N.M. Kasliwal, J.
1. This appeal under Section 341, Cr. P.C. is directed against an order of the learned Sessions Judge, Si-kar, dated 7th July, 1977, in a case under Section 193, IPC and Section 340, Cr. P.C.
2. Brief facts leading to this appeal are that the appellant Gees Raj submitted an application under Section 282 of the Succession Act, 1925, r/w Section 193, I.P.C, and Section 340, Cr. P.C. against non-applicant Kishan Dev for prosecuting the non-applicant under Section 193, I.P.C. Broadly speaking the case of the appellant as set up in the application was that the non-applicant Kishan Dev had submitted an application before the Sub-Divisional Officer, Sikar, that he was the adopted son and legal heir of Laxmi Narain deceased and he was entitled to get the jagir compensation of the jagir sanctioned in favour of Laxmi Narain deceased, According to the appellant that application was ultimately dismissed by the Board of Revenue on 26th April, 1967. It was further alleged that the non-applicant submitted an application for the grant Of succession certificate in the court of District Judge and obtained an order of grant of succession certificate in his favour of the debts and assets left by the deceased Laxmi Narain. It was further mentioned that in the application for the grant of succession certificate the non-applicant concealed the fact that in the Revenue Courts his application for the grant of jagir compensation had been dismissed right up to the Board of Revenue and in those proceedings it was found that he was not the legal heir of Laxmi Narain.
3. In reply to the aforesaid application the non-applicant took the stand that the application has been filed by Geeg Raj with mala fide intention. He was a tenant of the non-applicant and in a suit for ejectment filed by him Geei Raj had himself admitted that the non-applicant was the adopted son of Laxmi Narain. Ejectment case was decided in favour of the non-applicant right up to the High Court and this petition has been filed mala fidely to put undue pressure on the non-applicant so that he might not execute the decree for eviction. It was also alleged that there was no other legal heir of Laxmi Narain deceased and the non-applicant was the nearest heir and was adopted by Laxmi Narain. It was also alleged that nobody else contested the proceedings of grant of succession certificate in favour of the, non-applicant and the appellant Gees Raj should be prosecuted for filing such false complaint. The learned District Judge came to the conclusion that the application filed by Geeg Raj was wholly baseless and had been filed merely in order to harass and defame the non-applicant Kishan Dev. Under these circumstances the learned District Judge by his impugned order dismissed the application filed by the appellant and passed an order that the appellant should be prosecuted for an offence under Section 211 I.P.C. and a complaint in this regard may be filed in the court of Chief Judicial Magistrate, Sikar, for trial. Aggrieved against this order this appeal has been filed by Geeg Raj, appellant.
4. It was frankly conceded by the learned Counsel for the appellant that he was not challenging the order of the learned District Judge so far as dismissing his application on merits against the non-applicant Kishan Dev was concerned. He, however, raised arguments against the order of the learned District Judge, ordering a prosecution to be launched against the appellant under Section 211, I.P.C.
5. It was first contended by the learned Counsel for the appellant that no order could have been passed against the appellant under Section 340, Cr. P.C. in a case where the appellant himself had filed an application under Section 340. Cr. P.C. an order could have been passed in relation to a proceeding in that court and an application filed under Section 340, Cr. P.C. itself cannot be considered as a proceeding within the meaning of Section 340, Cr. P.C. In other words, it was contended that the offence referred to in Clause (b) of Sub-section (1) of Section 195 should have been committed in relation to a pro-ceeding other than a proceeding under Section 340 Cr. P.C. itself. I see no force in this contention. There is no restriction contained in the words used 'in relation to a proceeding in that court' so as to relate it to a proceeding otherwise than a proceeding under Section 340, Cr. P.C. The plain and simple language used in this section means that the offence can be in relation to a proceeding in that courl and which can also be a proceeding under Section 340. Cr. P.C. itself. Thus, if a person files an application under Section 340. Cr. P.C. and during the continuance of the proceeding on such application if it appears to the court that an offence referred to in Clause (b) of Sub-section (1) of Section 195 appears to have been committed in relation to such proceeding, then certainly that court is entitled to pass an order that an inquiry should be made into such offence, if in the opinion of such court it is expedient in the interest of justice to do so. Thus, I find no force in the above contention raised by the learned Counsel for the appellant,
6. It was next contended that before passing an order under Section 340, Cr. P.C. against the appellant no opportunity was given to the appellant to explain the circumstances of the present case. No preliminary inquiry was held by the learned District Judge and he passed an order simultaneously with the order dismissing the application filed by the appellant under Section 340. Cr. P.C. It was submitted that the various facts and circumstances of the case taken into consideration against the appellant were not allowed to be explained by him and the learned District Judge drew inference, which could have been explained if proper opportunity was given to the appellant in this regard. On the other hand, it was contended by Mr. Rastogi, learned Counsel for the non-applicant Kishan Dev that the appellant himself had admitted in the written statement filed in the ejectment suit that the non-applicant Kishan Dev was adopted son of Laxmi Narain. Thereafter there was no ground or justification or basis for the appellant to have moved such an application under Section 340, Cr. P.C. on the ground that the non-applicant had obtained the succession certificate falsely alleging himself to be an adopted son of Laxmi Narain.
7. Under Section 340, Cr. P.C. it has been laid down that an order can be made by a court if it is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in Clause (b) Sub-section (1) of Section 195. which appears to have been committed in or in relation to the proceeding in that Court, after such preliminary inquiry, if any. as it thinks necessary. The language of the aforesaid section makes it clear that it is discretionary for such court to make a preliminary inquiry and it would depend upon the facts and circumstances of each case whether any preliminary inquiry is to be held or not before making an order. It is, however, necessary that the Court must be of the opinion that it was expedient in the interest of justice that an inquiry should be made into any offence mentioned in this section. If no such preliminary inquiry is held to be necessary the Court should record a finding to that effect as to why such preliminary inquiry was not necessary. In the present case there were many allegations of fact mentioned in the application under Section 340, Cr. P.C. filed by the appellant on 13th February 1975 which necessitated the filing of that application. According to the appellant the basis of making such applications were certain proceedings terminated against the non-applicant right up to the Board of Revenue. A perusal of the record of this case shows that neither of the parties have placed the judgments of the Revenue Courts on the record of this case and it is difficult to arrive at a just conclusion as to what would be their effect on the question of lodging a complaint against the appellant under Section 211. I.P.C. It is no doubt correct that the appellant had not substantiated his application filed under Section 340. Cr. P.C. against the non-applicant and the same has rightly been dismissed by the learned District Judge. However, before passing an order for lodging a complaint against the appellant under Section 211. I.P.C. for having falsely submitted the application under Section 340. Cr. P.C. it was incumbent upon the learned District Judge to have made a preliminary inquirv in the facts and circumstances of this case after having given a show cause notice to the appellant as to why a complaint may not be filed against him and after receiving his explanation and after hearing both the parties, the learned District Judge ought to have arrived at the conclusion whether it was expedient in the interest of justice to file a complaint against the appellant or not.
8. In the result, this appeal is partly allowed, the order of the learned District Judge so far as dismissing the application under Section 340, Cr. P.C. filed against the non-applicant Kishan Dev is concerned, is upheld and the order for lodging a complaint under Section 211, I.P.C. against the appellant, Geej. Raj is set aside. The case is remanded back to the learned District Judge, Sikar, for holding an inquiry as contemplated under Section 340, Cr. P.C. and thereafter pass an appropriate order according to law.