Prosecution For Contempt Of Lawful Authority Of Public Servants And For Offences Against Public Justice And Offences Relating To Documents Given In Evidence

"195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence –

(1) No Court shall take cognizance -

(a) (i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860 ), or

(ii) of any abetment of, attempt to commit, such offence, or

(iii) of any criminal conspiracy to commit such offence,

except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub- clause (i) or sub- clause (ii),

except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.

(2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:

Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.

(3) In clause (b) of sub- section (1), the term" Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.

(4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:

Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

1. PROSECUTION FOR CONTEMPT OF LAWFUL AUTHORITY OF "PUBLIC SERVANTS"

2. Clause (a) of Section 195 (1) Cr.P.C. pertains to offences for contempt of the lawful authority of "public servants".

B1.Offences covered by Section 195 (1) (a)Cr.P.C.

3. The offences covered by Section 195 (1) (a) for which a written complaint by the public servant is insisted, are

1. any offence punishable under Sections 172 to 188 IPC (which are offences pertaining to contempts of lawful authority of public servants in Chapter X of IPC)

1. any abetment of, attempt to commit any of the above offences

1. any criminal conspiracy to commit any of the above offences

B2. Who is the "public servant" covered by Section 195 (1) (a) Cr.P.C. ?

4. Section 195 (1) (a) enjoins that an offender who commits an offence covered by the Section can be prosecuted only by the public servant concerned or his administrative superior and that too only by means of a written complaint. As per Section 21 of IPC the expression "public servant" includes a Judge and a Magistrate. If any of the offences enumerated in Clause (a) of Section 195 (1) has been committed by a person before a public servant, the offender cannot be prosecuted by any private party or person. The offender can be prosecuted only –

• by the public servant concerned,

or

• by some other public servant to whom the public servant concerned is administratively subordinate.

(videSection 195 (1) (a) Cr.P.C. )

This provision is mandatory and non-compliance will vitiate the prosecution and all consequential orders. In the absence of a complaint by the public servant, the trial and conviction, if any, made will be void ab initio being without jurisdiction. (vide para 33 of C. Muniappan v. State of T.N. (2010) 9 SCC 567 = AIR 2010 SC 3718). If the public servant either does not, or refuses to make a complaint, some other public servant to whom he is administratively subordinate can prefer a complaint. The Magistrate is debarred from taking cognizance on a complaint by a private person. (vide State of U.P. v. Mata Bhikh (1994) 4 SCC 95). An inquiry under Section 340 Cr.P.C. is not necessary before the public servant concerned or his administrative superior can prosecute an offender under this provision. This is because Section 340 Cr.P.C. lays down the procedure for prosecuting a person who commits an offence enumerated under Section 195 (1) (b) only and not under Section 195 (1) (a) Cr.P.C. A prosecution by the public servant as aforesaid should be by means of a complaint in writing before the appropriate Judicial Magistrate. Such complaint should answer the description of a "complaint"as defined under Section 2 (d) Cr.P.C. Depending on the punishment prescribed for the alleged offence, the Magistrate will have to decide whether the trial should be a "summons trial" or "warrant trial". With regard to Sections 174 A and 181 IPC, the procedure will have to be necessarily warrant procedure since those offences are punishable with imprisonment for a term exceeding 2 years.

B3.WHO IS "SOME OTHER PUBLIC SERVANT" TO WHOM THE PUBLIC SERVANT CONCERNED IS ADMINISTRATIVELY SUBORDINATE ?

5. If the public servant concerned before whom or in contempt of whose lawful authority the offence was committed, either fails or refuses to make a complaint, his administrative superior can file a complaint. For example, take a case wherea Sub Divisional Magistrate ("SDM" for short) before whom an offence punishable under Section 188 IPC has been committed for disobeying his order passed under Section 144 Cr.P.C. If the SDM either does not, or refuses to lodge a complaint, the District Magistrate (the District Collector) to whom the SDM is administratively subordinate is competent to file a complaint before the appropriate Judicial Magistrate. In such a case the Sessions Judge who may be superior to the Sub Devisional Magistrate in the Judicial hierarchy cannot file the complaint because the Sub Divisional Magistrate is not a public servant administratively subordinate to the Sessions Judge. (vide The State v. Sudhir Ruhidas AIR 1959 Cal. 450 = 1959 Cri.L.J. 833). Similarly, when a Judicial Magistrate of the first class files a complaint under Section 188 IPC (which is an offence covered by Section 195 (1) (a) Cr.P.C.), he does so as a public servant and not as a Judicial Magistrate. Thus, if the Judicial Magistrate of the first class refuses to file a complaint with regard to any of the offences enumerated under Section 195 (1) (a) Cr.P.C., the Chief Judicial Magistrate concerned alone can file the complaint by recourse to Section 15 (1) Cr.P.C. In such a case Sessions Judge who is the superior Court within the meaning of Section 195 (4) Cr.P.C. cannot file a complaint. Here, the question of competency has to be decided with reference to administrative subordination under Section 15 (1) Cr.P.C. and not with reference to judicial subordination under Section 195 (4) Cr.P.C. If sub-section (4) of Section 195 Cr.P.C. was the provision which were to apply, then it would be the Sessions Judge to whom appeals against sentences passed by the Magistrate lie, who would be the superior. But, the said sub-section is not the provision which will be applicable to a prosecution for an offence covered by Section 195 (1) (a) Cr.P.C. (vide Jaswant v. State AIR 1951 Allahabad 828). Similarly, where the public servant concerned is a Police constable, the Judicial Magistrate having jurisdiction over the Police station to which the said constable is attached, is not the administrative superior, but a superior Police officer of such Police constable will be the appropriate person who can file a complaint for the purpose of Clause (a) of Section 195 (1)Cr.P.C.

B4. Power of the"administrative superior" after a complaint has been made by the public servant concerned

6. Unlike in the case of a complaint by a Court under Section 195 (1) (b) Cr.P.C., the administrative superior of the public servant has been invested with larger powers. If the public servant concerned has made a complaint under Section 195 (1) (a), his administrative superior, can, at any time prior to the conclusion of the trial before the Judicial Magistrate concerned, withdraw the complaint and send a copy of the order withdrawing the complaint to the said Magistrate and upon receipt of the said order no further proceedings shall be taken by the Magistrate on such complaint (vide Section 195 (2) Cr.P.C. and the proviso thereto). But the Cr.P.C. is silent as to under which all circumstances can such administrative superior withdraw the complaint and why should the trial already started before the Judicial Magistrate be prematurely terminated. Now-a-days, this power is likely to be abused. Probably, it is because of the aforesaid power of the administrative superior under Section 195 (2) Cr.P.C. that, unlike in the case of offences covered by Section 195 (1) (b), no appeal is provided against the orders passed by the public servant concerned under Section 195 (1) (a).

1. PROSECUTION FOR OFFENCES AGAINST PUBLIC JUSTICE AND FOR OFFENCES RELATING TO DOCUMENTS GIVEN IN EVIDENCE.

7. Clause (b) of Section 195 (1) prescribes the pre-requisites for prosecution of a person for offences against public justice and for offences relating to documents given in evidence. As in the case of the offences mentioned under Clause (a) of Section 195 (1) Cr.P.C. where it is the public servant concerned or his administrative superior who can file a complaint, under Clause (b) of Section 195 (1) also it is the Court before which the offences were committed or some other Court to which that Court is subordinate, which can file a complaint and such complaint also should be in writing. The appropriate Judicial Magistrate can take cognizance of any of the offences covered by Section 195 (1) (b) Cr.P.C. only on such written complaint by such "Court".

C1. Offences covered by Section 195 (1) (b) Cr.P.C.

8. The following are the offences covered by Section 195 (1) (b) Cr.P.C. :-

1. Any offence punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 IPC (which are offences of giving false evidence and against public justice dealt with in Chapter XI of IPC) when alleged to have been committed in or in relation to any proceeding in any Court , or

(NOTE:Since the offence of giving false evidence under Section 191 IPC and the offence of fabricating false evidence under Section 192 IPC are both punishable under Section 193 IPC, the conditional bar against taking cognizance under Section 195 (1) Cr.P.C. applies to both those offences. (vide Premjith Kaur v. Harsinder Singh (1982) 2 SCC 167)

1. any offence described in Section 463, or punishable under Sections 471, 475,476 IPC alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(NOTE: The opening words employed in Clause (ii) are "any offence described in Section 463" and not "any offence punishable under Section 463". The above words in Clause (ii) have some significance. Those words are wide enough to cover different shades of forgery such as those punishable under Sections 466, 467, 468, 469 etc of IPC. (vide Gopalakrishna Menon v. Raja Reddy (1983) 4 SCC 240 = AIR 1983 SC 1053.)

Any offence committed with respect to a document before its production in Court or before giving it in evidence before Court, cannot be said to be an offence affecting the administration of justice. Hence the bar contained in Section 195 (1) (b) (ii) Cr.P.C. is attracted only when the offences enumerated in the said provision are committed with respect to a document after it is produced or given in evidence in any Court and during the time when the document is custodia legis(vide Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 = AIR 2005 SC 2119 – 5 Judges; Kishorebhai Gandubhai Pethani v. State of Gujarat (2014) 13 SCC 539.)

• any criminal conspiracy to commit, or attempt to commit, or the abetment of any of the aforementioned offences.

C2. Pre-requisites for a prosecution under

Section 195 (1) (b) Cr.P.C.

9. One of the pre-conditions for the launching of a prosecution under Section 195 (1) (b) Cr.P.C. (as in the case of a prosecution under Section 195 (1) (a) Cr.P.C.) is that if the offences enumerated under Clauses (i) to (iii) of Section 195 (1) (b) have been committed in or in relation to any proceeding in any "Court" (which expression has been explained in Section 195 (3) Cr.P.C.), then the offender can be prosecuted only by means of a written complaint and that too by the Court before which the offences were committed or by some other Court to which that Court is subordinate. This is a mandatory requirement of Section 195 (1) (b) Cr.P.C. (vide M.S. Ahlwat v. State of Haryana (2000) 1 SCC 278 = AIR 2000 SC 168 -3 Judges). Thus, no private person can prosecute the offender under this Section. Another requirement is that prior to the making of a complaint before the appropriate Judicial Magistrate, the Court concerned or its superior Court, is given the power under Section 340 Cr.P.C. to conduct a preliminary inquiry into the alleged offence. In fact, Section 340 Cr.P.C. prescribes the procedure for launching a prosecution for any of the offences enumerated under Section 195 (1) (b) Cr.P.C. Action under Section 340 Cr.P.C. can be commenced by the Court either suo motu or on the strength of an application by a person who need not necessarily be a party to the proceedings in connection with which the offence was allegedly committed. Unlike in the case of a public servant, the Court before which the specified offences have been committed, cannot straightaway lodge a complaint before the appropriate Judicial Magistrate. The complaint which is to be filed by the Court or its superior Court may be preceded by a preliminary inquiry under Section 340 Cr.P.C. The purpose of such preliminary inquiry, if any, conducted by the Court is not find out whether the alleged offence has been committed or not but to find out whether it is expedient in the interests of justice to conduct an inquiry into any of the enumerated offences which appear to have been committed by the offender.(vide Prithish v. State of Maharashtra (2002) 1 SCC 253 = AIR 2002 SC 236 – 3 Judges). Expediency in this context will normally be judged by the Court not by weighing the magnitude of the injury suffered by the person affected by such offence but by having regard to the effect or impact of the commission of such offence upon the administration of justice. (vide para 23 of Iqbal Singh Marwah v. Meenakshi Marwah (2005) 4 SCC 370 = AIR 2005 SC 2119 – 5 Judges). Section 340 Cr.P.C. reads as follows:-

"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 proceeding 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 thinks 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, or 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.

(2) The power conferred on a Court by sub- section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub- section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195.

(3) A complaint made under this section shall be signed,-

(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint;

(b) in any other case, by the presiding officer of the Court or by such officer of the Court as the Court may authorise in writing in this behalf.

(4) In this section," Court" has the same meaning as in section 195."

Holding a preliminary inquiry under Section 340 Cr.P.C. is not a must. After conducting a preliminary inquiry, if any, it is only if the Court considers it expedient in the interests of justice to proceed further, need the Court take steps to file a complaint before the appropriate Judicial Magistrate. Even the preliminary inquiry can be dispensed with if the Court is otherwise satisfied that it is expedient in the interests of justice that the offence should be further probed by filing a complaint. (vide paras 16 and 18 of Pritish v. State of Maharashtra (2002)1 SCC = AIR 2002 SC 236 – 3 Judges)

C3. Forums before which a prosecution under Section 195 (1) (b) can arise

10. The question of prosecuting a person for any of the offences enumerated under Clauses (i) to (iii) of Section 195 (1) (b) Cr.P.C. can evidently crop up only before any adjudicating body having the authority to take evidence. Sub-section (3) of Section 195 Cr.P.C., therefore, defines the expression "Court" to mean a Civil, Revenue or Criminal Court and also to include a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a "Court" for the purposes of Section 195 (1) (b). (See also Keshab Narayan Banarjee v. State of Bihar (2000) 1 SCC 607 = AIR 2000 SC 485). As per Section 22(3) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the "Tribunal" and "Appellate Tribunal" under the said Act have been deemed to be Civil Courts for the purposes of Section 195 and Chapter XXVI of Cr.P.C. Likewise, Section 136 of the Income Tax Act, 1962, declares that any "income-tax authority" shall be deemed to be a Civil Court for the purposes of Section 195 and Chapter XXVI of Cr.P.C. The "Claims Tribunal" under the Motor Vehicles Act, 1988 is also declared to be a Civil Court for the purposes of Section 195 and Chapter XXVI Cr.P.C. by virtue of Section 169 (2) of the Motor Vehicles Act . There is a similar declaration of the "District Forum" under Section 13 (5) of the Consumer Protection Act, 1986. Section 12 (2) of the Monopolies and Restrictive Trade Practices Act, 1969 declares that the "Commission" shall be deemed to be a Civil Court for the purposes of Section 195 and Chaptter XXVI of Cr.P.C. Under Section 22 (3) of the Administrative Tribunals Act, 1985 the "Tribunal" is deemed to be a Civil Court. The reason for deeming the aforesaid authorities under those statutes to be "Civil Courts" may be because the adjudicating agencies under the aforesaid statutes are essentially exercising civil jurisdiction. But an "arbitrator" under the Arbitration and Conciliation Act, 1996 is not a Court and hence the question of applying Section 340 Cr.P.C. to arbitrual proceedings does not arise. (vide ManoharLal v. Vineesh Anand (2001) 5 SCC 407 = AIR 2001 SC 1820). Again a "Sales Tax Officer" is not a Court and, therefore, a complaint by him under Section 195 Cr.P.C. alleging an offence punishable under Section 471 IPC, is not necessary for taking cognizance of such offence said to have been committed in a proceeding before him. Merely because certain instrumentalities of the State have to perform certain quasi judicial functions, they are not converted into Courts. (vide Jagannath Prasad v. State of U.P. AIR 1963 SC 416). The Sub Registrar under the Indian Registration Act, 1908 being neither a Civil nor a Criminal nor a Revenue Court nor a Tribunal of the nature mentioned in Section 195 (3) Cr.P.C. can hardly come within the ambit of the expression "Court" as contemplated by Section 195 (3) Cr.P.C. (vide Ajoy Kumar v. Raj Ballav 1978 Cri.L.J. 1502 (Calcutta).

C4. "Some other Court" to which the original Court is subordinate

11. As we have already seen, the offender under any of the Sections covered by sub-clauses (i) to (iii) of Section 195 (1) (b) can be prosecuted only by the Court before which those offences were committed or by any other Court to which the said Court is subordinate. Unlike in the case of a public servant covered by Section 195 (1) (a) Cr.P.C. whereunder the some other public servant should be one to whom the public servant concerned is administratively subordinate, in the case of original Court in relation to the proceedings in which the specified offences were allegedly committed, the some other Court referred to in Section 195 (1) (b), should be one to which the original Court is judicially and not administratively subordinate. The criterion for such judicial subordination is statutorily fixed under sub-section (4) of Section 195. The said sub-section reads as follows :-

"(4)For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court in situate:

Provided that-

(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;

(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."

Thus, in the case of "Courts" as defined under Section 195 (3) Cr.P.C. it is the judicial hierarchy as stipulated by Section 195 (4) Cr.P.C. and not the administrative hierarchy, which is to be applied in order to find out the superior Court to which the original Court is subordinate. In other words, the subordination under Section 195 (4) is judicial subordination and not administrative subordination. (vide paras 19 and 22 of State of A.P. v. Sarma Rao (2007) 2 SCC 159 = AIR 2007 SC 137). Accordingly, if the specified offences were committed before a Munsiff, it is either the Munsiff himself or his judicial superior, namely, the District Judge who can also file a complaint in view of Section 195 (4) Cr.P.C. as interpreted by the High Court of Kerala in Rocky v. A. Pavunni and others 2015 (1) KLT 547; Shibu George v. Jijimon 2019 (2) KLT 241. A Constitution Bench of the Supreme Court in paragraph 11 of Kuldip Singh v. State of Punjab = AIR 1956 SC 391 – 5 Judges observed that subordination has been given a special meaning in Section 195 (3) of the old Code (corresponding to Section 195 (4) Cr.P.C.) and that it is not any superior Court which has jurisdiction, nor any Court to which the "former Court" is subordinate, but only the Court to which it is subordinate within the meaning of Section 195 (3). In that case, the Constitution Bench held that the Court superior to the Sub Judge in the State of Punjab was the District Court and not the Senior Sub Judge or Additional District Judge. Similarly, if the offences were committed before the Additional Munsiff, the Principal Munsiff or the Sub-Judge cannot file a complaint since the Additional Munsiff is not subordinate to the Principal Munsiff or to the Sub-Judge for the purpose of Section 195 (1) (b) Cr.P.C. in view of Section 195 (4) Cr.P.C. If the offences were allegedly committed before a Sub Court in the State of Kerala, the other Court to which the Sub Court would be subordinate is the District Court or the High Court, depending upon the valuation as provided under Section 13 of the Kerala Civil Courts Act, 1957. (vide Palakkatumala Devaswom v. Pylee 1969 KLT 275 (FB); Jose Joseph v. Syndicate Bank 1997 (1) KLT 320 (DB). But under the Land Acquisition Act, 1894 since appeals from the judgment of the Sub Judge (Reference Court) lies only to the High Court, it will be High Court and not the District Court which will be the Court to which the Sub Court will be subordinate. (vide State of A.P. v. Sarma Rao (2007) 2 SCC 159 = AIR 2007 SC 137). Again if the Division Bench of the High Court is the original Court, the Supreme Court will be the Court to which the Division Bench is subordinate. (vide M. S. Sheriff v. State of Madras AIR 1954 SC 397) Likewise, if the offences were committed before a Judicial Magistrate of the first class, a Sub Judge or a District Judge cannot file a complaint since the Magistrate is not subordinate to the Sub Judge or District Judge for the purpose of Section 195 (1) (b) Cr.P.C. In such a case the complaint can be filed only by the Sessions Judge to whom the Magistrate is subordinate within the meaning of Section 195 (4) Cr.P.C.

C5. Power of the superior Court under Section 195 (1) (b) Cr.P.C.

12. In a case where the original Court has lodged a complaint before the appropriate Magistrate, just as in the case of a public servant acting under Section 195 (1) (a)Cr.P.C., the superior Court can also withdraw the complaint but only while exercising its appellate powers under Section 341 Cr.P.C. The provision corresponding to sub-section (2) of Section 195 Cr.P.C. which relates to public servants, is applicable to "Courts" also in the case of a prosecution involving offences under Section 195 (1) (b) Cr.P.C. but the enabling provision for Courts is to be found in Section 341 Cr.P.C. which is the provision for appeal. Where the original Court has not made a complaint or has rejected an application to make a complaint under Section 340 (1) Cr.P.C. the superior Court to which the original Court is subordinate within the meaning of Section 195 (4) Cr.P.C. can exercise the power of the original Court under Section 340 (1) Cr.P.C. by virtue of Section 340 (2) Cr.P.C. and can make a complaint to the Judicial Magistrate concerned. The power which such superior Court can exercise under Section 340 Cr.P.C. are :-

1. to make a complaint under Section 340 (2) Cr.P.C. to the appropriate Judicial Magistrate in a case where the original Court has not made a complaint or has rejected a complaint under Section 340 (1) Cr.P.C.; or

1. to deal with under Section 340 (2) Cr.P.C. an application filed by a person requesting to make a complaint before the appropriate Magistrate; or

1. to make suo motu action either under Section 340 (2) Cr.P.C. or under Section 341 Cr.P.C.

The Supreme Court in Perumal v. Janaki (2014) 5 SCC 377 has held that in appropriate cases the Superior Court to which the original Court is subordinate, is under a duty to exercise its powers under Section 195 Cr.P.C. even suo motu to maintain purity of the legal system.

C6. The scope of "preliminary inquiry" under Section 340 Cr.P.C.

13. As already mentioned above, Section 340 (1) Cr.P.C. is attracted only in a case where either upon an application by any person or otherwise (which may include suo motu action) the Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any of the offences referred to in Section 195 (1) (b) which appears to have been committed in or in relation to a proceeding in that Court or in respect of a document produced or given in evidence in a proceeding in that Court. The application contemplated by Section 340 (1) Cr.P.C. can be made by any person and it is not necessary that such person must be a party to the original proceedings. (vide Murali Krishna Das v. Inspector General of Police 1978 KLT 292 (Kerala); R. Natarajanv. B.K. Subba Rao (2003) 2 SCC 76 = AIR 2003 SC 541) Going by the wording of Section 340 (1) Cr.P.C. preliminary inquiry is not a must. (vide paras 16 and 18 of Pritish v. State of Maharashtra (2002) 1 SCC 253 = AIR 2002 SC 236 – 3 Judges).Even in a case where the Court conducts a preliminary inquiry under Section 340 (1) Cr.P.C. the Court is not required to afford an opportunity of hearing to the person against whom the Court might file a complaint. (vide paras 13 to 15 and 19 of Pritish v. State of Maharashtra (2002) 1 SCC 253 = AIR 2002 SC 236 – 3 Judges). (But Form No. 33 of Appendix-I to the Kerala Criminal Rules of Practice, suggests that a notice is to be issued to the person proceeded against under Section 195 (1) (b) Cr.P.C. so as to give him an opportunity of being heard). But, in case where the Court finally concludes that it is expedient in the interests of justice that a complaint should be filed, Section 340 (1) Cr.P.C. contemplates an action as follows:-

• Record a finding to the effect that it is expedient in the interests of justice that an inquiry should be made into an offence under Section …….. IPC which appears to have been committed in/in relation to a proceeding in that Court

Or

Record a finding to the effect that it is expedient in the interest of justice that an inquiry should be made into an offence under Section ……… IPC which appears to have been committed in respect of a document produced or given in evidence in the proceedings in that Court.

• Prepare a complaint concerning the aforementioned offence. Such complaint shall be signed either by the presiding officer of the Court or by such officer as the Court may authorise in writing in that behalf as provided under Section 340 (3) (b). If the Court making the complaint is the High Court, it may be signed by such officer of the Court as the Court may appoint under Section 340 (3) (a)Cr.P.C.

• Send the complaint to the Magistrate of the first class having jurisdiction.

• Take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable, the Court may send the accused in custody to such Magistrate, and

• Bind over any person to appear and give evidence before such Magistrate

The Magistrate before whom a complaint in writing is finally made by the Court, has to deal with the same as if it were a case instituted on a Police report.(vide Section 343 (1) Cr.P.C.)

1. APPEAL UNDER SECTION 341 Cr.P.C. AND ITS SCOPE

14. The person aggrieved by the action or inaction by the Court under Section 195 (1) (b) read with Section 340 Cr.P.C., is given a right of appeal under Section 341 Cr.P.C. which reads as follows :-

"341Appeal –

(1) Any person on whose application any Court other than a High Court has refused to make a complaint under sub- section (1) or sub-section (2) of section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of sub- section (4) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be, making of the complaint which such former Court might have made under section 340, and if it makes such complaint, the provisions of that section shall apply accordingly.

(2) An order under this section, and subject to any such order, an order under section 340, shall be final, and shall not be subject to revision.

Thus, Section 341 (1) Cr.P.C. provides for an appeal by a person –

i. on whose application any Court, other than the High Court, has refused to make a compliant under Section 340 (1) or under Section 340 (2) Cr.P.C.

Or

ii. against whom a complaint has been made by such Court.

But, if it is the High Court which has refused to make a compliant on the application by any person either under Section 340 (1) or under Section 340 (2) Cr.P.C. or has made a complaint against a person, then no appeal is provided to such person under Section 341 (1) Cr.P.C.

D1. Power of the Appellate Court

15. The Appellate Court acting under Section 341 (1) Cr.P.C. may, after notice to the parties concerned, pass any of the following orders:-

i. direct withdrawal of the complaint. (This power is analogous to the power of the administrative superior of the public servant under Section 195 (2) Cr.P.C.), or

ii. make a complaint which the original Court might have made under Section 340 Cr.P.C. and thereupon the provisions of Section 340 Cr.P.C. shall apply accordingly.

D2. No appeal and no revision in certain cases

16. Where the case has been initiated suo motu by the Court under Section 340 (1) or under Section 340 (2) Cr.P.C., the State is not entitled to file an appeal under Section 341 Cr.P.C. If such an appeal is not maintainable, a revision also will not lie in view of the specific embargo created under Section 341 (2) Cr.P.C. (vide K. Sudhakaran v. State of Kerala (2009) 4 SCC 168). But in a case where the Appellate Court (which is none other than the superior Court to which the original Court is subordinate) makes a complaint under Section 340 Cr.P.C., the person aggrieved has a right of appeal under Section 341 Cr.P.C. In Lalit Mohan Mondal v. Benoyendra Nath Chatterjee (1982) 3 SCC 219 it was held by the Apex Court that the High Court has inherent jurisdiction under Section 482 Cr.P.C. to interfere with an appellate order passed under Section 341 though such an order is not revisable under Section 397 (2) Cr.P.C.

D3.Forum for appeal under Section 341 Cr.P.C.

17. Interestingly, the Forum for appeal under Section 341 Cr.P.C. is the very same superior Court to which the original Court (before which the offences enumerated under Section 195 (1) (b) (i) to (iii) were committed) is deemed to be subordinate within the meaning of Section 195 (4) Cr.P.C as provided under Section 341 (1) Cr.P.C. Hence, if the action is taken by the original Court under Section 340 (1) Cr.P.C., then the appeal would like to that superior Court to which the original Court is subordinate within the meaning of Section 195 (4) Cr.P.C. If on the other hand, action is taken by the aforesaid superior Court under Section 340 (2) Cr.P.C., then the appeal will lie to that superior Court to which the Court taking action is subordinate within the meaning of Section 195 (4) Cr.P.C. That apart, the Forum for appeal under Section 341 Cr.P.C. will have to be determined with reference to the nature of the main proceedings before the Court which initiated action under Section 340 Cr.P.C. To put it differently, the nature of the main proceeding before the original Court will determine the nature of the appellate Forum as well as can be seen from Section 195 (4) Cr.P.C. Thus, if the offences were allegedly committed before a Munsiff, then the Forum for appeal is the District Court (to which appeals ordinarily lie from decrees passed by such Munsiff ) and not to the Sessions Court even if it is the same Judge (District and Sessions Judge) who hears the appeals both on the civil and criminal side (vide Rocky v. Pavunni and others 2016 (1) KLT 547; Shibu George v. Jijimon 2019 (2) KLT 241.) But in a case where the proceedings are before the Munsiff's Court and action taken under Section 340 (2) Cr.P.C. is by the District Court in its capacity as the Court to which the Munsiff is subordinate, then the appeal from such action will be to the High Court by the force of Section 340 (2) read with Section 195 (4) Cr.P.C. But, where the original proceedings were before the Sub Court in its capacity as the Reference Court under the Land Acquisition Act, 1894, since appeals under the Land Acquisition Act lie only to the High Court and not to the District Court, any person aggrieved by the action taken by such Sub Court will have to approach the High Court for the purpose of appeal under Section 341 Cr.P.C. (vide State of A.P. v. Sarma Rao (2007) 2 SCC 159 = AIR 2007 SC 137). Similarly, appeals under Section 341 Cr.P.C. from the original proceedings before a Magistrate of first class will lie only to the Sessions Judge to whom appeals from sentences passed by such Magistrate lie under Section 374 (3) (a) Cr.P.C. Likewise, appeals under Section 341 from original proceedings before a Sessions Court will lie only to the High Court to which appeals from sentences passed by the Sessions Court lie under Section 374 (2) Cr.P.C. The High Court in such a case will be the Court to which the Sessions Court is subordinate within the meaning of Section 195 (4) Cr.P.C. and Section 340 (2) Cr.P.C. The appellate Court has thus a dual capacity one as a superior Court to which the original Court is subordinate for the purpose of exercise of power under Section 340 (2) Cr.P.C. and the other as the appellate Court acting under Section 341 (1) Cr.P.C.

18. It is here that some confusion prevails among the Bench and the Bar alike. As already seen, an appeal under Section 341 Cr.P.C. against any action taken by a Civil Court either under Section 340 (1) or under Section 340 (2) Cr.P.C. will lie to the civil appellate court as provided under Section 195 (4) Cr.P.C. Likewise, an appeal under Section 341 Cr.P.C. from the original proceedings before a criminal Court will lie to the criminal appellate court as provided under Section 195 (4) Cr.P.C. Whether it is the civil appellate court or the criminal appellate court, the fact remains that the appeal is one preferred under Section 341 Cr.P.C. The procedure of the appellate Court under Section 341 for making a complaint is also the same procedure which the original Court might have followed under Section 340 Cr.P.C. read with Section 195 (4) Cr.P.C. In addition, the appellate Court has also the power to withdraw the complaint already made by the original Court under Section 340 (1) or by the superior Court under Section 340 (2) before the Judicial Magistrate having jurisdiction. Thus, the appeal is under the Cr.P.C. and the proceedings are also criminal in nature. Just because in some category of cases which originated before a Civil Court the appeals therefrom are filed before the civil appellate court, the nature and content of the appeals filed under Section 341 Cr.P.C. do not change. Let us assume that the proceedings under Section 340 Cr.P.C. arose before a Sub Court as happened in Shibu George v. Jijimon 2019 (1) KLT 241. Merely because the appeal therefrom lies to the District Court (which is a civil appellate court) and the same has been numbered as a Civil appeal, (actually it should be numbered as a criminal appeal) the nature and content of such appeal filed under Section 341 Cr.P.C. cannot change. What happened in Shibu George's case was that during the pendency of the appeal filed under Section 341 Cr.P.C. before the District Court, the appellant/plaintiff died. His son filed a petition before the District Court for leave to continue the appeal. No orders were passed on the said petition. Later on, the appeal itself was dismissed as abated. The above decision of the District Judge was assailed before the High Court by the plaintiff's son by filing a Criminal Miscellaneous Case under Section 482 Cr.P.C. The Registry of the High Court raised an objection about the maintainability of the Crl.M.C. before the High Court against the decision of the Civil Court. The matter was taken up on the judicial side and the learned Judge upheld the objection of the High Court Registry and also upheld the decision of the District Court. The High Court, however, gave the son of the plaintiff an opportunity to file applications before the District Court for impleadment, for setting aside abatement and for condoning the delay, which is the remedy available under Order XXII of the Code of Civil Procedure, 1908 ("CPC" for short) to an appellant in a civil appeal.

19. A deeper probe regarding certain aspects is necessary in Shibu George's case.

• Which was the provision of law under which the appeal filed before the District Court under Section 341 Cr.P.C. abated ?

• Was the appeal filed under Section 341 Cr.P.C. before the District Court in its capacity as a civil appellate court within the meaning of Section 195 (4) Cr.P.C., governed by the provisions of the CPC ?

• Were the provisions of Order XXII CPC applicable to the aforesaid appeal which was one filed under the Cr.P.C. ?

• Supposing the original proceedings were before a Judicial Magistrate of first class and in the appeal taken therefrom under

Section 341 Cr.P.C. before the Sessions Court, the appellant were to die pending appeal, will that appeal abate, and if so, under what provision ?

• Are the provisions of Order XXII CPC applicable to such an appeal filed before the Sessions Court ?

• Can the appeals filed before the civil appellate court and the criminal appellate court invoking the very same Section 341 Cr.P.C., be treated differently ?

20. My considered opinion is that whether it be before the civil appellate court or before the criminal appellate court, the appeal under Section 341 Cr.P.C. is basically a criminal appeal and the proceedings are also criminal proceedings. Applying Section 4 of Cr.P.C. also, a criminal appeal filed under Section 341 Cr.P.C. has to be disposed of as per the procedure prescribed by the Cr.P.C. There is nothing strange in a Civil or Revenue or Criminal Court taking cognizance of a criminal offence and trying the offender. Section 345 Cr.P.C. will show that it is not foreign to the Cr.P.C. for a Civil, Criminal or Revenue Court trying a criminal offence and passing a sentence. The provision in the Cr.P.C. providing for abatement of criminal appeals is to be found in Section 394. But then the said provision applies only to appeals under Chapter XXIX Cr.P.C. But an appeal under Section 341 is not under Chapter XXIX of Cr.P.C. Hence, such an appeal cannot abate on the strength of Section 394 Cr.P.C. consequent on the death of the appellant. But if the person who is dead is the appellant against whom a complaint has been made by the lower Court under Section 340 Cr.P.C. or if the person who is dead is the respondent in the appeal against whom the lower Court did not or refused to file a complaint, the appeal may become infructuous. The proper course, in my humble opinion, would be for the Appellate Court to dispose of the appeal taking cue from the decision in Khedu Mohton v. State of Bihar AIR 1971 SC 66 which held that death of the appellant does not relieve the appellate court of its duty to dispose of the appeal on merits. Supposing, after filing an application under Section 340 (1) Cr.P.C., the applicant dies the matter does not end there. The legal heirs of the applicant can be permitted to prosecute the proceedings. (vide Chand Devi Daga v. Manju K. Humatani (2018) 1 SCC 71 = AIR 2017 SC 5126). (The application filed by the son of the plaintiff in Shibu George's Case seeking leave to continue the appeal was, in my view, liable to be allowed.)

CONCLUSION

21. My conclusion with regard to the prosecution of offender for any of the offences enumerated under Clause (a) or under Clause (b) of Section 195 (1) Cr.P.C., is, therefore, as follows:-

• a) Prosecution of offences covered by Clause (a) of Section 195 (1) Cr.P.C., if committed before a public servant can be launched in the form of a written complaint before the appropriate Judicial Magistrate being jurisdiction to try those offences only by such public servant or by some other public servant to whom he is administratively subordinate.

• The public servant who is administratively superior to the public servant concerned can also launch the prosecution as above and in that event, he can direct the withdrawal of a complaint already made by the public servant concerned provided the trial of the case has not concluded before the Judicial Magistrate concerned.

• The procedure under Section 340 Cr.P.C. is not applicable to such complaints to be made by the public servant

• Besides the power of withdrawal given to the superior public servant, there is no appeal provided for against the exercise of power under Section 195 (1) (a) Cr.P.C.

• a) The combined effect of Section 195 (1) (b) and Section 340

Cr.P.C. is that in respect of the offences specified in sub-clauses (i) to (iii) of Section 195 (1) (b) Cr.P.C., if committed in or in relation to any proceeding before any "Court" (as defined u/s 195 (3) Cr.P.C.), the said Court or its superior Court within the meaning of Section 195 (4) Cr.P.C., alone can file a complaint in writing before the appropriate Judicial Magistrate having jurisdiction to try those offences.

b) For the purpose of considering whether an inquiry into any of those offences should be conducted or not before making the aforesaid complaint in writing, such Court, either suo motu or an application by any person (who need not necessarily be a party to the proceedings before the Court) may or may not conduct a preliminary inquiry under Section 340 Cr.P.C. If the Court is of opinion that it is expedient in the interests of justice to do so, it may make a complaint in the manner provided u/s 340 (1) Cr.P.C by taking the measures enumerated as (a) to (e ) in paragraph 13 above.

c) In appropriate cases the superior Court (to which the original Court is subordinate within the meaning of Section 195 (4) Cr.P.C.) is under a duty to exercise the powers under Section 195 Cr.P.C. even suo motu to maintain the purity of the legal system.

d) The forum for appeal u/s 341 Cr.P.C. will have to be decided depending on the nature of the proceeding before the original Court in accordance with Section 195 (4) Cr.P.C. If the original Court before which the offences enumerated under Section 195 (1) (b) Cr.P.C. have been committed, is a civil Court, the appeal under Section 341 Cr.P.C. will lie before the civil appellate Court within the meaning of Section 195 (4) Cr.P.C. If the original Court is a criminal Court, the appeal therefrom under Section 341 Cr.P.C. will lie before the criminal appellate court within the meaning of Section 341 Cr.P.C.

• Whichever may be the appellate forum (whether Civil or Criminal) since the appeal under Section 341 Cr.P.C. partakes the character of a criminal appeal, it will have to be registered and disposed of as a criminal appeal. On the death of any of the parties to such appeal, if the death does not render the appeal infructuous, it shall be disposed of on merits ignoring the factum of death.

Justice V Ramkumar is a Former Judge at High Court of Kerala