Libert A. Vaz @APPELLANT@Hash State of Karnataka

Whether an opportunity of hearing is required to be given to the person sought to be proceeded under section 340 of Cr.P.C. at the stage of making

a complaint against him under section 344 of Cr.P.C. is the short question involved in this petition?

The petitioner has called in question the order dated 18.09.2017 passed by the learned Prl. District and Sessions Judge, Haveri in S.C.No.28/2015

whereby the learned Sessions Judge while pronouncing the final judgment in S.C.No.28/2015 has directed the Chief Administrative Officer, Prl.

District and Sessions Court, Haveri to file a complaint against petitioner herein under Section 195(1)(b)(i)(ii) r/w Section 340 of Cr.P.C. for the

offences punishable under Sections 194, 195, 463, 466 r/w Section 34 of IPC.

3. The impugned order reads as under:

“As per the findings recorded by this court in para Nos.22 to 31 of the judgment, Chief Administrative Officer of the Prl. District and Sessions

Court, Haveri is hereby directed and authorized to file complaint u/S.195(1)(b)(i)(ii) r/w Sec.340 Cr.P.C. before the learned Senior Civil Judge and

JMFC court, Hangal against PW.14 Dr.Nagaraj Sangappa Kuri, Medical Officer, Hangal, PW.15 Abdul Khadar Mundinamani, then H.C. of Hangal

Police Station, PW.18 Mahadeva Lakshman Yeligar, then P.S.I. of Hangal Police Station and Sri.Libert A. Vaz, then S.D.A. of Senior Civil Judge

and JMFC. Court, Hangal for the offences punishable u/S.194, 195, 463 and 466 r/w. Sec.34 I.P.C. and adding to the same, as against PW.14

Dr.Nagaraj Sangappa Kuri for the offence punishable U/S.191 and 193 of I.P.C. also for holding enquiry and trial as per law.

On receipt of the complaint, the learned Senior Civil Judge and JMFC, Hangal is directed to proceed against the aforesaid persons naming them as an

accused as per law.

During the time of enquiry and trial, the learned Senior Civil Judge and JMFC, Hangal shall consider the findings recorded by this Court coupled with

the oral and documentary evidence available on record of this case including Ex.D.1 and D.2 and it shall not summon this court for giving evidence

during the time of enquiry or trial.

The learned JMFC shall treat this complaint as a State case and proceed further with the assistance of learned prosecutor as per law. During the time

of enquiry or trial, the learned JMFC shall not insist the presence of the complainant â€" C.A.O. before it on all the hearing dates and it is at liberty to

summon him whenever required for giving evidence during enquiry or trial.â€​

The grievance of the petitioner is that he was not notified of the alleged offences either during trial before the learned Prl. District and Sessions

Judge, Haveri or by way of preliminary enquiry contemplated under Section 340 of Cr.P.C., as such, the valuable rights of the petitioner to put forth

his defence has been taken away and the basic principles of natural justice have been violated by the learned Sessions Judge resulting in grave

miscarriage of justice.

I have heard the learned counsel for the petitioner and the learned HCGP for the respondent â€" State.

The learned counsel for the petitioner would submit that the petitioner was a Second Division Assistant then working in the Court of JMFC, Hangal.

Though it was alleged that the petitioner herein facilitated the medical officer to make a false endorsement on the dying declaration produced before

the court, yet alleged endorsement did not come into existence when the FIR and its enclosures were in the custody of the petitioner. Therefore,

without ascertaining the said fact, the learned Sessions Judge ought not to have issued the impugned direction. It is the further submission of the

learned counsel that even if the learned Sessions Judge was of the opinion that the offences mentioned under section 340 of Cr.P.C. have been

committed during the pendency of the trial before the said court, yet in view of the safeguards provided under the scheme of section 340 to 344 of

Cr.P.C., an opportunity of being heard ought to have been afforded to the petitioner so as to bring to the notice of the court the true state of facts

before forming any such opinion by the learned Sessions Judge. In support of his argument, the learned counsel has referred to section 340 of Cr.P.C.

and would submit that the impugned direction has violated the valuable rights of the petitioner and he is made to face trial without any enquiry which

amount to an abuse of the process of court.

Learned HCGP however, has argued in support of the impugned directions and would submit that in the light of the findings recorded by the learned

Sessions Judge, the impugned directions cannot be faulted with. The learned Sessions Judge has passed the impugned order at the time of delivery of

judgment and at that stage, the court was not required to hear the petitioner. Hence, there is no merit in the contentions urged by the petitioner and

consequently, he has sought for dismissal of the petition.

Having heard the parties and on going through the impugned order, I am of the considered opinion that the course adopted by the learned Sessions

Judge squarely falls within the ambit of Section 344 of Cr.P.C. The section reads as under:

“344. Summary procedure for trial for giving false evidence.- (1) If, at the time of delivery of any judgment or final order disposing of any judicial

proceeding, a Court of Session or Magistrate of the first class expresses an opinion to the effect that any witness appearing in such proceeding had

knowingly or wilfully given false evidence or had fabricated false evidence with the intention that such evidence should be used in such proceeding, it

or he may, if satisfied that it is necessary and expedient in the interest of justice that the witness should be tried summarily for giving or fabricating, as

the case may be, false evidence, take cognizance of the offence and may, after giving the offender a reasonable opportunity of showing cause why he

should not be punished for such offence, try such offender summarily and sentence him to imprisonment for a term which may extend to three months,

or to fine which may extend to five hundred rupees, or with both.

(2) In every such case the Court shall follow, as nearly as may be practicable, the procedure prescribed for summary trials.

(3) Nothing in this section shall affect the power of the Court to make a complaint under section 340 for the offence, where it does not choose to

proceed under this section.

(4) Where, after any action is initiated under sub-section (1), it is made to appear to the Court of Session or Magistrate of the first class that an appeal

or an application for revision has been preferred or filed against the judgment or order in which the opinion referred to in that sub-section has been

expressed, it or he shall stay further proceedings of the trial until the disposal of the appeal or the application for revision, as the case may be, and

thereupon the further proceedings of the trial shall abide by the results of the appeal or application for revision.â€​

The above provision contemplates three stages namely,

(i) The formation of opinion by the Sessions Court or the Magistrate at the time of delivery of judgment or final order that the witness has given false

evidence or fabricated such evidence;

(ii) The satisfaction of the court or the Magistrate that it is necessary or expedient in the interest of justice that the witness should be tried summarily

for the offences committed by him; and

(iii) Providing a reasonable opportunity to the offender of showing cause as to why he should not be punished.

It is now well settled that the conditions laid down in the above section are mandatory and are required to be followed by the learned Sessions

Judge or learned Magistrate, if he decides to try the accused summarily. In such event, the learned Sessions Judge or the learned Magistrate is

required to take cognizance of the offence and after giving the offender a reasonable opportunity of showing cause why he should not be punished for

such an offence, may try such offender summarily and sentence him to imprisonment for a term prescribed therein. But, sub-section (3) of Section

344 of the Code carves out an exception to sub-section (1) of section 344 of the Code and empowers the Court to make a complaint under section 340

of the Code for the offence, when it does not choose to proceed under section 344 of the Cr.P.C. Undisputedly, in the instant case, the learned

Sessions Judge appears to have adopted the course provided under section 344(3) of Cr.P.C. The said section does not contemplate any preliminary

enquiry or an opportunity of hearing to the witness or the person who is sought to be proceeded against for the alleged offences.

The requirement of providing an opportunity of hearing would arise only when the Court of Sessions or the Magistrate chooses to try the offender

summarily as provided under section 344 of Cr.P.C. At the stage of passing the final judgment or order, the learned Sessions Judge or the Magistrate

is only required to form an opinion that the witness has intentionally given false evidence or intentionally fabricated false evidence and it is necessary

and expedient in the interest of justice to make an enquiry into the offences committed by the witness. At that stage, the court or the Magistrate

cannot reopen the case and summon the witness to show cause as to why he should not be tried summarily for the offence committed by him. This is

well explained by the Hon’ble Supreme Court of India in the case of PRITESH vs. STATE OF MAHARASHTRA AND OTHERS, (2002) 1

SCC 253.

In the above case, a Reference Court under section 18 of the Land Acquisition Act having come to know that the claimants had wangled the

enhancement by producing forged copies of the sale deed, conducted an enquiry, collected the relevant documents from the Sub-Registry and on

examining the same, found that the appellant and another person had committed offences affecting the administration of justice by using forged

documents and accordingly, directed a complaint against them before the Judicial Magistrate of First Class having jurisdiction. The appellant therein

filed an appeal before the High Court under section 341 of Cr.P.C. contending that the Reference Court had over-looked the basic principles of

natural justice and proceeded to make an enquiry without giving an opportunity to him to be heard in the matter and hence, great prejudice has been

caused to him. The High Court rejected the contention. Before the Hon’ble Supreme Court it was contended that the scheme of sections 340 to

344 of the Code contains an inbuilt safety for the persons sought to be proceeded against, by obliging the court to afford an opportunity of being heard;

but rejecting the contention, the Hon’ble Supreme Court in paras 10 to 12 has held as under:

“10. “Inquiry†is defined in Section 2(g) of the Code as “every inquiry, other than a trial, conducted under this Code by a Magistrate or

Courtâ€. It refers to the pre-trial inquiry, and in the present context it means the inquiry to be conducted by the Magistrate. Once the court which

forms an opinion, whether it is after conducting the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be

made into any offence the said court has to make a complaint in writing to the Magistrate of the First Class concerned. As the offences involved are

all falling within the purview of “warrant case†[as defined in Section 2(x)] of the Code the Magistrate concerned has to follow the procedure

prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that the Magistrate to whom the

complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report. That being the position, the

Magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.

Section 238 of the Code says that the Magistrate shall at the outset satisfy himself that copies of all the relevant documents have been supplied to

the accused. Section 239 enjoins on the Magistrate to consider the complaint and the documents sent with it. He may also make such examination of

the accused, as he thinks necessary. Then the Magistrate has to hear both the prosecution and the accused to consider whether the allegations against

the accused are groundless. If he finds the allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof.

Section 240 of the Code says that if the Magistrate is of opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has

committed the offence he has to frame a charge in writing against the accused. Such charge shall then be read and explained to the accused and he

shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then the Magistrate has to proceed to conduct the trial.

Until then the inquiry continues before the Magistrate.

Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a

legal right is envisaged only when the Magistrate calls the accused to appear before him. The person concerned has then the right to participate in the

pre-trial inquiry envisaged in Section 239 of the Code. It is open to him to satisfy the Magistrate that the allegations against him are groundless and

that he is entitled to be discharged.â€​

Thus, the scheme delineated above clearly shows that there is no statutory requirement to afford an opportunity of hearing to the persons against

whom the court might file a complaint before the Magistrate for initiating prosecution proceedings. Such a legal right is envisaged only when he is

called to appear before the Magistrate. In the light of the above proposition and the specific provisions contained in sections 340 to 344 of Cr.P.C., the

contention urged on behalf of the petitioner is liable to be rejected and is accordingly rejected. However, in so far as the further direction issued by the

learned Magistrate as to the manner in which the learned Magistrate should conduct the enquiry and deal with the complaint and the persons who

should be summoned to give evidence etc., are wholly beyond the competence of the court. The learned Magistrate to whom a complaint is made

under section 340 of Cr.P.C. is required to follow the procedure prescribed therein as delineated by the Hon’ble Supreme Court in the decision

referred above. The learned Sessions Judge while deciding to make a complaint under section 340 of the Code cannot issue any further direction to

the Magistrate as to how and in what manner the said complaint is to be entertained and dealt with by the Magistrate. Such a direction, in my view, is

without any authority of law and cannot be sustained. To this extent, the further directions issued by the learned Magistrate contained in last two

paragraphs of the impugned order are liable to be set aside.

Accordingly, the writ petition is partly allowed. The impugned order in so far as directing the Chief Administrative Officer of the Principal District and

Sessions Court, Haveri to file a complaint against the petitioner under section 195(1)(b)(i)(ii) r/w Sec.340 Cr.P.C. before the learned Senior Civil

Judge and JMFC court, Hangal is confirmed.

The further direction issued by the learned Sessions Judge contained in last two paragraphs of the impugned order is set-aside.

The learned Magistrate shall proceed with the complaint in accordance with law under section 340 of Cr.P.C. as indicated above.