, that an offence referred to Section

195(1)(b) appears to have been committed in or in

relation to a proceeding of the Court or as the case may

be in respect of any document produced or given in

evidence in a proceeding in that Court and (2) it is 30

expedient in the interests of justice that an enquiry

should be made into such offence.

32. It is no longer res integra that the preliminary

enquiry, as comprehended in Section 340, is not

obligatory to be undertaken by the Court before taking

the initiatives as contained in clauses (a) to (e) while

invoking its powers thereunder. Section 341 provides for

an appeal against an order either refusing to make a

complaint or making a complaint under Section 340,

whereupon the superior court may direct the making of

the complaint or withdrawal thereof, as the case may be.

Section 343 delineates the procedure to be adopted by

the Magistrate taking cognizance. This provision being of

determinative significance is quoted hereinbelow:

“343: Procedure of Magistrate taking cognizance: - (1) A Magistrate to whom a complaint is made under section 340 or section 341 shall, notwithstanding anything contained in Chapter XV, proceed, as far as may be, to deal with the case as if it were instituted on a police report.

31 (2) Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage, adjourn the hearing of the case until such appeal is decided.”

33. As sub-section (1) of Section 343 would

unequivocally testify, a Magistrate to whom a complaint

is made under Section 340 or Section 341 shall,

notwithstanding anything contained in Chapter XV of

the Code i.e. the procedure to be followed by a

Magistrate taking cognizance on a complaint, proceed as

far as may be to deal with the case as if it was instituted

on a police report. Whereas Section 344 prescribes

summary procedure for trial for giving false evidence,

Section 345 outlines the procedure in certain cases of

contempt committed in the view or presence of any

Court as mentioned therein. Section 346 prescribes the

procedure where the Court considers that the case

should not be dealt with in the manner as set-out in 32

Section 345, whereupon the Magistrate to whom any

case is forwarded would proceed to deal therewith, as far

as may be, as if it were instituted on a police report.

34. Before dilating on the legislative intendment

entrenched in Section 343(1) in particular, expedient it

would be to traverse the authorities cited at the Bar for

the desired insight into underlying objective of Section

340 and its bearing on the procedure to be adopted by

the Trial Magistrate while dealing with a complaint

thereunder.

35. The question posed before the Constitution Bench

of this Court in M.S. Sheriff, P.C. Damodaran Nair vs.

State of Madras4, was whether an appeal would lie

under Section 476-B of the Cr.P.C. (as it was then) from

an order of a Division Bench of a High Court directing

the filing of a complaint for perjury. Answering in the

affirmative, this Court declined however to intervene

with the order by observing that the only relevant

consideration at that stage being the satisfaction of the 4 AIR 1954 SC 397 33

High Court as to whether it was expedient in the

interests of justice that an inquiry ought to be made into

the offence which prima facie appeared to have been

committed, no interference was warranted. This was

more so as the High Court had scrutinized the evidence

minutely and had disclosed ample materials on which a

judicial mind could reasonably reach the conclusion

that it was a matter which required investigation in a

Criminal Court and that it was expedient in the interests

of justice to have it inquired into. The apparent legal

enunciation, as can be discerned, from the above

observations is that at the stage of lodging of a

complaint under Section 340 Cr.P.C., the decisive

consideration is the satisfaction derived by the

Complaining Court that it was expedient in the interests

of justice that an inquiry ought to be made by a

Criminal Court into an offence which otherwise

appeared to have been committed in connection with the

proceedings before it and affecting the administration of

justice.

34

36. A Constitution Bench of this Court in Iqbal

Singh Marwah and another vs. Meenakshi Marwah

and another5, while dealing with the ambit of the

restraint contained in Section 195 with regard to

lodging of complaint vis-a-vis the offences referred to in

sub-section (1)(b)(ii) in particular did rule as well on the

import of Section 340 of the Code. It propounded that

the language used in Section 340 Cr.P.C. does not make

it imperative for a Court to make a complaint regarding

commission of an offence referred to in Section 195(1)(b)

as the Section is conditioned by the words “Court is of

opinion that it is expedient in the interests of justice”

which demonstrate that such a course would be

adopted only if in the interests of justice, it is required

and not otherwise. In elaboration, it was held that

before filing of the complaint, the Court may hold a

preliminary inquiry and record a finding to the effect

that it is expedient in the interests of justice that

inquiry should be made into any of the offences referred

5 (2005) 4 SCC 370 35

to in Section 195(1)(b) and that this expediency would

normally be judged by the Court by weighing not the

magnitude of injury suffered by the person affected by

such forgery or forged document but having regard to

the effect or impact, such commission of offence has

upon the administration of justice. This elucidation

reiterates the pre-requisites for initiating an action

under Section 340 of the Code, the impelling factor

being the concern for sustaining the purity of the

process of administration of justice.

37. We refer to the decision of this Court in K.

Karunakaran vs. T.V. Eachara Warrier and Anr.6, to

recall the observations made therein that in an inquiry

held by the Court under Section 340(1) of the Code,

irrespective of the result of the main case, the only

question is whether a prima facie case is made out

which, if unrebutted, may have a reasonable likelihood

to establish the specified offence and whether it is also

expedient in the interests of justice to take such action.

6 (1978) 1 SCC 18 36

Further, at the trial, the reasons recorded in the order

under Section 340(1) should not weigh with the

Criminal Court in coming to its independent conclusion

whether the offence, as alleged, has been fully

established beyond reasonable doubt and it would be for

the prosecution to establish all the ingredients of such

offence and the decision would be based only on the

evidence produced before the Criminal Court during the

trial and its conclusion would be independent of the

opinion formed by the complaining court under Section

340(1). It was explicated that the fact that the prima

facie case had been laid out for laying a complaint, does

not mean that the charge has been established against a

person beyond reasonable doubt which would have to be

assayed in details at the trial by the parties who would

have opportunity to produce evidence and controvert

each others case exhaustively without any reservation.

38. This Court in Pritish1 did embark upon the

purport and scope of Sections 340 and 343 of the Code 37

and the procedure to be followed by the Trial Magistrate

before whom a complaint is made.

39. Dwelling upon the expanse of Section 340, to

start with, it was propounded that the hub thereof was

the formation of an opinion by the Court, before which

the proceedings were pending prior to the complaint,

that it is expedient in the interests of justice that an

inquiry should be made into an offence which appears to

have been committed. It was underlined that though in

order to form such an opinion, the Court was

empowered to hold a preliminary inquiry, it was not

obligatory to do so and even without such preliminary

inquiry, the Court could form such an opinion. It was

observed that though the Court even after forming such

an opinion was not obligated to make a complaint, but

once it decides to do so, it has to make a finding to the

effect that in the fact situation, it is expedient in the

interests of justice that the offence should be further

probed into. It was underlined that absence of any 38

preliminary inquiry would not vitiate a finding if

reached, that it is expedient in the interests of justice

that an inquiry should be made into the offence which

appears to have been committed. This Court recorded as

well that the preliminary inquiry contemplated was not

for finding as to whether a particular person was guilty

or not but only to decide as to whether it is expedient in

the interests of justice to inquire into the offence which

appears to have been committed. Referring to Section

343 of the Code, it was held that the Trial Magistrate on

receiving the complaint has to proceed in accordance

with the procedure set out in Chapter XIX and proceed

under Section 238 to Section 243 of the Code.

Elaborating on these provisions, this Court propounded

that as required under Section 238 of the Code, the Trial

Magistrate would be required at the outset to satisfy

himself that the copies of all relevant documents have

been supplied to the accused and consider the

complaint and the documents sent with it in terms of

Section 239. It was mentioned as well that the 39

Magistrate could also examine the accused if thought

necessary and after hearing the prosecution and the

accused could discharge the accused if the allegation

against him were found to be groundless.

40. However if the Magistrate was of the opinion that

there was ground for presuming that the accused had

committed the offence, he would be required to frame a

charge in writing against the accused, read and explain

the same to him and if he does not plead guilty, to

proceed to conduct the trial. This Court emphasized

that until this stage, the inquiry would continue before

the Trial Magistrate.

41. It was highlighted that the inquiry entrusted to

the Trial Magistrate by filing the complaint, as

comprehended in Section 2(g) of the Code was to be an

inquiry other than a trial and would continue till the

Trial Magistrate would either discharge the accused if

the allegations are found to be groundless or frame a

charge against him in writing, if he was of the opinion 40

in the aforesaid inquiry that there was ground for

presuming that the accused had committed the

offence.

42. This Court adverted to the decision of the

Constitution Bench in M.S. Sheriff4, to highlight that

the Court at the stage envisaged in Section 340 of the

Code would not decide the guilt or innocence of the

party against whom the proceedings are to be

instituted before the Magistrate and at that stage it

was to examine as to whether it was expedient in the

interests of justice that an inquiry should be made into

any offence affecting the administration of justice and

that no expression of the guilt or innocence of the

persons should be made while passing the order under

Section 340 of the Code. That the scope of the scrutiny

under Section 340 Cr.P.C. was to ascertain whether it

could decide on the materials available that the matter

requires inquiry by a criminal court and that it was

expedient in the interests of justice to have an inquiry 41

into was underscored. It was expressed in clear terms

that at the stage of analysis under Section 340 of the

Code for the above purpose, there was no legal

obligation to afford an opportunity to the persons

against whom the complaint could eventually be made.

43. In Amarsang Nathaji2, the decision of the

jurisdictional High Court to file a complaint under

Section 340 of the Code against the appellant, in view

of false statements made in the documents and

declarations offered to be read as evidence which was

perceived to have the potential of affecting the

administration of justice, was impeached. Therein the

two pre-conditions for invocation of Section 340

Cr.P.C. namely, (1) materials on record ought to make

out a prima facie case for a complaint for the purpose

of inquiry into the offence (as referred to in Section

195(1)(b) and (2) expediency in the interests of justice

to cause an inquiry to be made into the alleged offence

were enumerated. While observing that a mere 42

contradictory statement by a person in a judicial

proceeding per se might not always be sufficient to

justify a prosecution under Sections 199 and 200 of

the Indian Penal Code, it was emphasized that in any

view of the matter, the Court has to form an opinion

that it is expedient in the interests of justice to initiate

an inquiry into the offence perceived and that to put it

differently, the satisfaction of the Court of the

essentiality of such an inquiry in the interests of

justice is the pre-requisite to activate the process

under Section 340(1). It was however clarified that for

the opinion of the Court that for an inquiry into the

offence which appears to have been committed the

satisfaction has to be prima facie. It was held as well

that to derive that satisfaction, a preliminary inquiry is

not mandatory, if the Court is otherwise in a position

to form such an opinion and that even after the

formation of such opinion, filing of a complaint is not

peremptory. After referring to the decision of the

Constitution Bench of this Court in Iqbal Singh 43

Marwah5, which explicated inter alia that the

expediency for the inquiry in the interests of justice

would normally be judged by the Court by weighing not

the magnitude of injury suffered by the person affected

by such forgery or forged document but the effect or

impact thereof upon the administration of justice, it

was held that in the facts of the case, the Court had

not adhered to the requirements prescribed under

Section 340 Cr.P.C. to form its opinion. While parting

however, with reference to Section 343 of the Code, it

was enunciated that the Trial Magistrate having regard

to the offences mentioned in Section 340 Cr.P.C. has to

follow the procedure for trial of warrant cases under

Chapter XIX Part A comprising of Section 238 to

Section 243 Cr.P.C.

44. In Mohan Lal Jatia vs. Registrar General,

Supreme Court of India7, the issue as to whether, in

terms of Section 343(1) of the Code the Trial Magistrate

is mandatorily required to adopt the procedure set out

7 171(2010) Delhi Law Times 335 44

in Chapter XIX-B thereof by treating the complaint filed

under Section 340 Cr.P.C. to be a case instituted

otherwise than on police report fell for scrutiny. The

prefatory facts reveal that the complaint was filed

following an investigation by the Central Bureau of

Investigation (for short, “CBI”) on the direction of this

Court to inquire into the allegation of filing of false

affidavit before it. The CBI on the completion of the

investigation submitted its report recommending

prosecution amongst others of the appellant under

Sections 120B, 193, 218, 468, 471, 420 IPC r/w Section

511 of IPC whereupon a complaint was made under

Section 340 Cr.P.C. by the Registrar General of this

Court before the concerned Trial Magistrate.

45. The Delhi High Court in the above backdrop of

facts and more particularly the investigation conducted

by the CBI and the report submitted by it on the basis

thereof held that the mandate of Section 343(1) of the

Code was clear that either the offences against the 45

administration of justice should be tried summarily by

the concerned Court or if the complaint is filed by the

Court regarding such offences, the complaint should be

treated as a police report and the trial has to be

conducted in the same manner as of a warrant case on

police report. It was thus ruled that the procedure

prescribed for dealing with the complaint as a case

instituted otherwise than on police report would be

inapplicable. It was more so as the complaint in the case

was preceded by an investigation by the CBI which

therefore ruled out the necessity of any pre-charge

evidence.

46. The Bombay High Court in Godrej & Boyce3 did

address as well the procedure to be adopted by the Trial

Magistrate qua a complaint filed under Section 340

Cr.P.C. After adverting to the 41st Report of the Law

Commission of India which eventuated the legislation of

the amended Section 343 Cr.P.C. as it stands today, it

held that having regard in particular to the term “as far 46

as may be” applied in Section 343(1) Cr.P.C. that a

complaint so filed did not get transmuted to a police

report ipso facto and that the provision envisaged

exceptions in given fact situations. Tracing from the

definition of the word “complaint” in Section 2(d) of the

Code, it was expounded that when filed under Section

340, the complaint would retain its basic characteristics

of not being a police report so much so, that having

regard to the flexible text of Section 343(1) Cr.P.C., the

proceedings on the basis thereof could not automatically

be construed to be a case instituted on a police report.

In elucidation, it was observed that where the

background of the complaint is one where materials are

uncomplicated and not confusing and had been

gathered sufficiently and satisfactorily both in regard to

quality and quantum, the Trial Magistrate could

straightaway proceed as if in a case instituted on a

police report as the Court would then be equipped with

the necessary materials which have to be furnished to

the accused for preparing his defence and nothing more 47

is needed for commencement and completion of the trial.

However, it noted, that in a given case where due to the

absence of such an inquiry by the Complaining Court or

by reason of its not being exhaustive or adequately

detailed an appropriate procedure as in the proceedings

instituted on a complaint could be found fair and

necessary. It was concluded thus that Section 343

therefore permitted the Trial Magistrate to adopt the

complaint procedure in such a situation. The other

aspects of the lis as examined therein being not of direct

relevance for the present purpose are not being adverted

to.

47. To disinter in the above forensic backdrop, the

legislative intendment ingrained in Section 343(1) in

particular, it would be essential to recall at first, the

precursor of this provision in the Code of Criminal

Procedure, 1898 i.e. Section 476, which was in following

terms:

“476: (i) When any Civil, Revenue or Criminal Court is, whether on application 48

made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, sub-section (i), clause (b) or clause (c), which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction, and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may, if it thinks necessary so to do, send the accused in custody to such Magistrate, and may bind over any person to appear and give evidence before such Magistrate.

[Provided that, where the Court making the complaint is a High Court, the complaint may be signed by such officer of the Court as the Court may appoint.]

For the purposes of this sub-section, a Presidency Magistrate shall be deemed to be a Magistrate of the first class.

(2) Such Magistrate shall thereupon proceed according to law and as if upon complaint made under Section 200.

(3) Where it is brought to the notice of such Magistrate or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the 49

decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided.”

48. Sub-section (2) of Section 476, as it stood prior to

the amendment heralding the present Section 343(1)

obligated the Magistrate before whom the complaint was

filed by a Court being of the view that an offence under

Section 195(1)(b) or clause (c) (as it was then) appeared

to have been committed in or in relation to a proceeding

in that Court and that it was considered expedient in the

interests of justice that an enquiry should be made into

such offence, to proceed according to law and as if upon

complaint made under Section 200.

49. In the 41st Report of the Law Commission of India,

Section 476 of the 1898 Code, amongst others, fell for

scrutiny. While observing that Section 476 was intended

to be complementary to Section 195 and therefore ,its

scope should be neither wider nor narrower than the 50

latter, it recommended as hereinbelow vis-à-vis Section

476(2):

“35.3: Under Section 476(2), the Court to which a complaint is made under Section 476 shall proceed “as if upon complaint under Section 200”. It was suggested during our discussions that since a complaint is made under Section 476 by a responsible judicial officer (and after inquiry in most cases), the Court to which the complaint is made need not and should not hold another inquiry under Chapter 16 but should issue process under Section 204. It was urged that when a superior Court had made a complaint, it was inappropriate that a Magistrate should again hold an inquiry or dismiss it under Section 203. We, however, felt that there was no justification for totally dispensing with an inquiry under Section 202. The Court making the complaint under Section 476 may not have made a thorough inquiry, and the Court taking cognizance of the offence under Section 195 might like to have more materials before issuing process. The nature of the jurisdiction to be exercised by the Magistrate under Sections 202 and 203 is not always similar to the nature of the proceedings held by the complaining Court under Section 476. For instance, under Section 202, further “investigation” may be ordered, whereas an “inquiry” under Section 476 is of a limited nature. It would not be correct to assume that one will 51

serve the purpose of the other in every case.”

50. In response to the view expressed in course of the

deliberations that the Court to which the complaint is

made need not and should not hold another inquiry

under Chapter XVI, a complaint having been made by a

responsible Judicial Officer (and after inquiry in most

cases) and that therefore the Trial Magistrate should

issue process under Section 204 without further

enquiry, the Commission was of the comprehension that

there was no justification for totally dispensing with an

inquiry under Section 202 as the Court making the

complaint under Section 476 might not have made a

thorough inquiry and the Court taking cognizance of the

offence under Section 195 might in a given case, like to

have more materials before issuing the process. This is

more so as in its opinion, the nature of the jurisdiction

to be exercised by the Magistrate under Sections 202

and 203 was not always similar to the nature of the 52

proceedings held by the complaining Court under

Section 476. This is more so, as the inquiry under

Section 476, even if conducted, is of a limited nature

and may not serve the purpose of an inquiry under

Section 202 in every case.

51. The above view of the Commission and the

recommendations stemming therefrom, are in accord

with the expression “as far as may be” engrafted in

Section 343, the salient features whereof can be

deciphered as: (i) a Magistrate dealing with a complaint

under Section 340 or Section 341 has to proceed as far

as may be to deal with the case as if it were instituted on

a police report; (ii) this course the Magistrate would

follow notwithstanding anything contained in Chapter

XV.

52. Noticeably, the expression “as far as may be”

assuredly lends some elasticity, relaxing the otherwise

rigour of the legislative mandate to deal with the

complaint as a case instituted on a police report. It 53

cannot be gainsaid that in absence of this discernible

flexibility, the Magistrate would be left with no option

but to construe the complaint under Section 340 or

Section 341 to be a case as if instituted on a police

report, Section 343(1) thus clearly marks an exception

qua the procedure to be adopted by the Trial Magistrate

if the complaint is filed under Section 340 or Section

341 of the Code. To reiterate, barring the perceptible

flexibility as contained in the expression “as far as may

be”, the Magistrate is required to deal with the complaint

as a case as if instituted on a police report. The

relaxation in this rigour is patently traceable to the

views/recommendations of the Law Commission, as

recorded hereinabove, whereby in a given fact situation,

the legislative mandate to the Magistrate to treat a

complaint under Section 340 or Section 341 to be a case

as if instituted on a police report notwithstanding it

would be open for him, if in his opinion, further

materials are required to enable him to proceed and for 54

that purpose, an inquiry is warranted to undertake that

exercise.

53. As noted hereinabove, in cases instituted on

police report, as is contained under Chapter XIX, the

Trial Magistrate can discharge an accused or frame a

charge against him on a consideration only of the police

report and the documents, laid under Section 173 and

the statement made if any, by the accused in his

examination and after affording an opportunity of

hearing both the sides. To repeat, at that stage, the

prosecution has no scope to examine any witness and

thus is not obligated to adduce any evidence in support

of its case.

54. Judged from the standpoint of interplay between

Sections 340 and 343 of the Code, thus the following

eventualities may arise:

a) When a judicial complaint is based on

materials collected in the course of

preliminary inquiry before the complaint 55

under Section 340 is filed. This is a

situation where in terms of Section 343,

the Trial Magistrate shall straightway deal

therewith as if it was instituted on a police

report as per Chapter XIX-A of the Code.

b) Where the judicial complaint is not

preceded by a preliminary inquiry and

there is no material either by way of any

statement or document and the Trial

Magistrate genuinely feels in the cause of

justice that even if there is a prima facie

satisfaction of the complaining court that

the offence mentioned appears to have

been committed, he can undertake a

summary enquiry and on the completion

thereof, may decide on the complaint in

accordance with law.

56

c) Where though no preliminary inquiry

had been made before filing of the judicial

complaint, the facts are so clear and

obvious in endorsement of the prima facie

satisfaction that the offence had been

committed and that it is expedient in the

interests of justice to have the same probed

into further by the Trial Magistrate, the

Trial Magistrate shall deal with the case as

if it was instituted on a police report and

follow the procedure under Chapter XIX-A

of the Code.

55. That Section 343(1) of the new Code has been

cast in the mould, totally different from the one, as in

Section 476(2) of the old Code, is crystal clear. Having

regard to the recommendations of the Law Commission,

as set-out hereinabove, the shift by the amendment is

from the detailed procedure, prescribed for a case

registered on a complaint i.e. instituted otherwise than 57

on a police report. This is more so vis-a-vis a

complaint case involving an offence to be tried by

applying the warrant procedure. Section 343(1) of the

Code now enjoins the Trial Magistrate to deal with the

complaint under Section 340 or Section 341 by treating

it to be a case, as if instituted on a police report.

There is indeed a deeming element ingrained in the

provision. Further, the expression “as far as may be”

does not foreclose wholly, at the same time the

discretion of the Trial Magistrate, if he genuinely feels it

necessary, to get additional materials on record for his

necessary satisfaction to proceed thereafter as required

in law. This element of discretion conferred on the Trial

Magistrate, in our comprehension, does not either

suggest or encourage any irreverence to the

complaining court and the legislative intent is to ensure

against avertable judicial proceedings in the overall

interest of justice. The amendment, while secures an

expeditious disposal of the complaint by treating it to

be a case instituted on a police report as far as may be 58

without undergoing the rigour of the elaborate

procedure meant for a complaint case, has with the

conferment of the discretion on the Trial Magistrate, as

above provided the necessary balance to prevent even

the remotest possibility of a lame prosecution.

56. In our view, Sections 200, 202, 204, 238 to 243,

340 and 343(1), when juxtaposed to each other, would

endorse the availability of a discretion in the Trial

Magistrate to conduct a semblance of inquiry, if

considered indispensable for proceeding with the

complaint in accordance with law. This is more so,

amongst others, as a complaint under Section 340 or

Section 341 may be filed even without holding a

preliminary inquiry into the facts, on which it appears to

the complainant Court prima facie that an offence, as

contemplated, had been committed and that it is

expedient in the interests of justice that an inquiry

should be made into such offence by a Magistrate. In the

event of a complaint being made after a preliminary

inquiry, in which sufficient materials are obtained 59

following which a complaint is filed, to reiterate, it may

not be necessary for the Trial Magistrate to embark upon

any further inquiry to complement the same. However, if

no such preliminary inquiry is held and a complaint is

filed, in the interest of justice and to obviate

unwarranted prosecution, the Trial Magistrate may, to

be satisfied, feel the necessity of some inquiry, summary

though, to decide the next course of action in law. In

other words, if the Trial Court on receipt of a complaint

is satisfied that the materials on record are adequate

enough, it shall, as per the mandate contained in

Section 343(1), deal with the case as if instituted on a

police report. On the other hand, if the complaint has

been filed without a preliminary inquiry, in our estimate,

having regard to the inbuilt flexibility in the text of

Section 343(1), which cannot by any means be

construed to be an unnecessary appendage or

surplusage, introduced by the legislature, it would be

open for the Trial Magistrate to hold a summary inquiry

before proceeding further with the complaint. As in any 60

case, the cause of justice would be paramount, the

mandate in Section 343(1) to the Trial Magistrate to deal

with a complaint under Section 340 or Section 341

Cr.P.C. as a case instituted on a police report, if

construed to be inexorably absolute, would tantamount

to neutering the expression “as far as may be”, which is

impermissible when judged on the touchstone of

fundamental principles of justice, equity and good

conscience as well as of interpretation of statutes.

Though expectedly, a complaint under Section 340 or

Section 341 Cr.P.C. would be founded on materials in

support thereof and would also be preceded by a prima

facie satisfaction of the complaining Court with regard to

the commission of the offence and the expediency of an

inquiry into the same in the interests of justice, the plea

of unavoidable compulsion of a Trial Magistrate to treat

the same, as a case as if instituted on a police report, by

totally disregarding the necessity, even if felt, for further

inquiry, does not commend acceptance. True it is that

the text of Section 343(1) otherwise portrays a 61

predominant legislative intent of treating the complaint

under Section 340 and Section 341 to be a case, as if

instituted on a police report, the presence and purport of

the expression “as far as may be” by no means can be

totally ignored. This, in our estimate, acknowledges the

discretion of the Trial Magistrate to obtain further

materials by way of an inquiry even if summary in

nature, if genuinely felt necessary in the interest of

justice for generating the required satisfaction to proceed

in the matter as ought to be in law. However, in

exercising such discretion, the Trial Magistrate has to be

cautiously conscious of the fact that the complaint

pertains to an offence affecting the administration of

justice and is preceded by a prima facie satisfaction of

the complaining Court that the same might have been

committed and that it was expedient in the interests of

justice to inquire into the same. In other words, the

discretion, as endowed to the Trial Magistrate under

Section 343(1) has to be very sparingly exercised and

only if it is genuinely felt that further materials are 62

required to be collected through an inquiry by him only

to sub-serve the ends of justice and avoid unwarranted

judicial proceedings. This is particularly as the

Legislature, while designing Section 343(1) of the Code,

was fully conscious of the distinction between cases

instituted on police report and otherwise and had

amended Section 476(2) of the 1898 Code with due

deference to the recommendations of the Law

Commission of India.

57. To recount, the Law Commission had in its

recommendations, observed that the Court making the

complaint under Section 476 (now under Section 340)

may not make a thorough inquiry and the Trial

Magistrate taking cognizance of the offence then might

like to have more materials before issuing the process.

It underlined that the nature of jurisdiction to be

exercised by the Trial Magistrate under Sections 202

and 203 of the Code is always not similar to the nature

of proceedings held by the complaining court under 63

Section 476 (now under Section 340) and therefore, the

inquiry under Section 476 (now Section 340) being of a

limited nature, may not in all eventualities, serve the

purpose of “investigation” as contemplated in Section

202 of the Code.

58. We are thus of the firm opinion that a Trial

Magistrate, on receipt of a complaint under Section 340

and/or Section 341 of the Code, if there is a preliminary

inquiry and adequate materials in support of the

considerations impelling action under the above

provisions are available, would be required to treat such

complaint to constitute a case, as if instituted on police

report and proceed in accordance with law. However, in

absence of any preliminary inquiry or adequate

materials, it would be open for the Trial Magistrate, if he

genuinely feels it necessary, in the interest of justice and

to avoid unmerited prosecution to embark on a

summary inquiry to collect further materials and then

decide the future course of action as per law. In both the 64

eventualities, the Trial Magistrate has to be cautious,

circumspect, rational, objective and further informed

with the overwhelming caveat that the offence alleged is

one affecting the administration of justice, requiring a

responsible, uncompromising and committed approach

to the issue referred to him for inquiry and trial, as the

case may be. In no case, however, in the teeth of Section

343(1), the procedure prescribed for cases instituted

otherwise than on police report would either be relevant

or applicable qua the complaints under Section 340

and/or 341 of the Cr.P.C.

59. Reverting to the case in hand, the complaint was

filed by the Trial Court stating that the respondent had

committed an offence under Section 193 IPC, he having

resorted to falsehood on oath at the trial in order to

screen the accused from the crime and to enable him to

escape punishment. The offence alleged is one included

in Section 195(1)(b) of the Code and is otherwise, having

regard to the punishment prescribed, to which, warrant 65

procedure would be applicable. In course of the

arguments, it had transpired that the Trial Magistrate

had examined the complainant and some other

witnesses before framing charge against the respondent

under the above provision of law. The High Court by the

order impugned however, to reiterate, had sustained the

plea of the respondent that as the complaint ought to

have been construed to be a case otherwise than on

police report to which warrant procedure was applicable,

charge could not have been framed as the prosecution

had not adduced all its evidence at that stage, as

required under Section 244 of the Cr.P.C.

Significantly, no challenge has been made to the legality

and/or the validity of the order under Section 340 or the

complaint on any ground. It has also not been asserted

in the course of arguments that the evidence already

recorded is not sufficient to frame a charge, as had been

done by the Trial Magistrate.

66

60. In view of the determination as above, the

approach of the High Court is wholly indefensible, as in

the face of Section 343(1) of the Cr.P.C., the procedure

prescribed for cases instituted otherwise than on police

report is not attracted qua a complaint under Section

340 and/or Section 341 of the Code. Even assuming

that the Trial Magistrate had examined few witnesses in

support of the complaint, it was in the form of a

summary inquiry, to be satisfied as to whether the

materials on record would justify the framing of charge

against the respondent or not and nothing further. Any

other view would fly in the face of the ordainment of

Section 343(1) of the Cr.P.C. and thus cannot receive

judicial imprimatur. The impugned judgment of the

High Court in quashing the charge framed by the Trial

Magistrate and remanding the case to him to follow the

procedure outlined for cases, instituted otherwise than

on police report, under Chapter XIX-B is on the face of

it unsustainable in law and on facts. It is thus set

aside. The appeals are allowed. The Trial Magistrate 67

would proceed from the stage of framing of charge,

strictly in compliance of the letter and spirit of the

precept contained in Section 343(1) of the Code. We

make it clear that we have not offered any observation

on the merits of the charge and the Trial Court would

further the proceedings in accordance with law.

…........................................J. [ARUN MISHRA]

…........................................J. [AMITAVA ROY] NEW DELHI;

AUGUST 18, 2017.

68

ITEM NO.1501 COURT NO.11 SECTION II-A For Judgment S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.)No(s).122-123/2016

(Arising out of impugned final judgment and order dated 05-03-2013 in CRLWP No. 113/2012 30-07-2015 in CRLMA No. 35/2015 30-07-2015 in CRLWP No. 113/2012 passed by the High Court Of Bombay At Goa)

THE STATE OF GOA Petitioner(s) VERSUS

JOSE MARIA ALBERT VALES ALIAS ROBERT VALES Respondent(s) (HEARD BY : HON. ARUN MISHRA AND HON. AMITAVA ROY, JJ.)

Date : 18-08-2017 These matters were called on for pronouncement of JUDGMENT today.

For Petitioner(s) Mr. Pratap Venugopal, Adv.

Ms. Surekha Raman, Adv.

Mr. Dileep Poolakot, Adv.

Ms. Niharika, Adv.

Ms. Kanika Kalaiyarasan, Adv.* For K J John And Co, AOR

For Respondent(s) Mr. Trideep Pais, Adv.

Ms. Deeksha Gujral, Adv.

Mr. Gautam Narayan, AOR

Hon'ble Mr. Justice Amitava Roy pronounced the judgment of the Bench comprising Hon'ble Mr. Justice Arun Mishra and His Lordship.

Leave granted.

Appeal is allowed in terms of signed Reportable Judgment.

Pending applications, if any, stand disposed of.

(B.PARVATHI) (TAPAN KUMAR CHAKRABORTY) COURT MASTER (SH) BRANCH OFFICER

(Signed reportable judgment is placed on the file)