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Advocate Shivchand Mishra (Lawyer)     11 August 2023

Appeal or recall of erroneous order passed by magistrate in proceedings u/s 340 crpc?

Hello Friends,

My query is,

An application was filed u/s 340 crpc in December 2022. The magistrate kept giving long dates and the argument finally on 1st July, 2023. It is part heard and further listed today i.e, 11th August 2023 for my argument. 

The magistrate all of a sudden today, ordered the original complaint to file his say on CRPC 340 application. I referred the Jasbir Singh v. State of Punjab judgement wherein, Hon'ble Supreme Court has clearly said that "to be accused" should not be heard unless summoned. 

The magistrate was reluctant to read the judgement and passed the order calling upon Original complainant (Accused in 340 application).

Now, please direct me if I should go which of the options below,

1) to file recall application for recall of order 


2) to file application before his superior i.e., CJM (for transfer of matter to his court.


3) to file an appeal u/s 341 crpc before Seasions Court or high Court.

Please suggest...


 10 Replies

Dr. J C Vashista (Advocate and Legal Consultant)     12 August 2023

You are to file an appeal u/s 341 CrPC before Seasions Court or high Court. as the case may be

1 Like

T. Kalaiselvan, Advocate (Advocate)     12 August 2023

There is no legal infirmity in the orders passed by the judicial magistrate who would like to give an opportunity to the accused/respondent to hear him on the case agaisnt him.

Hence you may go by the court order.

The judgment you referred may not be covering the circumstances prevailing in your instant case.


1 Like

Advocate Shivchand Mishra (Lawyer)     12 August 2023


With due respect,

In the supreme court case I've referred to, was referred to 3 judge bench of supreme court to decide on law point that "whether "to be accused" can be granted opportunity of hearing in case of application u/s 340 Crpc r/w 195 Crpc?"

Supreme court clearly said "No opportunity of hearing can be granted to, to be accused person"

In present case since ld. Magistrate has called say of to be accused (amounting to participation of to be accused in 340 proceedings), in my opinion it is in defiance of supreme court judgement.

Please correct me if I am wrong. If correct, please suggest next course of action available to me whether recall of order or complaint against magistrate to CJM or appeal against said order.

Advocate Bhartesh goyal (advocate)     12 August 2023

Since in criminal proceedings court can't  recall it's own order so you have to file appeal u/sec 341 of Cr.P.C.

N.K.Assumi (Advocate)     12 August 2023

Two questions in Jaasbir Singh case were: 1.whether section 340 mndates opportunity of hearing to the potential accused? 2.what is the scope and ambit of such preliminary hearing? The Supreme Court in first question was answered in the negative but the second question was in reference to Iqbal Singh case which holds that before filing of complaint the court may hold a preliminary enquiry and record a finding in the interest of justice. I am of the opinion that what the Supreme Court means is that, preliminary inquiry is not essential in Law, but proceedings under this section without such inquiry are not illegal, and it all depends on the facts of the case, because a mere wrong statements, innocent, inadvertent  or immaterial will not justify a prosecution. Accordingly I am of theview that the Magistrate adopted the right procedures, and there is nothing peverse in the court's order.



Advocate Shivchand Mishra (Lawyer)     12 August 2023


The preliminary inquiry is meant not to establish guilt or innocence of such a person.when such proceedings are meant only to form an opinion regarding making a formal complaint to the concerned Magistrate, it is quite understandable and logical that a person against whom such preliminary inquiry is conducted/ "would-be accused" should not have a right to seek an audience before Court at such a stage. Clearly, such preliminary inquiry is meant not to establish guilt or innocence of such a person.

Audi Alteram Partem is an exception to proceedings u/s 340 Crpc. it is only once such a complaint is made and Magistrate calls such person as an accused to appear before him, legal right to be heard accrues on him.

T. Kalaiselvan, Advocate (Advocate)     13 August 2023

You are confirming your views justifying your statement.

However there is a good substance and question of law properly explained by expert advocate Mr. Asumi and the opinion as well as the interpretation and the explanation given thereon is quite convincing, therefore in my opinion too, there is no legal infirmity for the judicial magistrate giving a chance to the accused in the interest of justice.

An accused cannot be found guilty on the first instance itself.

N.K.Assumi (Advocate)     13 August 2023

There is no statutory duty cast on the court to issue notice to the potential accused, but it does not mean tht the court is prohibited to issue notice to the respondent. Proceedings under Section 340 CrPc commence with a preliminary inquiry as the court thinks fit, and the respondent on his appereance is not entitled to cross examine the applicant's witness or file documentary evidence in his defense. 

Anwar Ali   30 September 2023

U/s 340 rw 195 it plimery enquiry is not to look into weather person is guilty or not but
where it is find weather in the interest of public justice offence committed in large
the same is given in case law pritish vs state of maharashtra iqbal sing marva vs Meenakshi mara this is 5 bench judgement pritish vs state of maharashtra 3 bench judgment

basics element for considering is act of perjury is in public justice and obstacles to judiciary at large

Advocate Shivchand Mishra (Lawyer)     27 October 2023

Since I was not able to post it as new topic owing to some technical glitches, I am posting it here,

Hello Experts,

In February 2022, i filed a complaint (RCC No. 000 OF 2222) with magistrate u/s 156(3) Crpc, for registration of FIR against a builder and Bank u/s 201, 420, 406, 409 and 468 of IPC. Case was disposed in December 2022, with direction to police to investigate the matter. The FIR got registered and investigation started.

Now since it is almost November 23, the police report is already delayed and on top of it, I wrote to CP regarding this delay, which was unfruitful. Now I want to file an application before magistrate u/s 156(3) Crpc for court monitored investigation and for calling status report from police.

My query is regarding, what would be the case title of application u/s 156(3) Crpc for court monitored investigation and for calling status report from police, when the main complaint case RCC No. 000/2222 is already disposed?

Whether it would be,

"Criminal Misc. Application _______/ 2023 IN RCC 000 OF 2222 (disposed)" 

Or, it would be,

"Criminal Misc. Application _______/ 2023"

please advise

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