In the process of formation of opinion by the court that it is expedient in the interests of justice that an inquiry should be made into, the requirement should only be to have a prima facie satisfaction of the offence which appears to have been committed. It is open to the court to hold a preliminary inquiry though it is not mandatory. In case, the court is otherwise in a position to form such an opinion, that it appears to the court that an offence as referred to under Section 340 CrPC has been committed, the court may dispense with the preliminary inquiry.

Even after forming an opinion as to the offence which appears to have been committed also, it is not mandatory that a complaint should be filed as a matter of course. (See Pritish v. State of Maharashtra [Pritish v. State of Maharashtra, (2002) 1 SCC 253: 2002 SCC (Cri) 140].) In the same decision, the Court also took note of the following observations made by a Constitution Bench of this
Court in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370 in relation to the scope of Section 340 of the CrPC:

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(1)(b), as the section is conditioned by the words “court is of opinion that it is expedient in the interests of justice”. This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint.” (emphasis supplied) Notably, however, the decision in Amarsang Nathaji did not take note of the contrary observations made in Sharad Pawar (supra).

. In any event, given that the decision of the three- Judge Bench in Sharad Pawar (supra) did not assign any reason as to why it was departing from the opinion expressed by a Coordinate Bench in Pritish (supra) 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 (supra), we find it necessary that the present matter be placed before a larger Bench for its consideration, particularly to answer the following questions:

(i) 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?

(ii) What is the scope and ambit of such preliminary inquiry?

  1. Accordingly, we direct the Registry to place the papers before the Hon’ble Chief Justice for appropriate orders.

State of Punjab vs Jasbir Singh


(Supreme Court of India )


Criminal Misc. No.M-43750 of 2019 Date of Decision: 14.02.2020

Karan Chawla …Petitioner (s)


State of Punjab …Respondent(s)


Present:- Mr. S.P.S. Khaira, Advocate for the petitioner.

Ms. Ruchika Sabharwal, AAG, Punjab. ****

* HARI PAL VERMA, J. (Oral) Prayer in the present petition filed under Section 438 of the Code of Criminal Procedure, 1973 is for grant of anticipatory bail to the petitioner in case FIR No.0133 dated 18.08.2019 under Sections 376, 354, 511 IPC registered at Police Station Fatehgarh Sahib, District Fatehgarh Sahib.

The aforesaid FIR was registered on the statement of the prosecutrix with the allegations that on 17.08.2019, the prosecutrix suffered an accident and therefore, she was brought to Civil Hospital, Fatehgarh Sahib for treatment. In the Operation Room, when the doctor went away after treating her, a fat boy (the petitioner) Karan Chawla came inside  room, who firstly removed her sister-in-law from the Operation Room and then started molesting the prosecutrix. He bit her lips and removed her legging and started to touch her with finger.The prosecutrix started screaming and told the accused that she will tell her husband. The petitioner threatened her that in case she will tell this incident to anybody, he will kill her. At the same time, her husband and sister-in-law came and the accused suddenly disappeared. Later on, the prosecutrix came to know the name of the accused Karan Chawla, who was doing job in Civil Hospital.

On 16.10.2019, when this case was listed before this Court, following order was passed:-

 “Learned counsel for the petitioner refers to the statement of the attending doctor who has commented upon the behaviour of the complainant and her husband, who was allegedly under the influence of liquor, have misbehaved with the para-medical staff.

Dr. Jiwanjot Kaur was the Medical Officer and was performing emergency duty on 17.08.2019 has made a statement that the petitioner who was a Ward Attendant was present in the hospital and was helping her. She further states that husband of the complainant has assaulted the Staff Nurse and the Ward Attendant with the active sport of his relatives.

Notice of motion for 14.02.2020.

Till the next date of hearing, arrest of the petitioner shall remain stayed.”

Learned State counsel, on instructions from SI Amanpreet Kaur Brar, submits that the matter has been looked into by the police and a Special Investigation Team was constituted and on the basis of evidence so  adduced, including recording of the statements of attending doctor, lady attendant, staff nurse, police officials on duty and the security guard, the SIT has come to a conclusion that no such incident of alleged molestation has taken place and accordingly, the police has prepared cancellation report in the matter.

In view of the fact that SIT constituted in the case has not found anything in the case and thereby, cancellation report has also been prepared, the present petition is rendered infructuous

. Accordingly, the present petition is dismissed as infructuous.

However, this Court cannot ignore the fact that number of times, such like false cases are registered. Had there been no fair investigation, the petitioner would have to face trial. The police authorities are at liberty to proceed against the prosecutrix for lodging a false case, in accordance with law.


Whether speaking / reasoned? Yes / No

Whether reportable? Yes / No

“The High Court ought to have kept in view that `Bail is rule and jail is exception’. There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. In peculiar circumstances of this case where closure report was filed twice, the High Court ought not to have declined bail only because the trial court was yet to accept the said report. Further, the examination of witnesses would depend upon the fate of 2nd closure report. Considering the nature of allegations attributed to the appellant and the period he has already spent in custody, we are satisfied that he deserves to be released on bail forthwith.”

Jeetendra Vs. State of Madhya Pradesh & Anr.

[Criminal Appeal No.408 of 2020

arising out of Special Leave Petition (Crl.)No. 10145 of 2019]

  1. Leave granted.
  2. Rejection of third bail application by the High Court of Madhya Pradesh, Indore Bench has prompted the appellant to approach this Court. He has been in custody since 5th January, 2019 in connection with Crime No. 210/2012 registered at Police Station Chhatripura, Indore for offences punishable under Sections 420, 177, 181, 193, 200 and 120B of Indian Penal Code (for short, ‘IPC’).
  3. Briefly stated, the facts are as follows:
  4. Wife of the appellant lodged a case under Sections 498A, 323 and 506 of IPC against him, registered as Crime No. 96/2008, wherein the appellant was arrested. Later, he was released on bail upon furnishing bail bonds of Rs.7,000/along with documents of their residential property as a personal bond by his mother. Subsequently, the matrimonial dispute was amicably settled and as a result, the appellant was acquitted on 23rd April, 2010.
  5. On 20th May, 2012 , Dileep Borade (appellant’s cousin) and his son Vishal Borade lodged a complaint with Police alleging that documents of the residential property furnished as personal bond for appellant’s release on bail in the matrimonial case were forged. This led to registration of Crime No. 210/2012 for which the appellant is incarcerated for more than a year.
  6. From perusal of the record, we note that a closure report was filed by the Police on 24th May, 2013 in Crime No. 210/2012 but the learned Judicial Magistrate after five years ordered further investigation on 20th June, 2018. Consequently, appellant was arrested on 5th January, 2019 and denied bail by the Additional Sessions Judge. The High Court also vide order dated 22nd January, 2019 declined to release him on bail. Appellant filed a second bail application before the High Court, which was dismissed as withdrawn on 10th April, 2019 with liberty to apply again after examination of certain material witnesses. Meanwhile, the police reinvestigated the case and submitted a second report on 2nd September, 2019 stating that no offence has been committed by the appellant and he deserves to be discharged.

After filing of this closure report, appellant approached the High Court for a third time. But he was denied bail yet again vide the impugned order on grounds that the second closure report has not been accepted by the Trial Court and that appellant has failed to point out whether material witnesses have been examined or not. The appellant has thus been left with no other option but to approach this Court. While issuing notice, this Court on 14th November, 2019 directed that the appellant be released on interim bail.

  1. Having heard learned counsel for the parties as well as the counsel representing the complainant, we are satisfied that the appellant deserves to be enlarged on bail. The High Court ought to have kept in view that `Bail is rule and jail is exception’. There is no gainsaying that bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. In peculiar circumstances of this case where closure report was filed twice, the High Court ought not to have declined bail only because the trial court was yet to accept the said report. Further, the examination of witnesses would depend upon the fate of 2nd closure report. Considering the nature of allegations attributed to the appellant and the period he has already spent in custody, we are satisfied that he deserves to be released on bail forthwith.
  2. The appeal is thus allowed and the impugned order of the High Court dated 16th September, 2019 is set aside. The interim bail order dated 14th November, 2019 is made absolute. The appellant shall stand released on regular bail subject to the bail bonds already furnished by him to the satisfaction of the trial court.

……………………….CJI (S.A. BOBDE)

………………………..J. (B.R. GAVAI)

………………………..J. (SURYA KANT)

. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identify of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.

  1. An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.” In light of the observations quoted above and the admission of PW-8 that he was not an expert in post-mortem examination, we are constrained to find that no reliance can be placed on his deposition.

Furthermore, since this is a case based on circumstantial evidence, the burden is on the prosecution to prove all the circumstances so as to complete the chain, and not to leave any scope for the accused to escape from the clutches of law. The law on this point is now well-settled by the decisions of this Court including in the case of Sharad Birdichand Sarda v. State of Maharashtra, (1984)4 SCC 116, wherein it was held that the following conditions need to fulfilled for an accused to be convicted based on circumstantial evidence:

“The following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.” In the instant case, the prosecution has not been able to establish a complete chain of circumstantial evidence. The prosecution has not proved the guilt of the accused beyond reasonable doubt, and the same must enure to the benefit of the accused.

Cases refereed :

ADUKKALPATTU Mani Vs State of Andhra Pradesh




Advocate, Supreme Court of India

Year of Professional Experience.

More than 18 Years.

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

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The use of the term “assist” in the proviso to Section 24(8) is crucial, and implies that the victim’s counsel is only intended to have a secondary role qua the Public Prosecutor. This is supported by the fact that the original Amendment Bill to the CrPC had used the words “co­ordinate with the prosecution”. However, a change was later proposed and in the finally adopted

impact the safeguards put in place for the accused in criminal trials. These lapses may be aggravated by a lack of advocacy experience on the part of the victim’s counsel. In contrast, such dangers would not arise in the case of a Public Prosecutor, who is required to have considerable experience in the practice of law, and act as an independent officer of the Court. Thus, it is important to appreciate why the role of a victim’s counsel is made subject to the instructions of the Public Prosecutor, who occupies a prime position by virtue of the increased responsibilities shouldered by him with respect to the conduct of a criminal trial. 12.3 At the same time, the realities of criminal prosecutions, as they are conducted today, cannot be ignored. There is no denying that Public Prosecutors are often overworked. In certain places, there may be a single Public Prosecutor conducting trials in over 2­3 courts. Thus, the possibility of them missing out on certain aspects of the case cannot be ignored or discounted. A victim­centric approach that allows for greater participation of the victim in the conduct of the trial can go a long way in plugging such gaps. To this extent, we agree with the submission made by the learned Senior Counsel for the Appellant that the introduction of the proviso to Section 24(8) acts as a safety valve, version, the words “co­ordinate with” were substituted by “assist”. This change is reflective of an intention to only assign a supportive role to the victim’s counsel, which would also be in consonance with the limited role envisaged for pleaders instructed by private persons under Section 301(2). In our considered opinion, a mandate that allows the victim’s counsel to make oral arguments and cross­examine witnesses goes beyond a mere assistive role, and constitutes a parallel prosecution proceeding by itself. Given the primacy accorded to the Public Prosecutor in conducting a trial, as evident from Section 225 and Section 301(2), permitting such a free hand would go against the scheme envisaged under the CrPC.

12.2 In some instances, such a wide array of functions may also have adverse consequences on the fairness of a trial. For instance, there may be a case where the Public Prosecutor may make a strategic call to examine some witnesses and leave out others. If the victim’s counsel insists upon examining any of the left out witnesses, it is possible that the evidence so brought forth may weaken the prosecution case. If given a free hand, in some instances, the trial may even end up becoming a vindictive battle between the victim’s counsel and the accused, which may further

inasmuch as the victim’s counsel can make up for any oversights or deficiencies in the prosecution case. Further, to ensure that the right of appeal accorded to a victim under the proviso to Section 372 of the Cr.P.C. is not rendered meaningless due to the errors of the Public Prosecutor at the trial stage itself, we find that some significant role should be given to the victim’s counsel while assisting the prosecution. However, while doing so, the balance inherent in the scheme of the CrPC should not be tampered with, and the prime role accorded to the Public Prosecutor should not be diluted.

12.4 In this regard, given that the modalities of each case are different, we find that the extent of assistance and the manner of giving it would depend on the facts and circumstances of each case. Though we cannot detail and discuss all possible scenarios that may arise during a criminal prosecution, we find that a victim’s counsel should ordinarily not be given the right to make oral arguments or examine and cross­examine witnesses. As stated in Section 301(2), the private party’s pleader is subject to the directions of the Public Prosecutor. In our considered opinion, the same principle should apply to the victim’s counsel under the proviso to Section 24(8), as it adequately ensures that
the interests of the victim are represented. If the victim’s counsel feels that a certain aspect has gone unaddressed in the examination of the witnesses or the arguments advanced by the Public Prosecutor, he may route any questions or points through the Public Prosecutor himself. This would not only preserve the paramount position of the Public Prosecutor under the scheme of the CrPC, but also ensure that there is no inconsistency between the case advanced by the Public Prosecutor and the victim’s counsel.

12.5 However, even if there is a situation where the Public Prosecutor fails to highlight some issue of importance despite it having been suggested by the victim’s counsel, the victim’s counsel may still not be given the unbridled mantle of making oral arguments or examining witnesses. This is because in such cases, he still has a recourse by channelling his questions or arguments through the Judge first. For instance, if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the Court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 of the CrPC or Section
165 of the Indian Evidence Act, 1872. In this regard, we agree with the observations made by the Tripura High Court in Smt. Uma Saha v. State of Tripura (supra) that the victim’s counsel has a limited right of assisting the prosecution, which may extend to suggesting questions to the Court or the prosecution, but not putting them by himself.

Reffed Judgments : Citation:

[Arising out of SLP (Crl.) No. 7848 of 2019]


A husband/father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order. In the present case no reason has been mentioned justifying the grant of the stay order.





(Arising out of SLP (Crl.) No.7203/2019)

Pratima Devi & Anr ……………………….APPLANT


Anand Prakash      ……………….Respondent


  1. Leave granted.
  2. Though served, no one appears for the respondent. The appellants, the wife and minor son of the respondent had filed a petition for grant of maintenance under Section 125of the Criminal Procedure Code before the Principal Judge, Family Court, Karkardooma Courts, Delhi. The Principal Judge by order dated 03.10.2017 passed an order granting maintenance @ Rs.20,000/- to the appellants, (Rs. 10,000/- to the wife and Rs. 10,000/- to the minor son). This order was passed ex-parte. The respondent filed an application for setting aside the Signature Not Verified ex-parte order which application was rejected on Digitally signed by CHARANJEET KAUR Date: 2019.09.17 17:03:02 IST Reason: 05.09.2018. Aggrieved, the respondent filed criminal revision No. 986 of 2018 before the High Court. Along with revision petition an application for stay was filed. The orders passed in the said petitions read as follows :

“Trial Court record be requisitioned. List on 25th November, 2019. in the meantime, execution proceedings be kept in abeyance.”

  1. We are constrained to observe that this order shows total non-application of mind on the part of the High court. This was a case where maintenance had been granted to a wife and to a minor son. The High Court without recording any reason whatsoever, has stayed the grant of maintenance both to the wife and to the minor son. This should not be done. A husband/father is duty bound to maintain his wife and child. Unless there are very special reasons, the higher Court should not normally stay such an order. In the present case no reason has been mentioned justifying the grant of the stay order.
  2. We, therefore, set aside the impugned order and direct the payment of maintenance as awarded by the Family Court. We, however, make it clear that the High Court after hearing the parties may pass an appropriate reasoned order. We make it clear that this order will not come in the way of the High Court confirming, modifying or vacating the order of the Family Court.
  3. The appeal is, accordingly disposed of.


[ DEEPAK GUPTA ] ……………….J.