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2002 SCC OnLine P&H 439 : (2002) 3 RCR (Cri) 328 : 2002 Cri LJ
4485

In the High Court of Punjab and Haryana

(BEFORE R.C. KATHURIA, J.)

Devinder Mohan Zakhmi … Petitioner;

Versus
The Amritsar Improvement Trust, Amritsar and
others … Respondents.
Crl. M. 14943-M of 2002
Decided on May 9, 2002
The Judgment of the Court was delivered by
R.C. KATHURIA, J.:— Petitioner, Devinder Mohan Zakhmi, seeks
quashing of order dated 2.4.2002 (Annexure P-4) passed by Civil Judge
(Junior Division), Amritsar, on an application filed by him under Section
340 of the Code of Criminal Procedure (hereinafter referred to as the
Code).
2. The facts have to be noticed briefly in order to focus the
controversy raised in the present petition.
3. Petitioner had filed suit for mandatory injunction seeking
directions against the Amritsar Improvement Trust, Amritsar, through
its Chairman (respondent No. 1) and others to allot alternative plot in
lieu of plot No. 2564 which was pursuance to the order passed by this
Court as the plot so allotted was located in a low lying area and it was
not possible for the petitioner to carry out any construction on the
same. It was also alleged by the petitioner in the suit that a number of
other vacant plots were available with the respondents-Improvement
Trust at Ranjit Avenue, Amritsar but in the reply filed by respondent
No. 1, controverting the stand of the petitioner, the availability of plots
was denied.
4. During the pendency of the suit, an application under Order
XXXIX rules 1 and 2 of the Code of Civil Procedure was filed by the
petitioner on which the trial Court had directed respondent No. 1 to file
an affidavit of the competent Authority to specify that no vacant plot
measuring 150 sq. yards was available in Blocks “B and E” of Ranjit
Avenue, Amritsar. Parkash Singh, respondent No. 2, who is posted as
Senior Assistant in the office of respondent-Trust filed affidavit dated
23.12.1998 before the trial Court stating therein that no plot measuring
150 sq. yards was available in Blocks B and E in Ranjit Avenue,
Amritsar. Therefore, the petitioner filed an application under Order XI
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rule 15 of the Code of Civil Procedure so as to seek direction to

respondent No. 1 to produce the allotment Register relating to Blocks B
and E in Ranjit Avenue, Amritsar, which was allowed by the Court.
During inspection of the register, the petitioner detected that bogus
and fictitious allotments were shown by respondent No. 1 in order to
deny the claim of the petitioner. His enquiry disclosed that some vacant
plots were available as on 16.7.1999 which was in contradiction to
averments made in affidavit dated 23.12.1998 with this hack-ground,
on 30.7.1999 the petitioner filed

Page: 329

an application under Section 340 of the Code for taking action against
respondent No. 2 for having committed offence referred to in clause (b)
of sub-section (1) of Section 195 of the Code. Upon this, a preliminary
enquiry was conducted by the trial Court in terms of requirement of
Section 340 of the Code. Petitioner himself appeared as a witness and
thereafter closed his evidence on 29.10.2001 whereafter the trial Court
adjourned the application for consideration for 22.11.2001 which was
again adjourned to 14.12.2001. Thereafter, written arguments were
filed by the petitioner and the matter was adjourned to 4.1.2002. On
4.1.2002, respondents filed an application under Section 195 of the
Code for permission to adduce evidence which was allowed by the Civil
Judge (Junior Division). Amritsar, as per order dated 2.4.2002. It is this
order which has been assailed in the present petition.

5. Notice of the petition was given to the respondents. No one has

put in appearance on their behalf.
6. I have heard learned counsel for the petitioner at length.
7. Learned counsel for the petitioner has vehemently contended
before me that during the course of preliminary enquiry proceedings in
terms of Section 340 of the Code, respondents have no right to
participate and adduce evidence and the prayer made by the
respondents in this regard allowed by the Civil Judge (Junior Division),
Amritsar, as per order dated 2.4.2002 is wholly unjustified and not
tenable in law. He placed reliance on the observations made in case
Madan Lal Sharma v. Punjab and Haryana High Court though its
Registrar, 2000 (1) RCR 592, wherein it was laid down that no hearing
is required to be given to the accused before filing of the complaint
because the accused can raise all defences before the Magistrate when
the complaint is filed. Further reference was made to observations of
the Apex Court in Pritish v. State of Maharashtra, 2002 (1) RCR (Crl.)
92 wherein it was observed in paras 9 and 10 as under:—
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“9. 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.
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 Court”. 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 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
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position, the Magistrate on receiving the complaint shall

proceed

Page: 330

under Section 238 to Section 243 of the Code.”

8. The entertainment of the application of respondents by the trial

Court in order to enable them to produce evidence in defence, as such
was against the mandate of law. The findings of the trial Court that the
provisions of Section 340 of the Code do not propose to shut down all
gates for the respondents to place their case before the Court and these
provisions are only directive in nature, as such cannot be accepted in
the face of the dictum of law laid down in the above-mentioned cases.
Manifestly, the trial Judge has committed a patent error in passing
order dated 2.4.2002 and for that reason, the same cannot be
sustained.
9. For the foregoing reasons, the petition is allowed and order dated
2.4.2002 set aside.
Petition allowed.
———
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