Whether it is necessary to hear accused prior to registration of offence U/S 340 of CRPC?

In the process of formation of opinion, the learned Judge if thinks that some more documents which are referred to by the parties are required then he may call and rely on the same to initiate inquiry under section 340 of Code of Criminal Procedure by the Court. To initiate criminal inquiry against someone is a serious matter and therefore, the Court while forming opinion has to consider the relevant documents or the evidence carefully. Generally decision taking often invites disapproval from the losing party. Forming of opinion is making up mind. Therefore the learned Judge needs to be candid in making up mind. The best source for forming opinion is verification of facts and for the purpose of verification, the true and correct facts should be placed before the Judge. In the process of forming opinion in the inquiry the procedural power to call the witness, to bring the documents revealing the true facts, vests with him. Thus section 311 of Code of Criminal Procedure is helpful not only in the trial but also even in any inquiry or any other proceedings under the Code to get true facts on record. Before registering the complaint by the Magistrate under section 340 of Code of Criminal Procedure hearing the person against whom prosecution is likely to be instituted is not contemplated. A respondent who will face inquiry has every right to know and is to be heard in the proceeding once the complaint is registered and the proceedings are conducted under section 340 of Code of Criminal Procedure, but not at the stage of making of mind by the Judge whether to refer the matter for registering the complaint to the Magistrate under section 340 of Code of Criminal Procedure. In support of this, I rely on the judgment of Pritish (supra) passed by Supreme Court. The Hon'ble Apex Court in the judgment of Pritish (supra) has observed as under:

"14. Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a complaint, as well as the party against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of hearing to the would be accused...."

13. In the present case, the learned Judge has rightly not heard the respondent against whom the application is made under section 340 of Code of Criminal Procedure. Thus, the order dated 16.02.2017 rejecting the review of order dated 11.01.2017 cannot be faulted with.

IN THE HIGH COURT OF BOMBAY

Writ Petition (S.T.) No. 4899 of 2017

Decided On: 17.04.2017

 Union of India and Ors. Vs. Haresh Virumal Milani

Hon'ble Judges/Coram:

Mridula Bhatkar, J.

Citation: 2017(4) MHLJ 441.

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