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December 7, 2003 

Preliminary inquiry is not mandatory before filing a complaint 

High Court Division (Criminal Jurisdiction)
Before Mr. Justice Gour Gopal Saha and Mr. Justice Sheikh Rezowan Ali
Criminal Revision No. 1757 of 2001
The Noagaon Rice Mills Ltd.
Vs
Publai Bank Ltd.
Date of Judgement: November 18, 2002
Result: Rule discharged

Background
Gour Gopal Sahah, J: This Rule is directed against the order dated 10.01.2001 passed in Misc. Case No. 1 of 1999 sending a complaint against the petitioner to the Criminal Court concerned.

Short facts relevant for the purpose of the case are that Pubali Bank as plaintiff instituted Artha Rin Adalat Suit No. 132 of 1994 before the Artha Rin Adalat, Noagoan for realisation of its outstanding dues from the defaulting loanee, the petitioner. Ultimately, the suit was decreed on contest on 01.12.1998. In the said judgement the learned Artha Rin Adalat found that the present petitioner (who was the defendant in the Artha Rin Adalat suit) committed forgery and used forged documents in the suit. Subsequently the bank filed an application before the Artha Rin Adalat praying for lodging a complaint against the defendant petitioner before the Magistrate concerned for necessary action.

The petitioner before us filed written objection against the aforesaid application of the decree-holder bank for initiating action under sections 195/476 of the Code of Criminal Procedure. The learned Artha Rin Adalat, on hearing the contending parties and on careful perusal of the materials before him, passed the impugned order dated 10.1.2001 lodging a complaint to the Magistrate concerned for proceeding against the defendant petitioner in accordance with law.

Being aggrieved by the aforesaid impugned order dated 10.1.2001, the petitioner moved this Court and obtained the present Rule.

Mr. Md. Khaled Ahmed, the learned Advocate appearing for the petition, submits that under section 476 of the Code of Criminal Procedure the learned Magistrate is required to make a preliminary enquiry before lodging any complaint against the delinquent who is alleged to have used a forged document in our relation to a proceeding before the Civil Court. The learned Advocate for the petitioner submits that in the instant case, the Artha Rin Adalat clearly erred in law in passing the impugned order without holding the mandatory preliminary enquiry and the same the occasioned failure of justice and consequently, the impugned order is liable to be set aside in the interest of justice.

The learned Advocate appearing for the petitioner has placed before us the application under section 476 of the Code of Criminal Procedure filed by the bank before the Artha Rin Adalat against the defendant petitioner, the written objection filed by the present petitioner against it as well as the impugned order. It is found that the learned Artha Rin Adalat, on hearing the contending parties at length and on consideration of the materials placed before him, passed the impugned order.

Deliberation
Section 476 of the Code of Criminal Procedure provides as follows: When any Civil Revenue of Criminal Court is, whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest 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 Court may, after such preliminary inquiry, if any, as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court 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 offence is non-bail able may, if it thinks necessary so to do, send the accused in custody of such magistrate, and may bind over any person to appear and give evidence before such Magistrate.

Now the only question that call for our consideration is whether a preliminary enquiry before lodging any complaint under section 467 of the Code of Criminal Procedure is mandatory. From a reading of the section itself it appears to us that holding of a preliminary enquiry is not mandatory. The Court may in its discretion hold a preliminary enquiry before lodging any complaint to the Magistrate only when it thinks it necessary but such an enquiry is never obligatory. The Court has enough power to lodge such a complaint without holding any enquiry at all when from the proved facts the Court is prima facie satisfied that an offence has been committed before him in a proceeding or in relation thereto even without hearing the party complained against.

In the present case it is found that sufficient opportunity was given to the defendant petitioner to defend his cause. The written objection filed by the petitioner against the application for taking action under section 476 of the Code of Criminal Procedure was duly considered and the petitioner's engaged Advocate was given a through hearing. In the facts and circumstances of the case, it is thus evident that a preliminary enquiry, which is not at all mandatory, was indeed duly held and only thereafter the learned Artha Rin Adalat resorted to the provision of section 476 of the Code of Criminal Procedure by filing a complaint against the opposite party before the learned Magistrate.

Decision
We, therefore, do not find any illegality or legal infirmity in the impugned order occasioning failure of justice so as to justify interference by this Court exercising power under section 115 (1) of the Code of Civil Procedure. We are satisfied that the learned Artha Rin Adalat duly applied his judicial mind into the facts and circumstances and the law bearing on the subject and committed no error of law in taking action against the petitioner under section 476 of the Code of Criminal Procedure.

The impugned order is found to be perfectly justified and the same is well-reasoned and well-supported by the materials' on record. We, therefore, find no merit in the revision case, which fails necessarily.

In the result, the rule is discharged without any order as to cost and the impugned order dated 10-1-2001 passed by the learned Artha Rin Adalat, Naogaon in Mis, Case No 1 of 1999 is affirmed. The order of stay earlier granted by this Court stands vacated.

Mr Md. Khaled Ahmed with Mr. Md. Faruk Hossain, Advocate-for the Petitioner. No one for the opposite party.