A Preliminary Inquiry Under Section 340 Crpc: Mandatory Or Discretionary?

Section 195 of the Code of Criminal Procedure, 1973 bars the court from taking cognizance of offences relating to contempt of lawful authority of public servants, except on a complaint in writing of the public servant concerned or of some other public servant to which he is administratively subordinate. As per the Hon'ble Supreme Court, there are two pre-conditions for initiating proceedings under Section 340 CrPC: Firstly, the material produced before the court must establish a prima facie case for a complaint for the purpose of inquiry into an offence referred to in clause of sub-section of Section 195 CrPC which states "of any offence punishable under any of the following sections of the Indian Penal Code, namely, Sections 193 to 196, 199, 200, 205 to 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court," and secondly, it is expedient in the interests of justice that an inquiry should be made into the alleged offence. In Iqbal Singh Marwah v. Meenakshi Marwah the Supreme Court observed that in view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195, as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice', which also goes on to show the intention of the legislature while framing the section. However, where a court is otherwise in a position to form an opinion regarding the initiation of proceedings/ making complaint in terms of Section 340 CrPC, the court may dispense with the preliminary inquiry. The Supreme Court in the State of Punjab v. Jasbir Singh held: "That the decision of the three Judge Bench in Sharad Pawar did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish regarding the necessity of a preliminary inquiry under Section 340 of the CrPC, as also the observations made by a Constitution Bench of this Court in Iqbal Singh Marwah we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions: Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be Accused before a complaint is made under Section 195 of the Code by a Court?