Nisha Gupta, J. - (1.) The petition has been filed against the order dated 22.7.2008, passed by Additional Sessions Judge No. 2, Karauli, whereby proceeding under Section 193 I.P.C. has been initiated against the petitioner.
(2.) The main contention of learned counsel for the petitioner is that no notice or opportunity of hearing was given to the petitioner prior to passing the order for initiating the proceeding under Section 193 I.P.C. The impugned order is per se illegal, as no preliminary enquiry, as envisaged under Section 340 Cr.P.C., has been made. During trial the petitioner was not declared hostile, nor any cross-examination has been made in contradiction to the statements recorded under Section 161 Cr.P.C. Hence, there is no basis for initiating the proceeding under Section 193 I.P.C. The learned counsel further contended that earlier another accused Daya Ram, was tried and was acquitted vide judgment dated 16.6.2000, wherein certain remarks were passed against the petitioner, which were expunged by the High Court vide order dated 1.12.2000. Hence, this petition should be allowed. Reliance has been placed on Nimmakaynla Audi Narrayanamma v. State of Artdlzra Pradesh, AIR 1970 Andhra Pradesh 119 ; Iqbal Singh Marzvah v. Meenakshi Marzvah, AIR 2005 SC 2119 ; Raj Kishore Biszval v. State of Orissa, (2008) 3 Crimes (HC) 555 ; Sanjiv Arora v. State of Rajasthan, (2006) 10 RDD 5322 ; B.K. Gupta v. Damodar H. Bajaj, (2001) 4 JT 422 , wherein it has been observed that the Court must hold a preliminary enquiry and then should record the finding that it expedient in interest of justice to make an inquiry in relation to offence committed.
(3.) Learned Public Prosecutor has supported the impugned order.;