IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46188 of 2007 SITANATH SHARAN Son of Late Dr. Bishun Prasad, Resident of Mohalla- Chowk Bazar, Post Office- Munger, P.S. Kotwali, District- Munger. Versus 1. THE STATE OF BIHAR. 2. Raghunath Saran Son of Late Dr. Bishun Prasad Resident of Mohalla- Chowk Bazar, Police Station- Kotwali, District- Munger. ------------------------ For the Petitioner:- Mr. Baxi S. R. P. Sinha , Sr. Advocate Mr. Rahul Nath, Advocate. For the Opposite Party No. 2 :- Sri Pratap Singh, Advocate For the State:- Dr. Mayanand Jha, APP. -------------------------- 7. 14.02.2011 Petitioner has challenged the order dated 20.8.2005 passed in Misc. Case No. 4 of 2001. During eviction suit, decree holder landlord died which resulted in filing of a substitution petition on 11.3.91. In the said substitution petition filed both by the opposite party and the petitioner, it has been said that the petitioner relinquishes his right and title to the property in question. The execution case was thereafter filed which was allowed in favour of opposite party no. 2. On 20.7.1992. The petitioner appeared in the execution proceeding on 30.1.1999 and filed two review petitions which have been disposed of on 16.8.1999. One of the petitions was that the signature of the petitioner on the substitution petition dated 11.3.91 was forged. Thus 2 the Court should proceed under Section 340 of the Code of Criminal Procedure against the opposite party no. 2. The petition as already stated was rejected. The petitioner as well as the complainant has filed appeal under Section 341 which was numbered as 133 of 1999. Petitioner has also filed a revision application against the order dated 16.8.99 by which he was not permitted to be added as party in the execution case which was dismissed on 4.9.2000. In this background, the question that has arisen in this quashing application is whether the opposite party no. 2 should be permitted to lead evidence to show that he is not prima facie guilty for committing an offence related to the proceedings in the Court? The petitioner was heard at the appellate stage and the appellate Court remitted the matter to the Court below to hold further enquiry in the matter relating to Section 340 of the Code of Criminal Procedure and directed the parties to appear before the Court below on 1.12.2000. In Compliance of the order of the appellate Court, the parties have appeared in this case and in fact the petitioner has led evidence and the opposite party no. 2 has cross-examined the 3 witnesses on behalf of the petitioner. The appellate Court while passing the order was obviously not satisfied with the enquiry held by the Court while dismissing the application under Section 340 of the Code of Criminal Procedure and, therefore, directed that “further enquiry should be held in this case”. Learned counsel for the petitioner submits that although the petitioner has been allowed by the appellate Court to appear and put forth his defence and has also been permitted to cross-examine the witnesses, the Court cannot allow him to lead evidence at this stage of the proceeding. On this issue counsel refers to the judgment of Pritish Vs. State of Maharashtra and Ors. reported in 2002 (2) PLJR S.C. 100. This case relates to the land acquisition proceeding in which the land holder had produced sale deeds which showed the price of land to be more than its actual value, which led to fixation of high value of the lands as a result of which excessive compensation was paid to the landholder during the proceedings, which resulted in the authority fixing in favour. The matter was brought to the notice of the Reference Court which resulted in the proceeding under Section 340 Cr. P.C. While discussing the term enquiry as defined in 4 Section 2 of the Code and relying on the provision of Section 340 of the Code of Criminal Procedure, the Court held that the it was not obligatory to hear the “accused in the matter” although there is no bar for the same. In the present case, the accused has already been made a party to the proceeding whereas the complainant is not a party in the main case i.e., the execution case. The complainant has already utilized the opportunity of filing an appeal under Section 341 of the Code before the Sessions Judge. While hearing the matter the Sessions Judge has rightly allowed the parties to appear in this case. The Supreme Court has held that the enquiry under Section 340 is only for the purposes of finding out whether a prima facie case is made out against the guilty person. The opposite party no. 2 had already been accorded the opportunity to be heard in the matter which could mean that he can put forth his submissions regarding the merits of the allegations made against him. It is not expected that opposite party no. 2, i.e. the accused should also be given an opportunity to lead oral evidence in the case, but he would have the right to cross examine the witnesses as well as produce documentary evidence to show 5 that the allegations are false. I may clarify here that since the allegation is related to a „forged signature‟ it may be that the petitioner has examined an expert to show that the signature is forged. If such is the case the accused should get an opportunity to rebut such evidence, as it goes to the very root of the matter. The purpose of enquiry under Section 340 is not to come to a finding regarding the guilt of a person, but only to come to a finding, whether the allegations are prima facie true or not. In the result the order impugned dated 20.8.2005 passed by the Munsif 1st Munger in Misc. Case no. 4 of 2001 is quashed to the extent mentioned aforesaid. I make it clear that the opposite party no. 2 is only being refrained from leading evidence in the proceeding in the manner mentioned above. However, the Court below is obliged to hear both the petitioner and opposite party no. 2, before concluding whether a prima facie case is made out under Section 340 or not. This application is allowed and the impugned order is hereby quashed. Anand Kr. ( Sheema Ali Khan, J.)