PRITPAL SINGH,J - (1.) THE respondent Rajinder Singh filed an application dated 10th January, 1986, under section 340 Code of Criminal Procedure (hereinafter referred to as the Code) (Annexure P-1), against the petitioner B.S. Sandhu and six others in the Court of Mrs. Raj Rahul Garg, Sub-ordinate Judge Ist Class, Chandigarh. On the presentation of application, the learned Subordinate Judge issued notice (Annexure P-2) to the petition and other respondents in the application, for a specified date, on the same day. The petitioner has challenged the validity of the order annexure P-2 under section 482 of the Code. This petition has been contested by Rajinder Singh.
(2.) SECTION 340(1) of the Code, under which the application was filed by the Rajinder Singh in the Court of the Subordinate Judge, reads as under :- "340. Procedure in cases mentioned in section 195. (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceedings in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it think necessary,- (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, of if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate." A bare reading of this sub-section would indicate that the first thing to be considered by the Court, when an application is made under it, is whether the circumstances are such as to warrant a finding that it is expedient in the interest of justice that the matter should be enquired into by the Magistrate. If so, a finding is recorded and a complaint is made. If before recording the finding it is desired to make a preliminary enquiry then such an enquiry is made in a manner to be decided by the Court. It is only when the Court is of the opinion that it is expedient in the interest of justice that the matter should be enquired into by a Magistrate, the Court may issue a show-cause notice to the persons against whom the filing of the complaint in the Court of a Magistrate is contemplated. Although it is not necessary for the Court to issue a show-cause notice to the person alleged to have committed the offence but it is desirable and expedient to give notice to a person sought to be proceeded against in order to give him an opportunity to offer an explanation. The procedure of mechanically issuing a show-cause notice to such persons merely on filing of the application under section 340 of the Code, is quite unwarranted. In the present case, the learned Subordinate Judge without recording an opinion as to whether the circumstances are such as to warrant a finding that it is expedient in the interest of justice that a complaint against the present petitioner and other should be filed before a Magistrate, issued show-cause notice to the petitioner. This notice is inconsistent with the provisions of section 340 of the Code.
(3.) FOR the reasons, this petition is allowed and the impugned order annexure P-2 is hereby quashed. The learned Subordinate Judge is directed to proceed on the application of Rajinder Singh under section 340 of the Code in accordance with law, in the light of the above observations. Petition allowed.;