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AmzadAliv.MarfatAliBiswas,(Calcutta):LawFinderDocId#96909
1997CriLJ4148:1999(1)AICLR35:1998(1)Cal.H.C.N.236:1998(2)Cal.L.T.462
CALCUTTAHIGHCOURT
Before:DibyenduBhusanDutta,J.
Cri.Revn.No.1561of1991.D/d.11.6.1997.
AmzadAliPetitioner
Versus
MarfatAliBiswasandothersRespondents.
ForthePetitioner:J.K.GuptaandMs.BinitaGupta,Advocates.
FortheState:ManasRanjanChakraborty,Advocate.
FortheRespondentNo.1:DipakKr.MukherjeeandAbuHena,Advocates.
A. Criminal Procedure Code , 1973, Sections 340(1) and 482 Order for lodging complaint
under Section 340 (1) No finding recorded to the effect that it is expedient in interest of
justicethatenquiryshouldbemadeintooffenceconcernedwhilepassingtheorderIsillegal
SuchorderissheerabuseofprocessofCourtandcanbequashedunderSection482.
[Paras32,33,34and37]
B. Constitution of India, Article 227 Civil proceedings Illegal order for lodging complaint
passedbyCivilCourtPetitionagainst,forcorrectingsaiderrorShouldbefiledinHighCourt
by invoking its civil jurisdiction Merely because petitioner had invoked criminal jurisdiction
andnotciviljurisdictionisnotagroundtodeprivehimreliefunderArticle227.
[Para45]
Casesreferred:
Dr.PalChowdhuryv.StateofAssam,AIR1960SupremeCourt133:1960CriLJ174.
ChajooRamv.RadheyShyam,AIR1971SupremeCourt1367:1971CriLJ1096.
K.Karunakaranv.T.V.EacharaWarrier,AIR1978SupremeCourt290:1975CriLJ339.
SurendraNathJanav.KumedaCharanMisra,AIR1930Calcutta352.
http://lawfinderlive.com/Judgement.aspx?q=(SEC%20AND%20340%20AND%20OF%20AND%20CRPC)&p=1&pos=1&qType=1
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Brijmohanlalv.Sohanraj,1963(1)CriLJ713.
K.K.Khannav.ExpoEnterprisesIndia,NewDelhi,1984CriLJ1723.
SantokhSinghv.Izhar,AIR1973SupremeCourt2190:(1973CriLJ1176).
LalitMohanMondalv.BinayendraChackraborty,AIR1982SupremeCourt785:(1982CriLJ625).
HarprosadDosv.Emperor,(1913)CalWN647.
StateofGujaratv.VakhatSinghji,AIR1968SupremeCourt1481.
ORDER
Dibyendu Bhusan Dutta, J. By the instant application styled as one under Article 227 of the
ConstitutionofIndia,theaccusedofC.R.CaseNo.120of1991oftheCourtofSubDivisionalJudicial
Magistrate,Lalbag,movedthisCourtinitscriminalrevisionjurisdictionprayingforsettingasidethe
order dated 19th April, 1991 passed in Misc. Appeal No. 80 of 1989 of the Fourth Court of Additional
District Judge, Murshidabad, and also for quashing the criminal proceeding in C.R. Case No. 120 of
1991oftheCourtofSubDivisionalJudicialMagistrate,Lalbag.
2.Thefactsandcircumstancesgivingrisetothepresentapplication,asfarascanbegatheredfrom
thematerialsplacedbeforethisCourt,mayinshort,bestatedasfollows:
On2721981,theaccusedpetitionerinstitutedasuitbeingTitleSuitNo.6of1981intheCourt
oftheMunsif,Lalbagfordeclarationoftitleandinjunctioninrespectofcertainpropertyagainst
therespondentNo.1andsomeothers,basinghisright,titleandinterestinthatpropertyona
deedofsaledeed1031938whichpurportstohavebeenexecutedbyoneKedarBoxMondalin
favourofoneOhedullaMondalandregisteredintheSubRegistryOfficeofJangipur.Beforethe
written statement was filed by the defendants including the respondent No. 1 in the suit, on a
prayer made before the Court, it directed the plaintiff petitioner to file the aforesaid deed of
saledated1031938andthepetitionerfiledthatdeedincompliancewiththatdirection.
Thereafter, the defendants on filing the written statement disputed the genuineness of the said deed
of sale alleging that no such deed was ever executed or registered in the Jangipur SubRegistry
Office.
Thereafter, issues were framed and the suit reached the stage of peremptory hearing but finally the
suitwasdismissedfordefaulton2011988.
Thereafter, the defendant respondent. No. 1 filed an application under Section 340 , Criminal
Procedure Code .before the Court of Munsif, Lalbag, praying for lodging a complaint against the
plaintiff petitioner alleging that the plaintiff petitioner fraudulently and dishonestly used as genuine
theaforesaiddeedofsaledated1031938knowingorhavingreasontobelievethatitwasaforged
document and had thereby committed an offence punishable under Section 471, Indian Penal Code
ThisapplicationwasregisteredasMisc.CaseNo.34of1988oftheCourtofMunsiff,Lalbag.
The plaintiff petitioner contested the Misc. Case denying all the material allegations made in the
application and contending inter aliathat he claimed to have acquired his right, title and interest by
virtue of a sale deed dated 2531975 executed by one Sekh Maniruddin and that the impugned sale
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deeddated1031938wasfiledbyhimnotonhisownbutinpursuanceofthedirectionoftheCourt.
It was also alleged that it was not within his knowledge that the sale deed dated 1031938 was a
forgedoneandthathefiledthesaiddeedwithoutanyknowledgeorreasonstobelievethatitwasa
forgedone.
3.ThelearnedMunsiffheldapreliminaryinquiryanduponconsiderationofalltheevidencethatwas
ledduringthatinquiry,hewasoftheviewthattherespondentNo.1hadnotbeenabletomakeouta
prima facie case against the plaintiff petitioner under Section 471 of the Indian Penal Code and in
such view of the matter, the learned Munsiff dismissed the Misc Case on 2941989 and refused to
lodgeacomplaintasprayedfor.
4. Being aggrieved by this refusal, the respondent No. 1 preferred an appeal being Misc. Appeal No.
80of1989oftheFourthCourtofAdditionalDistrictJudge,Murshidabad.
ThelearnedAdditionalDistrictJudgewasoftheviewthatinviewofspecificassertioninthewritten
statement denying the existence of the impugned deed of sale, the plaintiff petitioner should have
inquired in the matter for verifying the truth or otherwise of the said assertion and if such inquiry
revealed the truth of the assertion, the plaintiff petitioner should have informed the Court of the
circumstances under which he filed the deed and could have withdrawn the suit. But since the
plaintiff, without taking any such step, initially proceeded with the suit and allowed the issues to be
framed and ultimately, when the suit was fixed in the peremptory board, allowed the suit to be
dismissed,thelearnedAdditionalDistrictJudgearrivedataconclusionthatthedeedinquestionmust
beaforgedoneandtheplaintiffpetitionerfiledthesameknowingittobeaforgedone.Insuchview
of the matter, he allowed the appeal and set aside the order of the learned Munsiff directing him to
makeacomplaintagainsttheplaintiffpetitionerinaccordancewiththeprovisionsofSection340(1)
ofCriminalProcedureCode.
5. In pursuance of this direction, the learned Munsiff lodged a complaint with the SubDivisional
Judicial Magistrate, Lalbag, against the plaintiffpetitioner alleging that he had committed offence
underSection471. Indian Penal Code and on the basis of that complaint C.R. Case No. 120 of 1991
was registered and the learned SubDivisional Judicial Magistrate, Lalbag, summoned the petitioner
underSection471,IndianPenalCodeAndhencethepresentapplication.
6. Mr. J.K. Gupta, the learned counsel appearing for the petitioner, assailed the legality of the order
that was passed by the lower appellate Court under Section 341 of Criminal Procedure Code .and
the consequential prosecution on two grounds. First, it is urged that the impugned order was bad by
reasonofthefactthatthematerialsbeforetheappellateCourtwerenotatallsufficienttogiverise
to a prima facie satisfaction of that Court regarding the existence of a prima facie case or any
reasonable foundation for commission of an offence under Section 471 of the Indian Penal Code by
theplaintiffpetitionersoastojustifythedirectionformakingofacomplaint.Second,itisurgedthat
the impugned order suffers from another fatal infirmity by reason of its noncompliance with the
mandatory requirements of recording a specific finding that it is expedient in the interest of justice
thatacomplaintbefiled.
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7. Mr. Manas Ranjan Chakraborty, the learned counsel appearing for the state respondent challenged
the maintainability of the present application on the following grounds. First, the present revision
would not be maintainable in view of the express provisions of Sub Section (2) of Section 341,
CriminalProcedureCode.barringanyrevisionagainstanyappellatedecisionpassedunderSection
341(1).Secondly,ithasbeensubmittedthattheapplicationunderSection340 Criminal Procedure
Code .having been filed before Civil Court viz. The Court of Munsiff, Lalbag was governed by the
procedureofthatCourtviz.theCivilProcedureCodeandastherewasrefusaltomakeanycomplaint
underSection340bythelearnedMunsiffandtheMisc.AppealhavingbeenfiledunderSection 341,
CriminalProcedureCode.beforetheCivilappellatecourtviz.theCourtofAdditionalDistrictJudge,
continued to be a civil proceeding and was also governed by the Civil Procedure Code. Since by the
present application, it is the criminal revisional jurisdiction of this Court (and not civil revisional
jurisdiction)thatissoughttobeinvoked,theapplicationwouldnotbemaintainableunderArticle227
oftheConstitutionsoastoinvokethisCourt'scriminalrevisionaljurisdiction.
8. Mr. Dipak Kumar Mukherjee, learned counsel appearing for the respondent No. 1, adopted the
contentions that were raised by Mr. Chakraborty in challenging the maintainability of the instant
application.
9. The point for my consideration would be whether the impugned order and the prosecution are
liabletobequashed.
10.Section195(1)(b)(i)oftheCodeofCriminalProcedure,1973correspondingtoSection 195(1)(b)
and (c) of the 1898 Code provides that no Court shall take cognizance of any offence punishable
underSection193ofIndianPenalCodewhensuchoffenceisallegedtohavebeencommittedin,or
in relation to, any proceeding in any Court, and of any offence punishable under Section 471 of
Indian Penal Code , when such offence is alleged to have been committed in respect of a document
producedorgiveninevidenceinaproceedinginanycourt.exceptinevidenceinaproceedinginany
Court,exceptonthecomplaintinwritingofthatCourtissubordinate.
11. The procedure for making the complaint is laid down in Sections 340 and 341 of the new Code
(1973)andinSections476,476Aand476BoftheoldCode(1898).
12.Section340ofthenewCodereadsasunder:
"340.ProcedureincasesmentionedinSection195.(1)when,uponanapplicationmadeto
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
proceedinginthatCourt,or,asthecasemaybe,inrespectofadocumentproducedorgivenin
evidenceinaproceedinginthatCourt,suchCourtmayaftersuchpreliminaryinquiry,ifany,as
itthinksnecessary.
(a)recordafindingtothateffect:
(b)makeacomplaintthereofinwriting:
(c)sendittoaMagistrateofthefirstclasshavingjurisdiction:
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(d) take sufficient security for the appearance of the accused before such Magistrate or if the
alleged offence is nonbailable and the Court think it necessary so to do, send the accused in
custodytosuchMagistrate,and
(e)bindoveranypersontoappearandgiveevidencebeforesuchMagistrate.
(2) The power conferred on a Court by Sub Section (1) in respect of an offence may, in any
casewherethatCourthasneithermadeacomplaintunderSubSection(1) in respect of that
offencenorrejectedanapplicationforthemakingofsuchcomplaint,beexercisedbytheCourt
to which such complaint, be exercised by the Court to which such former Court is subordinate
withinthemeaningofSubSection(4)ofSection195.
(3)and(4)..........................................................................................."
13.Section341ofthenewCoderunsasfollows:
"341. Appeal. (1) Any person on whose application any Court other than a High Court has
refusedtomakeacomplaintunderSubSection(1) or Sub Section (2) of Section 340 , or
against whom such a complaint has been made by such Court, may appeal to the Court to
whichsuchformerCourtissubordinatewithinthemeaningofSubSection(4)ofSection 195,
and the superior Court may thereupon, after notice to the parties concerned, direct that
withdrawal of the complaint, or, as the case may be, making of the complaint which such
former court might have made under Section 340 , and, if it makes such complaint the
provisionsofthatSectionshallapplyaccording.
(2) An order under this Section , and subject to any such order, an order under Section 340
shallbefinalandshallnotbesubjecttorevision."
14.Section476,476Aand476BoftheoldCode,insofarastheyarematerialforthepresentcase,
areinthefollowingterms:
"476. (1) When any ...... Court is, whether on application made to it in this behalf for
otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be
made into any offence referred to in Section 195, Sub Section (1), clause (b) or clause (c),
which appears to have been committed in or in relation to a proceeding in that Court, such
Courtmay,aftersuchpreliminaryinquiry,ifany,asitthinksnecessary,recordafindingtothat
effectandmakeacomplaintthereofinwritingsignedbythepresidingofficeroftheCourt,and
shall forward the same to a Magistrate of the first class having jurisdiction, and may take
sufficient security for the appearance of the accused before such Magistrate or if the alleged
offenceisnonbailablemay,ifitthinknecessarysotodo,sendtheaccusedincustodytosuch
Magistrate,andmaybindoveranypersontoappearandgiveevidencebeforesuchMagistrate:
..................................
(2)and(3).........................."
"476A. The power conferred on ..... Courts by Section 476, Sub Section (1), may be
exercised,inrespectofanyoffencereferredtothereinandallegedtohavebeencommittedin
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or in relation to any proceeding in any such Court, by the Court to which such former Court is
subordinate within the meaning of Section 195, Sub Section (3) in any case in which such
former Court has neither made a complaint under Section 476 in respect of such offence nor
rejectedanapplicationforthemakingofsuchcomplaintand,wherethesuperiorCourtmakes
suchcomplaint,theprovisionsofSection476shallapplyaccordingly."
"476B. Any person on whose application any ........ Court has refused to make a complaint
under Section 476 or Section 476A, or against whom such a complaint has been made, may
appeal to the Court to which such former Court is subordinate within the meaning of Section
195, Sub Section (3), and the superior Court may thereupon, after notice to the parties
concerned, direct the withdrawal of the complaint or, as the case may be, itself make the
complaint which the subordinate Court might have made under Section 476, and if it make
suchcomplainttheprovisionsofthatSectionshallapplyaccordingly."
15.SubSection(1)and(2)ofSection340ofthenewCode,insubstance,correspondtoSections
476 and 476A respectively of the old Code, while Sub Section (1) of Section 341 of new Code
Corresponds to See. 476B of the old Code with this difference that under the old Code the superior
Court may itself make the complaint while under the new code it may direct the making of the
complaint.
Sub Section (2) of Section 341 of the new Code is, however, a new provision making an order
underSubSection(1)finalandbarringarevisionagainstsuchanorder.
16. Sub Section (1) of Section 340 of the new Code and the corresponding Section 476 of the old
Code speak of two kinds of inquiry. One is an 'inquiry into the offence', while the other is a
'preliminaryinquiry'.
17.Onaplainreadingofthesetwoprovisions,itwouldappearthatthetwoenquiriesaremeantfor
twodifferentCourts.TheenquiryintotheoffenceistobemadebytheCourttowhichthecomplaint
is made, while the preliminary enquiry is to be made for making any complaint, while the enquiry
intotheoffencewillhavetobemadeonlyafterthecomplaintismade.
18.Thenagain,theexpression"suchpreliminaryenquiry,ifany,asitthinksnecessary"wouldclearly
suggest that the preliminary enquiry is only optional and neither compulsory nor obligatory and the
mode and extent of such an inquiry is at the discretion of the Court. The only purpose for this
preliminary inquiry is to form an opinion as to whether the offence concerned appears or does not
appeartohavebeencommitted.Inotherwords,thepreliminaryinquiryissolelyforthepurposeofa
primafaciesatisfactionoftheCourtastowhethertheoffence,fortheinquiryofwhichthecomplaint
istobelodged,appearstohavebeencommitted.
19. On a plain reading of the relevant provisions of SubSection (1) of Section 340 of the new Code
as well as Section 476 of the old Code, it again becomes clear that before making a complaint, the
Courtconcernedistorecordafindingtotheeffectthatitisoftheopinionthatitisexpedientinthe
interestofjusticethataninquiryshouldbemadeintotheoffenceinquestion.
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20.TheoffenceunderSection471 of Indian Penal Code, in the instant case, is alleged to have been
committedinrespectofaregistereddeedofsaledated10338whichwasproducedbytheplaintiff
petitionerinTitleSuitNo.6of1981intheCourtofMunsif,Lalbag.
21. In order to establish an offence under Section 471 of Indian Penal Code, the following essential
ingredients are required to be proved viz. (i) that the document is forged (ii) that it has been
fraudulently or dishonestly used as genuine and (iii) that such user was coupled with either the
knowledgeorthereasonstobelievethatthedocumentisforged.
22. The ld. Munsif who held the preliminary enquiry did not attempt to record any prima facie
satisfactionastowhetherornottheimpugneddeedwasforged.He,however,wasnotsatisfiedasto
theexistenceofaprimafaciecaseagainsttheplaintiffpetitionertotheeffectthathefraudulentlyor
dishonestly used the document concerned as genuine with the knowledge or belief that it was a
forgedone,andinsuchviewofthematter,waspleasedtorefusetomakeacomplaintunderSection
340(1).
23. SubSection (1) of Section 341 of the new Code and the corresponding Section 476B of the Old
Code provide for an appeal against such a refusal to make a complaint under SubSection (1) of
Section 340 (new) or Section 476 (old) as the case may be. The appellate Court may, under Sub
Section(1)ofSection341(new),directthemakingofthecomplaintwhichmighthavebeenmadeby
the original Court under Section 340 and if it makes such complaint, the provisions of Section 340
shallapplyaccordingly.
24. In the instant case, the appellate Court itself did not lodge the complaint. It directed the making
ofacomplaintbytheld.MunsifandtheId.Munsifmadethecomplaintinpursuanceofthatdirection.
25.TheappellateCourtonthebasisofcertainconductonthepartoftheplaintiffpetitionerdrewan
adversepresumptionagainsthimtotheeffectthattheimpugneddeedwasaforgedoneandthathe
filed it knowing it to be so. The appellate Court recorded the above presumption in the impugned
order and directed the ld. Munsif to make the complaint, as it was of the view that the Id. Munsif
shouldbedirectedtomakethecomplaint.Nowhereintheimpugnedorderitself,theappellateCourt
ortheld.Munsif,beforeactuallymakingthecomplaintinpursuanceofsuchdirection,didexpressly
recordanyfindingtotheeffectthatitwasexpedientintheinterestofjusticethataninquiryintothe
offenceunderSection471shouldbemade.
26.InAIR1960SC133:(1960CriLJ174),Dr.PalChowdhuryv.StateofAssam, the case was
one in which the High Court directed a complaint to be filed against a witness for giving false
evidence under Section 193 of Indian Penal Code and was governed by SubSections (1) and (5) of
Section479AoftheoldCode.Section479A,asintroducedbytheAmendmentof1955,overridesthe
provisionsofSections476to479fortheprosecutionofapersonforgivingorfabricatingevidence,if
in respect of such a person proceedings may be taken under these Sections. But the provisions of
SubSections (1) and (5) of Section 479A of the 1955 Code correspond more or less to SubSection
(1)ofSection340andSubSection(1)ofSection341ofthe1973CodeandSections476and476Bof
the 1898 Code. The combined effect of SubSections (1) and (5) of Section 479A is to require the
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Court intending to make a complaint, to record a finding that in its opinion a person appearing as a
witnesshasintentionallygivenfalseevidenceandthatfortheeradicationoftheevilsofperjuryand
intheinterestofjustice,itisexpedientthatsuchwitnessshouldbeprosecutedfortheoffenceandto
give the witness supposed to be proceeded against an opportunity of being heard as to whether a
complaintshouldbemadeornot.TheSupremeCourtfoundthatnoneoftheaboveconditionsofthe
SectionwereobservedbytheHighCourtwhenitdirectedthecomplainttobemade.Intheorderof
the High Court there was no finding of a prima facie nature recorded by it that the witness had
intentionallygivenfalseevidenceandthatitwasexpedienttoproceedagainsthimfortheeradication
oftheevilsofperjuryandintheinterestofjustice.TheSupremeCourtheldthattheorderwasmade
in breach of the express provisions of both SubSecs.(1) and (5) of Section 479A and could not be
allowedtostand.
27.InAIR1971SC1367:(1971CriLJ1096),ChajooRamv.RadheyShyam,anapplicationunder
Section476oftheoldCodewasmovedbeforetheHighCourtforsanctioningprosecutionforperjury.
The Supreme Court held that before sanctioning prosecution for perjury the Court must be satisfied
that there is a prima facie case of deliberate falsehood on a matter of substance and that there is
reasonablefoundationforthecharge.
28.InAIR1978SC290:(1975CriLJ339),K.Karunakaranv.T.V.EacharaWarrier,itwasheld
thatinaninquirybeforelodgingacomplaintunderSection340ofthenewCode,theonlyquestionis
whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to
establish the specific offence and whether it is also expedient in the interest of justice to take such
action.
29. In the case of SurendraNathJanav.KumedaCharanMisrareportedinAIR1930Calcutta
352,thefactsarealmostsimilartothoseofthepresentcase.Inthatcase,acomplaintwasordered
to be drawn up on appeal by the District Judge under Sections 465 and 471 Indian Penal Code and
althoughtheld.DistrictJudgegaveafindingthataclearprimafaciecasehadbeenmadeoutyethe
failed to record a finding that it was expedient in the interest of justice that a complaint should be
filed as required under Section 476 (old). It was urged before the Division Bench of our High Court
thatthefactthataprimafaciecasehadbeenmadeoutcoupledwiththefactsthatthecomplainthad
beenorderedwassufficienttoenabletheCourttointerthattheopinionofthelowerappellateCourt
was that it was expedient in the interest of justice that such an inquiry should be made. But this
contention was repelled by our High Court and it was held that it is not possible to say that an
expressstatutoryprovisionforafindingtoberecordedissatisfiedbyinferenceswhichmayormay
notbedrawnfromotherfindingsoffactsarrivedatbythelowerappellateCourt.Insuchviewofthe
matter,theorderoftheDistrictJudgewassetaside.
30. This Division Bench judgment of our High Court was relied upon by the Rajasthan High Court in
the case of Brijmohanlal v. Sohanraj reported in 1963 (1) Cri LJ 713 and it was held that the
requirementofrecordingofafindingthatitisexpedientintheinterestofjusticethatacomplaintbe
filed under old Section 476 (which corresponds to Section 340 of the present Code) that an inquiry
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shouldbemadeintotheoffenceismandatoryandisaprerequisiteformakingofacomplaintandif
such a requirement is not complied with before the order of prosecution is passed, the order is
vitiatedanddeservestobesetaside,asbeinginthebreachoftheexpressprovisionsofSection476
(old).
31. In the case of K.K.Khannav.M/s.ExpoEnterprisesIndia,NewDelhireportedin1984Cri
LJ 1723, a criminal complaint for offences alleged to be have been committed under Section 191
read with Section 193 of Indian Penal Code was directed to be lodged under Section 340 of the new
Code. The order for lodging the complaint was held by the Delhi High Court to have been vitiated
sinceitwasnowhereopinedintheorderitselforrecordedasafactthatthelodgingofthecomplaint
wasexpedientintheinterestofjusticeasrequiredunderSection340.
Incidentally, it may be pointed out that the Supreme Court in the case of Santokh Singh v. Izhar
reportedinAIR1973SupremeCourt2190:(1973CriLJ1176), observed : "Every incorrect or
false statement does not make it incumbent on the Court to order prosecution. The Court has to
exercise judicial discretion in the light of all the relevant circumstances when it determines the
questionofexpediency".
"The Court orders prosecution in the larger interest of the administration of justice and not to
gratifyfeelingsofpersonalrevengeorvindictivenessortoservetheendofaprivateparty.
Relying on these observations of the Supreme Court, the Delhi High Court in K. K. Khanna's
case (1984 Cri LJ 1733) (supra) further held : The requirement of law was of fundamental
importance and the omission in that regard vitiates the impugned order. Even though
prosecutionforperjurymaybepossiblebutSection340oftheCodedoesnotpermitcomplaint
to be lodged in all those cases and lodging the complaint is permissible only when the Court
making the complaint is of the positive view that the lodging of the complaint would be
expedientintheinterestofjustice".
32. Thus, upon a plain reading of SubSection (1) of Section 340 of the present Code of Criminal
Procedure and consideration of the decisions cited above, it is found that the law is well settled on
thepointthatanorderforlodgingacomplaintunderSection340(1)withoutexpresslyrecordingany
findingtotheeffectthatitisexpedientintheinterestofjusticethataninquiryshouldbemadeinto
theoffenceconcernedisvitiatedandillegalbeinginbreachoftheexpressprovisionsofSection340
(1) and is liable to be set aside. The ld. Counsel appearing for the opposite parties were also frank
enoughtoconcedethislegalposition.
33. It is thus needless to comment that the impugned order directing making of complaint and the
consequentprosecutionbasedonthatorderwereper se illegal and are liable to be quashed on that
groundalone.
34.Whentheimpugnedorderisliabletobesetasideonlybyreasonofthefactthatitdidnotcomply
with the mandatory requirements of recording an express finding to the effect that it is expedient in
the interest of justice to make a complaint under Section 340(1), the question whether or not
materials on record were sufficient to give rise to the satisfaction of the Court below regarding the
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existence of a prima facie case under Section 471 of Indian Penal Code so as to justify lodging of a
complaint does not call for any decision by this Court and accordingly, I need not examine the
impugnedordersoastofindoutwhetherornotitalsosuffersfromtheinfirmityinthisregard.
35. I now come to the question of maintainability that was raised on behalf of the opposite parties.
SubSection(2)ofSection341CriminalProcedureCode.providesthatanorderunderSubSection(1)
of the Section shall be final and shall not be subject to revision. The corresponding Section 476B of
the old Code did not, however, contain any such provision. In view of the express bar under Sub
Section(2)ofSection341ofthenewCode,theimpugnedorderisnotsubjecttorevision.
36. But, in the case of Lalit Mohan Mondal v. Binayendra Chackraborty reported in AIR 1982
SupremeCourt785:(1982CriLJ625), it was held that although an order passed in appeal under
Section 341 Criminal Procedure Code.would not he revisable by the High Court, there could be no
doubt that the High Court is entitled to examine the matter under Section 482 Criminal Procedure
Code.whichexpresslyoverrulesthebarcontainedinSection341oftheCode.
37. The impugned order which constitutes the very foundation of the impugned prosecution against
thepetitionerbeingillegalandbad,itwouldbesheerabuseoftheprocessoftheCourttoallowthe
saidordertostandortheprosecutiontobeproceededwith.Itcannot,therefore,besaidthatitisnot
a fit and proper case for exercise of the inherent jurisdiction of the Court under Section 482 of the
CriminalProcedureCode.inordertopreventtheabuseoftheprocessoftheCourt.
38. The present application, of course, has been styled as one under Article 227 of the Constitution
andnotunderSection482oftheCodeofCriminalProcedure.Now,inherentpowersarenotconferred
but are inherently possessed. Section 482 gave no new powers but preserved only those which this
Court are already inherently possessed of by virtue of its duty to do justice. As such, the mere fact
that the present application has not been described, in so many words, as one under Section 482
cannotdisentitlethisCourttopasssuchorderasmaybenecessarytopreventabuseoftheprocess
of any Court or otherwise to secure the ends of justice. In this view of the matter, it would
necessarily follow that the impugned order of the lower appellate Court and the consequent
prosecution should be quashed in exercise of inherent powers of this Court in order to prevent the
abuseoftheprocessoftheCourt.
39.Thequestionthatstillawaitsmydecisionforacademicpurposeiswhetherthepresentapplication
by which the petitioner purports to invoke the criminal revisional jurisdiction of this Court under
Article227oftheConstitutionismaintainable.
40. It is contended on behalf of the opposite parties that since the application under Section 340 (1)
and the appeal under Section 341 of the code of Criminal Procedure were filed before Civil Courts,
they were governed by the Code of Civil procedure with the result that the proceeding which forms
thesubjectmatterofchallengeintheinstantapplicationunderArticle227oftheConstitutionisacivil
proceeding and not a criminal proceeding but since by this application the criminal jurisdiction is
soughttobeinvoked,theapplicationisnotmaintainable.
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41.ADivisionBenchdecisionofourHighCourtreportedinreportedin1981(1)CalHN415:(1981
CriLJ1102),SambhuNathSadhukhanv.MegheshKumarSadhukhan, has been cited on behalf
oftheoppositepartiesinsupportoftheabovecontention.
In that case, which was governed by the old Code of Criminal Procedure, two questions fell for
determination of the Court. The first question was whether an application filed under Section 476 of
theoldCode(whichcorrespondstoSection340(1)ofthenewCode)inacivilCourtistobegoverned
by the Code of Civil Procedure and the second question was whether a revisional application against
anyorderpassedinsuchproceedingistobemadeunderSection115oftheCodeofCivilProcedure
orSection439oftheoldCodeofCriminalprocedure.
Onthefirstquestion,theCourtconsideredthediametricallyoppositeviewstakenbyfullBenchesof
differentHighCourtsandheldthatsolongtheCourtisnotforcedtochangeitscharacterbyexpress
provision, it must maintain its own character. Or, in the other words, it was held that when the
legislature is silent as to the procedure to be followed for dealing with an application under Section
476(old)oranappealunderSection476B(old),itmustbegovernedbytheCodeofCivilProcedure,
the procedure of the civil Court, if filed before a Civil Court, or by the Code of Criminal Procedure,
theprocedureofthecriminalCourt,itfiledbeforeacriminalCourt.
So far as the ancillary question relating to the revisional application formulated above is concerned,
theCourtreliedonaFullBenchdecisionofourHighCourtinthecaseofHarprosadDosv.Emperor
reported in (1913) A Cal WN 647 where it was expressly laid down that in the case of an order
passed under Section 476 of the old Code by a Civil Court. Section 439 of the old Code of Criminal
ProcedurehadnoapplicationasitwasnotaninferiorcriminalCourtandthatsuchanordercouldbe
revised by the High court only under Section 115 of the Code of Civil Procedure . In Sambunath
Sadhukhan's case (1981 Cri LJ 1102)(supra), the application under Section 476 of the old Code filed
before a civil Court was dismissed for default and the Court allowed an application under Order 9
Rule 9 and Section 151 of the Code of Civil Procedure that was filed for setting aside the order of
dismissal and restored the original application under Order of dismissal and restored the original
applicationunderSection476CriminalProcedureCode.Aggrievedthereby,oneoftheoppositeparties
in that application moved the High Court in its criminal revisional jurisdiction by filing an application
which was described as one under Article 227 of the Constitution and Section 397/401 read with
Section 482 of the Code of Criminal Procedure, 1973. Relying on the Full Bench decision of our High
Court in the case of Harprosad Dos v. Emperor (supra), the Court held that the said application was
not maintainable in so far as it sought to invoke the criminal revisional powers of the Court. On the
question of maintainability of the application under Art 227 of the Constitution, it observed :
"InstitutingtheapplicationasoneunderArticle227oftheConstitutionofIndiaisofnoassistanceto
petitioner as the law is now settled that the above constitutional provision cannot be availed of to
circumvent specific provision of statute and Section 115 of the Code of Civil Procedure provides for
effectiveandadequateremedytomeettheneedsoftheInstantcase."
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42. According to Mr. J.K. Gupta, the decision in Sambhunath's case (1981 Cri LJ 1102) (supra) is
distinguishablefromthepresentcaseonthefollowinggrounds.Theorderunderrevisioninthatcase
waspassedunderOrder9Rule9 Civil Procedure Code and it was revisable by the High Court under
Section 115 of the Civil Procedure Code which also provided for adequate and effective remedy to
meet the needs of that case, but it is the appellate decision reversing the refusal of the initial Court
to make a complaint under Section 340 of Criminal Procedure Code.and directing the lodging of a
complaintthatformsthesubjectmatterofchallengeinthepresentcase.Thatapart,SubSection(2)
of Section 341 (new) expressly bars a revision against such an order under SubSection (1) of
Section341whileinSection476BoftheoldCode,therewasnosuchprovisionasenvisagedinSub
Section (2) of Section 341 of the new Code expressly banning any revision. That being so, it is
strenuously contended by Mr. Gupta that the said case cannot be if any assistance to the opposite
parties in resisting the present application under Article 227 and, indeed, I do not find any cogent
groundtorejectthiscontention.
43.Now,itissettledlawthatthepowerunderArticle227oftheConstitutioninvolvesadutyonthe
partoftheHighCourttokeepallCourtswithintheboundsoftheirauthoritiesandtoseethattheydo
what their duty requires. This power under Article 227 can also be exercised by the High Court suo
motu and is not governed by any technical rules as applicable in cases of exercise of power under
Article226.
44.ItisalsosettledlawthatthepowersoftheHighCourtunderArticle227cannotbetakenawayor
barredbyanylegislationshortofconstitutionalamendmentnorcanitbebarredbyprovidingthatthe
decision of an inferior tribunal shall be final. Incidentally, the case of State of Gujarat v. Vakhat
Singhji reported in AIR 1968 Supreme Court 1481 can be cited here in support of the above
proposition.
45.Now,whentheHighCourtfindsthattheinferiorCourt,CivilorCriminal,hasnotactedaccording
to the mandate of law resulting in gross abuse of the process of the Court, the extraordinary power
of the High Court under Article 227 of the Constitution can always be exercised. It is true that the
proceeding concerned being civil proceeding all along by reason of the fact that it was being
conducted in the inferior Civil Courts, it is the Civil jurisdiction of this Court that ought to have been
invoked by the petitioner for correcting the error that has been committed in the proceeding. But
then,itwouldbetoomuchtoholdthatthepetitionerwouldnotbeentitledtogetanyreliefwhich,in
the facts and circumstances of the case, could have been granted by this Court in exercise of its
power of superintendence under Article 227 of the constitution only on the hyper technical ground
that, strictly speaking, the civil jurisdiction (and not the criminal jurisdiction) of this Court should
havebeeninvokedbythepetitioneratthefirstinstancewhentheapplicationwasinitiallyadmitted.
46. Thus, having anxiously considered all aspects of the matter, I am of the view that there is no
legal bar to granting the reliefs sought for by the petitioner in the instant case. In the result, the
application succeeds. The impugned order of the Id. Additional District Judge passed in the Misc.
AppealNo.80of1989directingthelodgingofthecomplaintagainstthepetitionerunderSection471
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of Indian Penal Code and the subsequent initiation of the prosecution on the basis of a complaint
lodged by the Id. Munsiff in pursuance of the said direction of the Id. Additional District Judge are
herebyquashed.Theapplicationisthusdisposedof.
Applicationallowed.
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