ASISH MONDAL Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) INVOKING Section 482 of the Code of Criminal Procedure the petitioner moved the instant criminal revision for quashing of a proceeding relating to an offence punishable under Section 193 of the Indian Penal Code pending against him before the Learned Additional Chief Judicial Magistrate, Tehatta on the sole ground that making of the complaint, on the basis of which the aforesaid proceeding was instituted, was not in accordance with the mandatory provision of Section 340 of the Code of Criminal Procedure.

(2.) MR. Rajdeep Majumder, the learned advocate appearing in support of this application strenuously submitted that before making the complaint which gave rise to the aforesaid proceeding the Learned Additional Sessions Judge, Fast track Court, Tehatta held no preliminary enquiry nor recorded his satisfaction that for the interest of justice it was expedient to make such complaint and as such due to non-following of the mandatory requirements of law as prescribed in section 340 of the Code of Criminal Procedure the very initiation of the impugned proceeding has been completely vitiated and the same is liable to be quashed. On the other hand, Mr. Sobhendu Sekhar Roy, the Learned Counsel appearing on behalf of the State submitted that holding of preliminary enquiry and formation of opinion by the Court itself before whom such offence has allegedly been committed in relation to a proceeding, is mandatory in terms of section 340 of the Code of Criminal Procedure and no complaint can be sustained where such mandate has not followed.

(3.) IT is no doubt true that it is the mandate of law that before making any complaint in respect of any offence referred to in Clause (b) of sub-section (1)of Section 195 of the Code, which appears to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court, it is incumbent upon the Court before whom such offence has been committed to hold a preliminary enquiry, record a finding and form an opinion that making enquiry is expedient in the interest of justice. In absence of formation of opinion and a preliminary enquiry, lodging of any complaint by a Court in respect to any offence referred in Clause (b) of sub-section (1) of Section 195 of the Code must be held to be illegal and without jurisdiction.