Radhika Garg W/o Ritwik Garg (MP HC) (W.P. No.1848/2017 & W.P. No.2587/2017)
11. The Supreme Court in the matter of Pritish Vs. State of Maharashtra and others reported in (2002) 1 SCC 253 while considering the scope of Section 340 of the Cr. P.C. has held as under:-
“Reading of the sub-section makes it clear that the hub of this provision 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. It is important to notice that 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. It should again be remembered that the preliminary inquiry contemplated in the sub-section is not for finding whether any particular person is guilty or not. Far from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the offence which appears to have been committed.”
12. In the subsequent judgment in the matter of Iqbal Singh Marwah and another Vs. Meenakshi Marwah and another reported in 2005(2) G.L.H. 413 the Supreme Court has held as under:-
“In view of the language used in Section 340 Cr.P.C. the Court is not bound 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 interest of justice." This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will 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 administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in Court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the Court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause (b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a victim of a crime is rendered remediless, has to be discarded.”
14. Having regard to the aforesaid provision of law, it is clear that when an application under Section 340 Cr. P.C. is filed, the trial Court is required to examine if on the basis of the available material a prima facie case for making a complaint is made out and is also required to see if in its opinion it is expedient in the interest of justice that inquiry should be made into an offence referred to in Section 195(1)
(b). The necessity of action will arise if the offence appears to have been committed in or in relation to the proceedings of that court and that too in respect of a document produced or given in evidence in a proceedings in that court.
15. The impugned order reveals that the trial Court has rejected the application solely on the ground that in the case no opinion has been given by the court about producing false evidence or facts, nor any inquiry has been made and finding has been recorded. The trial Court has rejected the application mentioning that without the opinion of the court on the basis of the documents, the action under Section 340 Cr .P.C. cannot be taken, but while doing so trial Court has failed to appreciate that it is the Court concerned where application is filed, which has to form the opinion one way or the other in the light of relevant parameters given in the Section itself.
16. The impugned order passed by the trial Court reveals that the trial Court has failed to consider the scope and requirement of Section 340 and has rejected the application without forming any opinion in either way.
17. Hence, the impugned order passed by the trial Court cannot be sustained and is hereby set aside with a direction to the trial Court to decide the applications afresh, in accordance with law.