V. Lawrence and A. Mahendran vs The State

K.N. Basha, J.—The revision Petitioners who are arrayed as A1 and A2, have come forward with the above revision challenging the order

passed by the learned Judicial Magistrate No. 1, Pollachi, Coimbatore District dated 16.12.2002 made in CC. No. 453/2002 convicting A1 for

the offence u/s 205 read with 109 IPC and convicting A2 for the offence under Section. 205 IPC and sentencing each of the accused to undergo 4

weeks rigorous imprisonment and to pay a fine of Rs. 5,000/- each and in default, to undergo 6 months rigorous imprisonment for their respective

convictions.

The case of the prosecution is that A2 has impersonated the witness No. 2 in a case in C.C. No. 546 of 2001 for the offence u/s 379 IPC and

deposed falsely in the said case and A1 has abetted the offence committed by A2 and thereby, both of them have been implicated for the offences

under Sections 205 read with 109 IPC (A1) and 205 IPC (A2).

It is seen that the case was registered by the Respondent police on the basis of the complaint preferred by the Head Clerk of the Judicial

Magistrate Court No. II, Pollachi, in Crime No. 392 of 2002 for the offences under Sections 419 and 420 IPC. The said FIR was registered on

11.07.2002. After the completion of investigation, a charge sheet was filed for the offences under Sections 205 read with 109 IPC as against A1

and u/s 205 IPC as against A2. Both the accused have been furnished the copies as per the provision u/s 207 Code of Criminal Procedure

Thereafter, the learned Magistrate being satisfied to the effect that there is a prima facie case made out against the revision Petitioners, framed the

charges against A1 for the offence under Sections 205 read with 109 IPC and against A2 for the offence under Section. 205 IPC. The learned

Trial Magistrate read over the charge and explained to the accused and questioned whether they are pleading guilty of the offences charged against

them or claim to be tried. Both the accused, viz., the revision Petitioners pleaded guilty for the offences. They have filed a Memo to that effect.

They have stated that A1 studied B.A., M.Ed., and A2 is a B.A., graduate. The learned Magistrate, on consideration of the Memo filed by the

revision Petitioners pleading guilty for the above said offences, convicted and sentenced them as stated above. Aggrieved against the said order,

the present revision is filed by the revision Petitioners.

Mr. P. Saravanan, learned Counsel for the revision Petitioners, mainly contended that since the offences are said to have been committed in

relation to a proceeding pending in the Magistrate court and particularly, in respect of the offences referred u/s 195(1)(b)(i) Code of Criminal

Procedure, the learned Magistrate ought to have followed the procedure contemplated u/s 340 Code of Criminal Procedure It is pointed out that

as per Section 195(1)(b)(i) Code of Criminal Procedure, the offence u/s 205 IPC is also mentioned apart from the other offences and as far as the

case on hand is concerned, the revision Petitioners have been implicated mainly for the offence u/s 205 IPC and such being the position, the

procedure to be adopted is only as contemplated u/s 340 Code of Criminal Procedure It is further contended that as per the provision u/s 340(3)

(b) Code of Criminal Procedure, such a complaint is to be preferred and signed by the Presiding Officer of the court or by such officer of the court

as the court may authorise in writing in this behalf. The learned Counsel for the revision Petitioner would contend that the procedure contemplated

u/s 340(3)(b) of Code of Criminal Procedure is not at all followed in the instant case and a complaint was preferred by the Head Clerk of Judicial

Magistrate Court No. II, Pollachi, and the First Information Report was registered only for the offence under Sections 419 and 420 IPC. It is

pointed out by the learned Counsel for the revision Petitioner that even in the said complaint it was specifically alleged that the offences alleged

against the revision Petitioners have been committed in respect of the pending proceedings and as such, Section 195(1)(b)(i) and 340 of Code of

Criminal Procedure, are attracted and therefore, there is a specific bar for investigation to be conducted by the police and the Court also cannot

take cognizance for such offence committed during the pendency of legal proceedings. The learned Counsel for the revision Petitioner would

further contend that even the prosecution has filed the charge sheet for the offences under Sections 205 read with 109 IPC against A1 and u/s 205

IPC against A2 and the said offences are included u/s 195(1)(b)(i) of Code of Criminal Procedure. It is submitted that in view of the above said

illegality, the entire proceedings is vitiated.

The learned Counsel for the revision Petitioners, in support of his contention, placed reliance on the judgment of the Punjab and Haryana High

Court in Sardul Singh Vs. State of Haryana, .

Heard the learned Additional Public Prosecutor on the submissions of the learned Counsel for the revision Petitioners. It is submitted by the

learned Additional Public Prosecutor that a complaint was preferred by the Head Clerk of the Magistrate Court and on receipt of the said

complaint, the Respondent police has registered a case for the offences under Sections 419 and 420 IPC. It is further submitted that after the

investigation, a charge sheet was filed for the offence under Sections 205 read with 109 IPC against A1 and 205 IPC against A2. It is fairly

submitted by the learned Additional Public Prosecutor that Section 205 IPC is included as one of the offences u/s 195(1)(b)(i) Code of Criminal

Procedure The learned Additional Public Prosecutor would further contend that since the conviction was on the plea of guilty made by the

accused, it is not open for them, at this stage, to challenge the conviction on the plea that non-following of the procedure contained u/s 195(1)(b)(i)

Code of Criminal Procedure, and Section 340 Code of Criminal Procedure, would vitiate the entire proceedings.

I have given my careful and anxious consideration to the rival contentions put forward by either side and perused the materials available on

record including the impugned order passed by the learned Magistrate.

At the outset, it is to be stated that the sum and substance of the allegation levelled against the Petitioners is to the effect that they have

committed the offences under Sections 205 read with 109 IPC in respect of the pending proceedings before the learned Judicial Magistrate No. II,

Pollachi, as stated above. It is pertinent to note that the First Information Report was registered for the offence under Sections 419 and 420 IPC

and on completion of investigation, the charge sheet was filed for the offence under Sections 205 read with 109 IPC against A1 and u/s 205 IPC

against A2. In view of the specific allegation contained in the complaint constituting the offence u/s 205 IPC, in respect of the pending proceedings

before the Magistrate Court, the investigation by the Respondent police is barred as per the provision u/s 195(1)(b)(i) of Code of Criminal

Procedure The procedure contemplated under Sections 195 and 340 Code of Criminal Procedure alone is to be followed in respect of the said

offences alleged to have been committed relating to a pending proceedings in a Court.

9.0. At this stage, it is relevant to refer Sections 195 and 340 of Code of Criminal Procedure.

9.1. Section 195(1)(b)(i)(iii) of Code of Criminal Procedure, reads as hereunder:

Prosecution for contempt of lawful authority of public servants, for offence against public justice and for offences relating to documents given

in evidence:

(1) No court shall take cognizance

....

(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) ....

(iii) of any criminal conspiracy to commit or, attempt to commit, or the abatement 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).

A reading of the above said provision makes it abundantly clear that the offence u/s 205 IPC is included as per the provision u/s 195(1)(b)(i) of

Code of Criminal Procedure, and in respect of the said offences committed relating to a pending proceedings in a Court, no Court shall take

cognizance except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in wiring in this behalf or of

some other Court to which that Court is subordinate.

9.2. Let me now extract the provision u/s 340 Code of Criminal Procedure in respect of the provisions as to offences affecting the administration

of justice which reads as hereunder:

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 ;

....

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

(a) ....

(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.

A reading of the above said provision makes it crystal clear that in respect of the offence referred to in Section 195 Code of Criminal Procedure,

committed in relation to any pending proceeding before the court, only the Presiding Officer or by such other officer of the court as the court may

authorise in writing is competent to prefer a complaint in writing. It is pertinent to note that the expression in Section 340(3)(b) of Code of Criminal

Procedure, viz., ""by such officer of the court as the court may authorise in writing in this behalf"" was inserted by way of Amendment which came

into force from 16.04.2006.

As far as the case on hand is concerned, the revision Petitioners have been tried, convicted and sentenced for the above said offences in the

year 2002 as per the order dated 16.12.2002. In view of the same, since in this case occurrence was prior to the amendment only the Presiding

Officer alone was competent to prefer a complaint in writing in respect of the offence said to have been committed by the revision Petitioners u/s

205 IPC. In view of the said legal position, this Court has no hesitation to hold that very filing of the complaint is not in accordance with law as the

complaint was preferred only by the Head clerk of the court and not signed and presented by the Presiding Officer and further, the procedure

contemplated u/s 340(3)(b) Code of Criminal Procedure was not at all followed. At the risk of repetition, it is to be reiterated that the offence

alleged against the revision Petitioners is relating to a pending proceedings in the court and therefore, the Respondent police has no jurisdiction to

deal with the matter in view of the specific bar under Sections 195 and 340(3)(b) Code of Criminal Procedure, and as such, the very registration

of the First Information Report leading to the investigation culminating into filing of the charge sheet itself is illegal in this case.

Apart from the above said infirmity, it is to be stated that the complaint was registered for the offences under Sections 419 and 420 IPC and

thereafter, the charge sheet was filed only for the offences under Sections 205 read with 109 IPC against A1 and 205 IPC against A2 and such

being the position, the learned Magistrate ought not to have taken cognizance of the offences alleged against the revision Petitioners since there is a

bar for police investigation as contemplated under Sections 195 and 340 Code of Criminal Procedure Therefore, this Court is of the considered

view that even taking cognizance in the instant case is also vitiated by the above said illegality.

The learned Counsel for the revision Petitioners has rightly placed reliance on the decision of the Punjab and Haryana High Court in Sardul

Singh Vs. State of Haryana, wherein the Punjab & Haryana High Court, in a similar case, has held as here under:

....

A bare glance through the above leaves no doubt that where the offences u/s 193 to 196, 199, 200, 205 to 211 and 228 are alleged to have

been committed in or in relation to any proceedings in any court or offences u/s 463, 471, 475 and 476 of the Penal Code are alleged to have

been committed in respect of a document produced or given in evidence in any proceedings in any court, then taking of cognizance of such

offences is barred by any Court except on the complaint in writing of that Court where such offences were committed or of some other Court to

which such Court is subordinate. Although there are divergent view regarding the application of the above referred provisions of Section 195 of the

Criminal P.C. regarding the document which was forged outside the court but tendered in evidence thereafter in the court and the one where the

forgery regarding the document was committed after it was placed on the file of the court.

A Full Bench of this Court comprising of three Judges in Harbans Singh and Others Vs. State of Punjab, after elaborate discussion had held that

the bar enacted in Section 195 of the Criminal P.C. is applicable to those documents only which are tampered with or fabricated after their

production in the court and not concerning those documents which were fabricated outside the court but tendered in evidence later on. The ratio of

the decision of the above referred Full Bench is under assail before a Larger Full Bench of this Court in Registrar, High Court v. Madan Lal

Sharma Criminal Misc. No. 1342-M of 1985. Any how as in the case in hand admittedly the lady who had allegedly impersonated as Gurnam

Kaur had made a false statement in the court itself, there is no doubt that the above referred provisions of Section 195(1)(b)(i),(ii) and (iii) would

be applicable to the ofences mentioned in Ss. 193 to 196, 199, 200, 205 and 209 of the Penal Code, 1860 and the taking of cognizance of these

offences by any Court except on the complaint in writing of Sub Judge II Class, Hisar or some other superior court to which that Court was

subordinate. In the case in hand, no such sanction was obtained. The facts and circumstances of the case constituting the above referred offences

as well as the offences punishable u/s 467, 468 and 471 are overlapping each other and form part of the same transaction. Thus, by necessary

implication, the provisions of Section 195(1)(b)(ii) would be applicable to these offences also.

The matter does not rest here as the provisions of Section 340 Code of Criminal Procedure, prescribing procedure in cases mentioned in

Section 195 Code of Criminal Procedure further make it clear that the court where such offences mentioned in Sc.195 are committed shall suo

motu or on the application of the aggrieved party shall record a finding regarding the forgery of any document or giving a false evidence and

thereafter, make a complaint thereof in writing and dispatch the same to the Magistrate 1st class having jurisdiction to take cognizance of such

offences. It is further provided that the court shall take sufficient security for the appearance of the accused before such Magistrate, and bind over

any person to appear and give evidence before such Magistrate. The reading of the above referred provisions of Section 195 coupled with the

procedure prescribed in Section 340 C.P.C., absolutely leave no doubt that not only cognizance of such offences without the complaint in writing

of the court concerned is barred but also the investigation into such offences because that will amount to taking over the function of the Court

where forgery was committed by the investigating agency which is against the mandate of Section 340 of the Criminal Procedure Code.

It is relevant to refer a Division Bench decision of Orissa High Court in Laxminarayan Deepak Ranjan Das Vs. K.K. Jha and Others, , in

respect of scope of the provision under Sections 340 and 195 Code of Criminal Procedure The Division Bench in the said decision held as

hereunder:

The object of the Legislature in enacting Section 340 of the Code was to sweep away the cloud of rulings which threatened to smoother the

original enactment (i.e., Section 476(1) and Section 476A of the 1898 Code) and to lay down a simplified procedure on the lines of the existing

procedure as to complaints. There has been complete overhauling of the old provisions, though law substantially remains the same. Section 340 of

the Code incorporates following principles:

(i) ....

(ii) ....

(iii) A proceeding under the provision is an independent and different proceeding from that of the original sessions case.

(iv) The proceeding being penal in nature, in accordance with principles of natural justice the accused should be issued show cause notice to afford

a reasonable opportunity to establish by adducing oral arid documentary evidence that it is not expedient in the interest of justice to prosecute him.

(v) As a condition precedent to filing a complaint; the Court should record a finding that it is expedient in the interests of justice that an enquiry

should be made.

(vi) The provision to record a finding is not merely discretionary but is mandatory, for, an appeal lies against the order of the Court.

(vii) ....

(viii) ....

(ix) It is incumbent on the Court to give a specific finding before making a complaint.

(x) The omission or failure to record a finding that it is expedient in the interests of justice to enquire into the offence is not a mere irregularity

curable under Sections 464 and 465 of the Code as it goes to the root of the matter and the Court will have no jurisdiction to file a complaint

without recording such a finding.

As the Code now stands, both the sanction by a Court and the order by a Court directing a prosecution are done away with and the procedure

in all cases is one of complaint by the Court. Section 195 describes the offences in respect of which a complaint is necessary and Section 340

prescribes the procedure under which a complaint is to be made. Sections 340 and 195 have the same scope and must be read together, with the

result that it is not open to a Court to file a complaint u/s 195 when it is not so open u/s 340. Section 195(1) lays down a bar to the cognizance of

certain offences while Section 340 lays down the procedure as to how the bar imposed by Section 195(1)(b) is to be removed. Where there is no

bar created by Section 195(1)(b), Section 340 has no application. Section 195 of the Code creates a bar on the filing of complaint by all and

sundry and Section 340 of the Code confers exclusive jurisdiction on the Court to proceed for the offences after satisfying itself prima facie about

the correctness of the offences said to have been committed and covered by Section 195(1)(b) of the Code. Thus Sections 195 and 340 of the

Code are supplementary to each other and must be read together.

There is no doubt that not only cognizance of offences referred to in Section 195 of the Code without the complaint in writing of the Court

concerned is barred but also the investigation into such offences, because that will amount to taking over the function of the Court by the

investigating agency which is against the mandate of Section 340 of the Code.

In the decision cited supra, the Division Bench of the Orissa High Court has elaborately dealt with the scope and object of Sections 340 and

195 Code of Criminal Procedure It is highlighted by the Division Bench that it is a condition precedent for filing a complaint, the Court should

record a finding that it is expedient in the interests of justice that an enquiry should be made. It is also made clear by the Division Bench that the

said provision to record a finding is not merely discretionary but is mandatory, for, an appeal lies against the order of the Court.

At this juncture, it is relevant to note that as per Section 340 Code of Criminal Procedure, a person, against whom a complaint has been made

by a Court in respect of the commission of the offence relating to a pending proceeding, is entitled to file an appeal. The Division Bench has further

held that failure to record a finding to the effect that it is expedient in the interest of justice to enquire into the offence is not a mere irregularity

curable under Sections 464 and 465 of the Code as it goes to the root of the matter, and the Court will have no jurisdiction to file a complaint

without recording such a finding. Ultimately, the Division Bench of the Orissa High Court has held in the decision cited supra that there is no doubt

that not only cognizance of offences referred to in Section 195 of the Code without the complaint in writing of the Court concerned is barred but

also the investigation into such offences, because that will amount to taking over the function of the Court by the investigating agency which is

against the mandate of Section 340 of the Code.

The principles laid down by the Punjab and Haryana High Court and the Division Bench of the Orissa High Court in the decisions cited supra

are squarely applicable to the facts of the instant case as in this case also, the learned Judicial Magistrate No. II, Pollachi, has ignored and

overlooked the mandatory provisions under Sections 340 and 195 Code of Criminal Procedure in respect of the offences said to have been

committed by the revision Petitioners relating to a pending proceedings. This Court is of the considered view that the non-compliance of the

mandatory provisions under Sections 340 and 195 Code of Criminal Procedure not only has caused serious prejudice to the accused, but also

resulted in grave miscarriage of justice. The above said lapse on the part of the learned Magistrate by not preferring the complaint in writing in

respect of the offences alleged to have been committed relating to a pending proceeding after recording the finding that it is expedient in the interest

of justice to enquire into the offence as per provisions under Sections 340 and 195 Code of Criminal Procedure is not a mere irregularity, but a

serious illegality vitiating the entire proceedings right from the registration of the First Information Report culminating into filing of the charge sheet

resulting in the conviction and sentence on the revision Petitioners. This Court is also constrained to state that in view of the non-compliance of the

procedure contemplated u/s 340 Code of Criminal Procedure, the revision Petitioners also deprived of their opportunity to challenge the action of

preferring the complaint against them, as per provision u/s 341 Code of Criminal Procedure which would amount to failure of justice. As this Court

has come to the conclusion, in view of the reasons stated earlier to the effect that the entire proceedings is vitiated, the plea of guilty by the revision

Petitioners for the alleged offence is immaterial.

In view of the aforesaid reasons, this Court is compelled to invoke the inherent powers u/s 482 Code of Criminal Procedure in order to secure

the ends of justice to quash the entire proceedings. Accordingly, the revision is allowed and the conviction and sentence imposed on the revision

Petitioners by the learned Judicial Magistrate No. 1, Pollachi in CC. No. 453/2002 dated 16.12.2002 are hereby quashed. Fine amounts, if any

paid, shall be refunded to them.

As the occurrence itself is said to have been taken place as early as in the year 2002 and in view of such lapse of time, the question of giving

liberty to the learned Judicial Magistrate No. II, Pollachi, for initiating proceedings against the revision Petitioners as per the procedure

contemplated u/s 340 Code of Criminal Procedure is not desirable.