The Supreme Court has referred to a larger bench the issue whether Section 340 of the Code of Criminal Procedure mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

In this case, the Deputy Commissioner-cum-Chief Sales Commissioner, Tarn Taran, directed the Sub-Divisional Magistrate, Patti to immediately get an FIR registered against one of the parties before him observing that he had submitted forged and fabricated documents in connivance with the Tehsil staff in the appeal before the SDM-cum-Sales Commissioner. The High Court quashed the FIR so registered holding that Deputy Commissioner-cum-Chief Sales Commissioner hearing the appeal had neither held an inquiry, nor had he directed the subordinate authority to hold any such inquiry against the accused, in terms of Section 340 read with Section 195 of the CrPC. It was held that the FIR was hit by these provisions, since it had been filed without any inquiry and without giving any opportunity to the Respondent to be heard, and was therefore liable to be quashed.

Section 340 CrPC provides that, if the Court is of the opinion that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in, or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and thereafter make a complaint thereof in writing.

In Pritish v. State of Maharashtra (2002) 1 SCC 253,, it was held that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that court might file a complaint before the Magistrate for initiating prosecution proceedings. It was observed that 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.

However, in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, another three judge bench held that it is necessary to conduct a preliminary enquiry as contemplated under Section 340 CrPC and also to afford an opportunity of being heard to the would be accused. Later, in Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113, a two judge bench followed the view taken in Pritish.

Noticing these conflicting views in the judgments of two three judge benches, the Court said:

In any event, given that the decision of the three Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah (supra), we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions: (i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court? (ii) What is the scope and ambit of such preliminary inquiry?

The bench also noted that Section 195(3) CrPC clarifies that the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of the said section.