Professional Documents
Culture Documents
Project
CrPC - II
Submitted To Submitted By
Assistant Professor Rajat Gupta
Ms. Divya Salim 2013 BA LLB 103
ACKNOWLEDGEMENT
I would like to express my heart full gratitude to Assistant Professor Ms. Divya Salim for giving
me a great opportunity to work on this interesting topic and for her precious advice which was
always helpful to me throughout this work. I would also like to thank my friends for guiding
me wherever needed.
Contents
INTRODUCTION ....................................................................................................................................... 1
OBJECT OF SECTION 195 ......................................................................................................................... 1
NATURE OF SECTION 195........................................................................................................................ 2
LEGISLATIVE DEVELOPMENTS IN SECTION 195 ...................................................................................... 2
WHO CAN MAKE COMPLAINT................................................................................................................. 3
Rent Controller Not Court ................................................................................................................ 4
BAR ON COGNIZANCE ............................................................................................................................. 4
Offence under Section 211, IPC .......................................................................................................... 5
Section 195 and 340............................................................................................................................ 6
CASE LAWS .............................................................................................................................................. 6
Babita Lila and Ors. V. Union of India ......................................................................................... 6
Rit Lal Khatway v. State of Bihar ................................................................................................. 8
Iqbal Singh Marwah v. Minakshi Marwah................................................................................. 10
Masood Pravej v. State of U.P. and Ors. ................................................................................... 12
CONCLUSION......................................................................................................................................... 14
BIBLIOGRAPHY ...................................................................................................................................... 15
Page |1
INTRODUCTION
Taking cognizance of offence is an essential stage in criminal proceedings. Taking
cognizance is sine qua non for trial and it means taking notice of the matter judicially with a
view to initiate prosecution preliminary to the commencement of proceedings. 1 A Magistrate
taking cognizance of an offence has to apply his mind to proceed for examination under Section
200 of the Code of Criminal Procedure (hereinafter referred to as Code).2 Section 190
provides that a Magistrate of First Class may take cognizance of an offence either upon
receiving complaint of facts which constitute offence, police report or suo motu upon receiving
information from a person other than a police officer. However, there are some exceptions
provided under Sections 195 199 where a Magistrate cannot take cognizance as provided u/s
190. These provisions provides how cognizance has to be taken if the offence is one relating to
interference in administration of justice.
Section 195 has three categories of offences. These are:
I. Contempt of lawful authority of public servants
II. Offences against public justice
III. Offences relating to documents given in evidence.
Cognizance of offences mentioned u/s 195 of the Code can only be taken on a written complaint
of the concerned public servant or the court, before whom the alleged offence has been
committed.
1
S.K. Sinha v. Videocon International Ltd., AIR 2008 SC 1213.
2
K.G. Sharma v. Pratap Autowheels, 2002 Cr LJ 3711 (Raj).
3
Law Commission of India, September 1969. 41st Report on , Vol. 1, p. 109 para 15.92.
Page |2
The dignity and prestige of Courts of law must be upheld by their presiding officers, and it
would never do to leave it to parties aggrieved to achieve in one prosecution gratification of
personal revenge and vindication of Courts honor and prestige. To allow this would be to
sacrifice deliberately the dispassionate and impartial calm of Tribunals and to allow a Courts
prestige to be the sport of personal passion.
The court has to exercise judicial discretion before initiating prosecution u/s 195 of the Code.
Every incorrect information does not make it incumbent upon the Court to order prosecution.
In a case4 a person was asked to produce a minor girl in his custody before the Madras High
Court. He produced a substituted girl identifying her and asserting her to be the same girl. High
Court acting u/s 195 of the Code, lodged a complaint against that person for giving false
evidence and misleading the High Court.
4
R. Rathinam v. Kamla Vaiduriam, 1993 Cr LJ 2661 (Mad).
5
M. S. Ahlawat v. State of Haryana, AIR 2000 SC 168.
6
Durgacharan Naik v. State of Orissa & ors, AIR 1966 SC 1775.
Page |3
omitted in the present Code. Under the present Code the scope of Clause (b) (ii) would not be
restricted to offences committed by the parties to the Court proceedings. It was observed by
the Law Commission, Witnesses need as much protection against vexatious prosecutions as
parties and the Court should have as much control over the acts of witnesses that enter as a
component of judicial proceedings, as over the acts of parties.
The provision under the old Code raised several controversial questions such as what would be
the case if the offence is one of abetment and the offender is not party to the proceedings, can
private complaint be maintainable in that case. Many High Courts had taken contrary view that
in case of persons who are not parties to the proceedings and are alleged to have abetted the
commission of forgery by a party, a complaint by the Court is not necessary for prosecuting
them. Thus, to avoid this conflict, Law Commission proposed to enlarge the scope of Section
195. It was observed by the Commission, Taking an overall view of the matter and keeping
in mind the object of the Section, we consider that the scope of Clause (c) should not be
restricted to offences committed by the parties to the proceeding. The clause should apply when
any of the specified offences is alleged to have been committed by any person in respect of a
document produced or given in evidence in any proceeding.
To be a Court, a Tribunal should be charged with a duty to decide disputes in a judicial manner
and declare the rights of parties in definitive judgments.7 To decide in a judicial manner means
that parties are entitled as a matter of right to be heard in support of their claim and adduce
evidence and also imports an obligation on the authority to decide the matter on consideration
of evidence adduced. Thus it has to be seen whether the authority possesses all the attributes
of a Court or not.8 It is to be remembered that Court within this section is not merely a court of
justice, but a court whose duty is to consider evidence and to decide whether it is true or false.9
BAR ON COGNIZANCE
Section 195 is an exception to the general principle regarding taking of cognizance of an
offence which is stated in Section 190 of the Code. The prohibition contained in the Section
195 does not squarely applies to the two categories of offences stated under Section 195. It has
to be seen in light of facts and circumstances of the case whether the bar u/s 195 would be
applicable or not.
In a case12, the Gujarat High Court quashed the complaint and inquiry initiated on the basis of
FIR and set aside the criminal proceedings stating that the cognizance of the case cannot be
taken pursuant to the bar u/s 195. The decision was set aside by the Apex Court stating that
High Court could not interfere and quash the proceedings by an elaborate discussion on the
merits of the matter and in coming to the conclusion that Section 195 of the Code will be a bar.
7
Virendra Kumar Satyawad v. State of Punjab, (1955)2 SCR 1013.
8
Id.
9
Bhibhootibhooshan Adhikari v. Khemchand Chururia, (1934) 61 Cal 792.
10
Manju Gupta v. M. S. Paintal, 1982 CrLJ 817 (Del).
11
Iqbal Singh Narang v. Veeran Narang, AIR 2012 SC 466.
12
Manohar M. Galani v. Ashok N. Advani & Anr, AIR 2002 SC 202.
Page |5
Thus, bar does not apply to investigation initiated on a complaint and comes into picture only
when the Court takes cognizance.
13
Imtiyaz Ahmad v. State of U.P. and Anr., (2001) ILR 2 All 15.
14
M.L. Sethi v. R.P. Kapur and Anr, 1967 Cr LJ 528.
Page |6
CASE LAWS
Babita Lila and Ors. V. Union of India16
RELEVANT FACTS
Appellants are husband and wife and are resident of both Bhopal and Aurangabad. A
search operation was carried out by the Income Tax authorities under the Income Tax
Act, 1961 at both the places.
It was found by the Income Tax Officer (assessing authority) that statements made by
appellants were false and misleading.
Consequently, the Deputy Director of Income Tax (Investigation) - I, Bhopal made a
complaint as prescribed by the Section 195(1)(b), before the Chief Judicial Magistrate
Bhopal.
The Trial Court took cognizance of the matter and initiated proceedings against
appellants under Sections 191, 193 and 200 of the Indian Penal Code.
Appellants moved the High Court for quashing of proceedings on the ground that the
Deputy Director of Income Tax (Investigation) was not appropriate authority to file the
complaint as it was not the appellate authority within the meaning of Section 195(4) of
the Code of Criminal Procedure.
15
Paras Ram v. State of Haryana, 1995 Cr LJ 1603 (P&H).
16
Babita Lila and Ors. V. Union of India, MANU/SC/0967/2016.
Page |7
ISSUE
Whether the Deputy Director of Income Tax (Investigation) was appropriate authority
within the meaning of Section 195(4) of the Code of Criminal Procedure.
It is not disputed between the parties that the search operation did constitute a proceeding under
the Act before the Income Tax authority and therefore the same is deemed to be a judicial
proceeding within the meaning inter alia of Sections 193 and 196 Indian Penal Code and that
every income tax authority for the said purpose would be deemed to be a civil Court for the
purposes of Section 195.
The Income Tax Act does not specifically states that the Deputy Director of Income Tax is the
appropriate authority to which appeals would lie from the orders of the assessing authority. In
the teeth of such mindful and unequivocal module of the Act, recognition of the Deputy
Director of Income Tax to be a forum to whom an appeal would ordinarily lie from any decision
or action of the assessing officer/income tax officer would not only be inferential but would
also amount to unwarranted judicial legislation by extrinsic additions and doing violence to the
language of the law framed. Conferment of appellate jurisdiction on the Deputy Commissioner
of Appeals from the orders/decisions of the assessing officers as is apparent from Section 246
of the Act, has to be construed as a conscious statutory mandate.
The present is thus not a case where this Court can premise that the statute suffers from casus
omissus so as to recognise the Deputy Director of Income Tax as such an appellate forum.
67. The Deputy Director of Income Tax (Investigation)-I Bhopal, (M.P.), in our unhesitant
opinion, therefore cannot be construed to be an authority to whom appeal would ordinarily lie
from the decisions/orders of the I.T.Os. involved in the search proceedings in the case in hand
so as to empower him to lodge the complaint in view of the restrictive preconditions imposed
by Section 195 of the Code.
In the result, the impugned order of the High Court was set aside as the complaint was
unconstitutional in law having been filed by inappropriate authority, incompetent in terms of
Section 195 of the Code.
RELEVANT FACTS
Appellant had filed a written report before the Dy. S. P alleging abduction of his
daughter-in-law and also theft of some household articles against ten persons.
He had also filed a protest-cum-complaint petition before the learned Chief Judicial
Magistrate which was found to be false after the inquiry conducted by the CJM.
Complaint petition was dismissed by the learned Chief Judicial Magistrate and he filed
a complaint petition against the appellant for having committed the offence under the
Sections 182, 193 and 211 of the Indian Penal Code.
The said Complaint was filed by the CJM in his own Court.
The appellant was convicted under Sections193, 211 and 182 or the Penal Code.
17
Rit Lal Khatway v. State of Bihar, 2007 CriLJ 593 (Pat).
Page |9
ISSUE
Does the law permit that complaint can be made by the CJM in his own Court?
How a complaint has to be filed by a Court acting under Section 195?
OBSERVATIONS
CJM has not addressed the Complaint to any Magistrate. It was initially filed in his own court
and was sent to SDJM for taking cognizance and initiating proceedings. For the purpose of
Section 195, complaint has to be given same meaning as given under Section 2(d) of the Code.
On the question of complaint by CJM to his own Court, the Patna High Court stated:
7. The judicial discipline required that if the Chief Judicial Magistrate himself was the
complainant he should not have lodged the complaint petition in his own court. As a matter of
fact this complaint petition should have been lodged by some other court to which the court of
the Chief Judicial Magistrate was subordinate since the complaint petition to begin with has
to be lodged in the court of the Chief Judicial Magistrate. This has not been done.
Another defect which was observed by the High Court is that the CJM has made a Complaint
under Section 182 of the IPC which according to Section 195(1)(a)(i) has to be filed by the
Public Servant concerned or by some other Public Servant to which he is administratively
subordinate.
On the second issue the Court stated that it is well settled that a complaint under Section 195
of the Code must be a regular formal complaint in writing the procedure for which has been
given in Section 340 of the Code. If no proper complaint has been filed the conviction will
have to be set aside. It is well settled that a regular complaint petition as required by law should
be filed under Section 195 of the Code. A Court has judicial discretion to file complaint but
that judicial discretion has to be exercised keeping in mind all the relevant circumstances. Court
must be satisfied that there is prima case of deliberate falsehood on a matter of substance and
there is reasonable foundation for the charge and also it is expedient in the interest of justice to
file a complaint.
10. From this it would appear that before lodging a complaint as provided by Section 340 of
the Code, the court has to record a finding of any (i) prima facie case and deliberate falsehood
on a matter of substance (ii) there is reasonable foundation for the charge and (iii) it is
expedient in the interest of justice that a complaint should be filed.
The High Court set aside the Conviction of the Appellant under Section 193, 182 and 211 on
above-mentioned grounds. Appellant was thus acquitted.
P a g e | 10
RELEVANT FACTS
Appellant no. 1 & 2 were real brothers of one Mukhtar Singh and the Respondent no.
1 & 2 are his widow and son respectively.
Appellants had filed a probate petition against the will allegedly executed by the
Mukhtar Singh Marwah.
Said petition was contested by the respondents on the ground that the appellants have
forged the will. Pursuant to this, the appellant no. 1 filed the original will in the Court.
Respondents moved an application under Section 340 Cr.P.C. requesting the Court to
file a criminal complaint against appellant no.1 as the will set up by him was forged.
Before the said application under Section 340 could be disposed, the respondents filed
criminal complaint against appellants under Sections 192, 193, 463, 464, 465, 467, 469,
471, 499 and 500 IPC on the ground that the will of Mukhtar Singh Marwah set up by
the appellants is a forged and fictitious document.
The said complaint was dismissed by the Metropolitan Magistrate stating that Court
could not take cognizance of the said offence in view of bar laid under Section
195(1)(b). The decision was reversed in the revision and the High Court also upheld
the view taken by the Additional Sessions Judge in revision.
Hence, the appellants filed the present Special Leave to Appeal.
ISSUE
The principle question is of interpretation of the expression 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 occurring in clause (b)(ii) of sub-section (1) of Section
195 Cr.P.C.
18
Iqbal Singh Marwah v. Minakshi Marwah, (2005) 4 SCC 370.
P a g e | 11
OBSERVATIONS
Section 195(1)(b)(ii) is capable of two interpretations. One is when the alleged offence under
this section is alleged to be committed in relation to a document which is subsequently
produced or is given in a proceeding in any Court, a complaint by the Court would be necessary.
The other possible interpretation is that once the document has been produced or given in
evidence, thereafter an offence as described is committed in respect thereof, a complaint by the
Court would be necessary.
The Supreme Court noted that if the first interpretation is given to Section 195(1)(b)(ii), it may
be subjected to misuse. As observed by the Supreme Court:
20. after preparing a forged document or committing an act of forgery, a person may
manage to get a proceeding instituted in any civil, criminal or revenue court, either by himself
or through someone set up by him and simply file the document in the said proceeding. He
would thus be protected from prosecution, either at the instance of a private party or the police
until the Court, where the document has been filed, itself chooses to file a complaint. The
litigation may be a prolonged one due to which the actual trial of such a person may be delayed
indefinitely. Such an interpretation would he highly detrimental to the interest of society at
large. It was further observed that:
23. That apart, the section which we are required to interpret is not a penal provision but is
part of a procedural law which elaborately gives the procedure for trial of criminal cases. The
provision only creates a bar against taking cognizance of an offence in certain specified
situations except upon complaint by Court. A penal statute is one upon which an action for
penalties can be brought by a public officer or by a person aggrievedThe principle that a
penal statute should be strictly construed, as projected by the learned counsel for the appellants
can, therefore, have no application here.
In the present case, the will had been produced subsequently. It was nobodys case that any
offence as enumerated in Section 195(b)(ii) was committed in respect to the said will after it
had been produced or filed in the Court of District Judge. Therefore, the bar created by Section
195(1)(b)(ii) Cr.P.C. would not come into play and there is no embargo on the power of the
Court to take cognizance of the offence on the basis of the complaint filed by the respondents.
P a g e | 12
RELEVANT FACTS
Present case is brought before the High Court by way of Writ Petition.
Respondent no. 3 produced a will before the Registrar for its registration. He also
produced a letter which is said to have been issued by the consulate at Jeddah in Saudi
Arabia.
Petitioner alleged said letter to be forged and thus filed an application under Section
340 of the Code of Criminal Procedure before the Registrar for taking appropriate
action.
ISSUE
Whether a Registrar while discharging functions under Sections 40/41 of the
Registration Act would be a Civil, Revenue or Criminal Court or a tribunal as defined
in sub-section (3) of Section 195 of 1973 Cr.P.C?
(a)
(2), (3)
(4) In this section, Court has the same meaning as in section 195.
Section 195 (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.
19
Masood Pravej v. State of U.P. and ors, MANU/UP/1065/2016.
P a g e | 13
20
Keshab Narayan Banerjee and others v. State of Bihar, (2000) 1 SCC 607
P a g e | 14
The Court finally held that though the Chapter XIV of the Registration Act, 1908 provides
Registrar to impose penalties, still it cannot be treated as Court under Section 195(3) of the
Code. The definition of Court under sub-section (3) of Section 195 of 1973 Cr.P.C. is an
exhaustive definition and does not admit of any enlargement. Thus, the Petition was dismissed.
CONCLUSION
From the above study, it is concluded that before analyzing whether bar under Section 195
would operate or not, careful regard has to be given to the facts and circumstances of the
particular case. It has to be decided keeping in mind the object of the provision i.e. to prevent
vengeance on part of the private persons. Further, it can be said that sanction of the Court is
required in only those cases which cause misadministration in justice. Thus, even if an offence
has been committed in a proceeding in any Court, it would not come within the purview of this
section until it falls under any of the three categories mentioned under this section.
P a g e | 15
BIBLIOGRAPHY
N. D. Basu, Commentary on CrPC, 10th Edn, vol. 1, Ashoka Law House, New Delhi.
Ratanlal & Dhirajlal, The Code of Criminal Procedure, 21st Edn., Lexis Nexis (2014).
41st Law Commission Report, vol.1, 1969.
https://indiankanoon.org/.
http://www.manupatrafast.in/pers/Personalized.aspx.