Post by Adv. Dhruv on Aug 12, 2015 10:30:50 GMT
CAN COURT STRAIGHT AWAY ISSUE NOTICE ON APPLICATION U/S 340 CrPC ?
Section 340 of CrpC deals with Procedure in cases mentioned in section 195, it sates as follows :-
(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 may be, 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.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195.
A plain reading of sub-sections (1) and (3) of Section 340 of the Code of Criminal Procedure make it clear that an application under that section can be made by the accused in a criminal case or any one in relation to a proceeding in that court as the case may be, praying the court to enquire and make a complaint in writing to prosecute certain person/persons for any of the offence referred to in clause (b) of sub-section (1) of Section 195 of the Code of Criminal Procedure. Further, Section 340 contemplates the procedure to be followed by the Court on receiving such application. An offence under Section 195 of the Penal Code is referred to in Section 195(1)(b) Cr.P.C.
On an application under Section 340, Cr.P.C. the Court is required to consider the application and if it is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195 of Cr.P.C. which appears to have been committed in or in relation to a proceeding in that court or as the case may be, may proceed to make a preliminary enquiry and thereafter the court is required to record a finding to that effect, make a complaint thereof in writing and then send it to a Magistrate of the First Class having jurisdiction. An offence under Section 195 of IPC is one of the offences referred to in Section 195(1)(b)(i) of Cr.P.C. But the court on receiving an application under Section 340, Cr.P.C. cannot straight away proceed to issue notice against whom such application is made.
Krishnappa vs Thoppaiah Shetty [1997 CriLJ 188]
Locus of the Applicant under Section 340 CrPc ?
In N.Natarajan Vs. B.K. Subba Rao, 2003 (2) SCC 76 the Court has rightly observed that under criminal law anybody can be complainant, who may be aware of the offence.
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Perusal of the section 340 Cr.P.C., would show that before any action under section 195 Cr.P.C. is taken, the Court must form an opinion that it is expedient in the interest of justice that an inquiry should be made into an offence referred to in clause (b) of subsection (1) of section 195 Cr.P.C., which appears to have been committed in or in relation to a proceeding before the Court in respect of a document produced or given in evidence. Therefore, firstly, the Court must form an opinion as to whether, it is expedient in the interest of justice that an inquiry must be held before proceeding under section 195(1)(b)(i)&(iii) and after holding preliminary inquiry, the Court can give a finding to that effect or can make a complaint thereafter in writing or send the matter to the Magistrate of First Class having the jurisdiction or take sufficient security for the appearance of the person before the Magistrate etc.
Section 340 of CrpC deals with Procedure in cases mentioned in section 195, it sates as follows :-
(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 may be, 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.
(2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of section 195.
(3) A complaint made under this section shall be signed,-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195.
A plain reading of sub-sections (1) and (3) of Section 340 of the Code of Criminal Procedure make it clear that an application under that section can be made by the accused in a criminal case or any one in relation to a proceeding in that court as the case may be, praying the court to enquire and make a complaint in writing to prosecute certain person/persons for any of the offence referred to in clause (b) of sub-section (1) of Section 195 of the Code of Criminal Procedure. Further, Section 340 contemplates the procedure to be followed by the Court on receiving such application. An offence under Section 195 of the Penal Code is referred to in Section 195(1)(b) Cr.P.C.
On an application under Section 340, Cr.P.C. the Court is required to consider the application and if it is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195 of Cr.P.C. which appears to have been committed in or in relation to a proceeding in that court or as the case may be, may proceed to make a preliminary enquiry and thereafter the court is required to record a finding to that effect, make a complaint thereof in writing and then send it to a Magistrate of the First Class having jurisdiction. An offence under Section 195 of IPC is one of the offences referred to in Section 195(1)(b)(i) of Cr.P.C. But the court on receiving an application under Section 340, Cr.P.C. cannot straight away proceed to issue notice against whom such application is made.
Krishnappa vs Thoppaiah Shetty [1997 CriLJ 188]
Locus of the Applicant under Section 340 CrPc ?
In N.Natarajan Vs. B.K. Subba Rao, 2003 (2) SCC 76 the Court has rightly observed that under criminal law anybody can be complainant, who may be aware of the offence.
________________________________________________________________________
Perusal of the section 340 Cr.P.C., would show that before any action under section 195 Cr.P.C. is taken, the Court must form an opinion that it is expedient in the interest of justice that an inquiry should be made into an offence referred to in clause (b) of subsection (1) of section 195 Cr.P.C., which appears to have been committed in or in relation to a proceeding before the Court in respect of a document produced or given in evidence. Therefore, firstly, the Court must form an opinion as to whether, it is expedient in the interest of justice that an inquiry must be held before proceeding under section 195(1)(b)(i)&(iii) and after holding preliminary inquiry, the Court can give a finding to that effect or can make a complaint thereafter in writing or send the matter to the Magistrate of First Class having the jurisdiction or take sufficient security for the appearance of the person before the Magistrate etc.