Virendra Kumar Shastri vs State of Uttarakhand and another

Hon''ble Servesh Kumar Gupta, J.—Having heard learned counsel for the parties, it transpires that there is a Vedic Mohan Ashram, at Bhupatwala, Haridwar, having ownership interalia upon two shops in the locality, which were once leased to Shankar Lal, father of Sushil Kumar. Sushil Kumar used to run these shops for vending construction materials but somehow or the other could not be successful in his business, so these shops were allegedly surrendered in favour of Ashram. The same were again let out to some other fellow by Yashvir Singh claiming himself to the Managing Trustee of the Ashram for a handsome consideration. This all is the backdrop of entire bone of contention.

Virendra Kumar Shastri alleging himself to be the Chief Managing Trustee of the Ashram moved an application u/s 156(3) Cr.P.C. to the concerned Magistrate, who having relied upon the affidavit of Virendra Kumar Shastri as well as another affidavit conjointly filed in support of that application passed an order dated 01.06.2007 for registration and investigation of the matter. The affidavit filed in support of that application was allegedly of Sushil Kumar and the contents of the same were also ratified by his father Shankar Lal. When the matter being proceeded in the Police Station, Sushil Kumar moved an application to the Chief Judicial Magistrate, Haridwar on dated 07.06.2007 u/s 340 Cr.P.C. with the allegation that the affidavit filed in his name along with application 156 (3) moved by Virendra Kumar Shastri is fabricated one and he neither deposed his affidavit nor his father Shankar Lal has ever ratified the same. He urged the court concerned for initiation of proceedings u/s 340 Cr.P.C. and to file a complaint against Virendra Kumar Shastri for the appropriate offence.

Learned Chief Judicial Magistrate after having preliminary inquiry u/s 340(1) Cr.P.C. passed the impugned order on dated 01.04.2008. Learned Magistrate was of the view that prima facie the affidavit, in question, did not appear to be a genuine one, so he ordered to file a complaint in the court of Special Judicial Magistrate, Haridwar for the appropriate offence.

Feeling disgruntled with the said order, Virendra Kumar Shastri has filed present petition u/s 482 Cr.P.C. Learned counsel for the applicant has drawn attention of this Court towards the provisions of Section 340(1)(d) Cr.P.C., which reads thus:

Procedure in cases mentioned in section 195. (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, which appears to have been committed in or in relation to a proceeding in that Court or, as the

case maybe, 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;

(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.

Learned counsel for the applicant has interpreted Clause (d) (supra) that the language by itself pre-supposes presence of prospective accused person while conducting preliminary inquiry by the Magistrate. Learned Magistrate has recorded the statements of Prabhat Tyagi, Notary Advocate and Pradeep Kumar Bansal, Stamp Vendor. Pradeep Kumar Bansal has stated before Magistrate that Sushil Kumar never purchased stamp paper in person, instead it was purchased by Virendra Kumar Shastri in the name of Sushil Kumar. Prabhat Tyagi, Notary Advocate has submitted that Sushil Kumar has never turned up to him for verification of the concerned affidavit and he has never verified that affidavit as Notary.

The contention of learned counsel for the applicant is that opportunity would have been rendered by the Magistrate to cross examine Pradeep Kumar Bansal and Prabhat Tyagi and without rendering such an opportunity he has made up his mind to lodge a complaint, which is against the spirit of law, as envisaged under clause (d) of sub-Section (1) of Section 340 Cr.P.C.

Per contra, learned counsel for respondent no. 2 has relied upon the precedent of Hon''ble Apex Court in the case of Pritish Vs. State of Maharashtra and Others, , in which the Court has held as under:

The hub of Section 340(1) Cr.P.C. is formation of an opinion by the court (before which proceedings were to be held) that it is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. Even when the court forms such an opinion it is not mandatory that the court should make a complaint. This sub-section has conferred a power on the court to do so. It does not mean that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its opinion.

M.S. Sheriff Vs. The State of Madras and Others, relied on

So in the light of ratio laid down by the Hon''ble Apex Court the contention of learned counsel for the applicant is not tenable and is thus, rejected.

Learned counsel for the applicant has also contended that for initiation of any action u/s 340(1) Cr.P.C., the Magistrate should have expressed his opinion that it is expedient in the interest of justice........... and the Magistrate has utterly failed to make his opinion as to why lodging of complaint was expedient in the interest of justice. This contention of learned counsel for the applicant is also not acceptable. For the reason, the Magistrate in the last paragraph of the impugned order has categorically expressed his opinion that prima facie case has been made out. Albeit, exact words "expedient in the interest of justice" have not been mentioned but this court can well derive the spirit of the requisite phrase from the language and the categorical opinion of the Magistrate, which he has adverted in the last paragraph of impugned order.

It is pertinent to mention that Hon''ble Apex Court in the above precedent (supra) has opined that even preliminary inquiry is not peremptory for making such complaint and equally, it is not necessary for the Magistrate to lodge complaint after making preliminary inquiry. But once he has opined that preliminary offence has been made out and compliant should be lodged, then it is nowhere a requisite of the law to render an opportunity to the prospective accused for cross examination of the witnesses, who were examined by the Magistrate in that preliminary inquiry.

It has been further argued on behalf of respondent no. 2 that in case the Magistrate refused to make a complaint u/s 340 Cr.P.C., then the order of Magistrate is challengeable to the Court, to which such court (Magistrate) is subordinate. In the opinion of this Court the analogy should be applied equally, if the Magistrate makes up his opinion to lodge the complaint, so this way also appeal could be filed against the order of Magistrate before the Sessions Judge and the impugned order does not require any interference in exercise of the plenary powers of Section 482 Cr.P.C. by this court.

In the panoptic view as above, the petition fails and liable to be dismissed. Accordingly, the petition is dismissed.