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TMI Blog2019 (2) TMI 1892X X X X Extracts X X X X X X X X Extracts X X X X ..... tice to take such action. The court shall not only consider prima facie case but also see whether it is in or against public interest to allow a criminal proceeding to be instituted - clauses under Section 195(1)(b) of the Cr.P.C. i.e. sub-section 195(1)(b)(i) and sub section 195(1)(b)(ii) cater to separate offences. Though Section 340 of the Cr.P.C. is a generic section for offences committed under Section 195(1)(b), the same has different and exclusive application to clauses (i) and (ii) of Section 195(1)(b) of the Cr.P.C. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is punishable under Section 193 of the IPC. Therefore, the Magistrate has erred in taking cognizance of the offence on the basis of a private complaint - Thus, High Court has rightly set aside the order of the Magistrate. Appeal disposed off. - Criminal Appeal No. 211 Of 2019 - - - Dated:- 4-2-2019 - A.K. Sikri And S.Abdul Nazeer, JJ. JUDGMENT S.Abdul Nazeer, 1. We have heard the learned counsel for the parties. 2. This appeal is directed against the judgment and order dated 30.03.2017 in Criminal Revision No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the appellant. Alleging non compliance of the said order, the appellant filed a contempt petition before the High Court, which gave rise to MJC No.2912 of 2015. 5. In the petition alleging contempt, it was contended that in the contempt case, the respondents filed a show cause showing compliance of the order dated 29.06.2014, and accordingly, the contempt case was dropped with liberty to the appellant to challenge the order passed in compliance of the court s directive before an appropriate forum. Instead of challenging the said order, the appellant filed a private complaint against respondent Nos. 2 to 4 before the Assistant Chief Judicial Magistrate VII, Motihari alleging commission of offence punishable under Section 193 read with Section 34 of the IPC alleging that because of the false and wrong statement made by the respondents in their show cause affidavit, the High Court dropped the contempt case. The Magistrate by an order dated 22.12.2016 took cognizance of the same and summoned respondent Nos. 2 to 4. 6. The respondent Nos. 2 to 4 challenged the said order of the Magistrate before the High Court. As noticed above, the High Court has allowed the criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either de scription for a term which may extend to three years, and shall also be liable to fine. Explanation 1.-A trial before a Court mar tial is a judicial proceeding. Explanation 2.-An investigation directed by law preliminary to a proceeding before a Court of Justice, is a stage of judicial pro ceeding, though that investigation may not take place before a Court of Justice. Illustration A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to be committed for trial, makes on oath a statement which he knows to be false. As this enquiry is a stage of a judicial proceed ing, A has given false evidence. Explanation 3.-An investigation directed by a Court of Justice according to law, and conducted under the authority of a Court of Justice, is a stage of a judicial proceeding, though that investigation may not take place before a Court of Justice. Illustration A, in an enquiry before an officer deputed by a Court of Justice to ascertain on the spot the boundaries of land, makes on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is 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. (emphasis supplied) 12. It is clear from sub section (1)(b) of Section 195 of the Cr.P.C. that the section deals with two separate set of offences: (i) of any offence punishable under Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228 of IPC, when such offence is alleged to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. Section 340 of Cr.P.C. makes it clear that a prosecution under this Section can be initiated only by the sanction of the court under whose proceedings an offence referred to in Section 195(1)(b) has allegedly been committed. The object of this Section is to ascertain whether any offence affecting administration of justice has been committed in relation to any docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IPC and that the procedure prescribed under Section 195 of the Cr.P.C. are mandatory. It was held that: 5. Chapter XI IPC deals with false evidence and offences against public justice and Section 193 occurring therein provides for punishment for giving or fabricating false evidence in a judicial proceeding. Section 195 of the Criminal Procedure Code (CrPC) provides that where an act amounts to an offence of contempt of the lawful authority of public servants or to an offence against public justice such as giving false evidence under Section 193 IPC etc. or to an offence relating to documents actually used in a court, private prosecutions are barred absolutely and only the court in relation to which the offence was committed may initiate proceedings. Provisions of Section 195 CrPC are mandatory and no court has jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required under that section. It is settled law that every incorrect or false statement does not make it incumbent upon the court to order prosecution, but (sic) to exercise judicial discretion to order prosecution only in the larger interest of the administ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contained in Section 195(1)(b)(ii) of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a court. Accordingly we dismiss this appeal. 22. In Sachida Nand Singh (supra), this Court had dealt with Section 195(1)(b)(ii) of the Cr.P.C unlike the present case which is covered by the preceding clause of the Section. The category of offences which fall under Section 195(1)(b)(i) of the Cr.P.C. refer to the offence of giving false evidence and offences against public justice which is distinctly different from those offences under Section 195(1)(b)(ii) of Cr.P.C, where a dispute could arise whether the offence of forging a document was committed outside the court or when it was in the custody of the court. Hence, this decision has no application to the facts of the present case. 23. The case in hand squarely falls within the category of cases falling under Section 195(1)(b)(i) of the Cr.P.C. as the offence is punishable under Section 193 of the IPC. Therefore, the Magistrate has erred in taking cognizance of the offence on the basis of a private complaint. The High Court, in our view, has rightly set aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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