S.

195 r/w 340 Bar to Cognizance of Offences by the Magistrate

A brief Note before you proceed to article:
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts.,
including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR,
deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders
of the Courts / Tribunals, among others, may see following link https://vakeelkanumber.com/natureofgrievance.php
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the
procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are
facing any frivolous litigation, may see following link https://vakeelkanumber.com/legalproceeding.php
Thank you.

Proceed to article

DRAFTING / INSTITUTION OF APPLICATION U/S 340 R/W195 OF CRPC, 1973

http://thepracticeoflawjalan.blogspot.in/2012/04/objective-approach-to-any-litigation.html

Ordinarily, anyone may set in motion the criminal law, either in writing or orally, either by a complaint before the Police or before the Magistrates court. However,
owing to the character of certain offences under the Indian Penal Code as affecting the Public, or particular persons only, the legislature, in its wisdom, has restricted
this right in respect of certain offences, more particularly enumerated in section 195 of CrPC, 1973, and the concerned Public servants or the concerned courts can
only take cognizance of the offences therein mentioned.

The court making the complaint has to be satisfied that it appears that an offence under clause (b) of sub-section (1) of section 195 of the code has been committed and
that it is expedient in the interests of justice that an Inquiry should be made into that offence.

As observed in a Madras High Court case – “this salutary rule is founded on common sense. The dignity and prestige of Courts of law must be upheld by their
presiding officers, and the courts would never leave it to the parties aggrieved to adopt such proceedings to settle personal revenge. Ramaswamy versus P Mudaliar –
AIR 1938 Mad 173, p.174.

Section 195 of CrPC, 1973, bars the cognizance of certain offences by Magistrates, like the contempt of lawful authority of public servants, offences against public
justice and offences relating to documents given in evidence. These offences may be taken cognizance of, only on the complaint in writing of the public servant
concerned or of some other public servant to whom he is administratively subordinate; OR on the complaint in writing of that Court or by such officer of the Court as
that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate.

And, Section 340 of CrPC, 1973, provides a mechanism to initiate for offences under those sections set out in Section 195 of CrpC, 1973. For better understanding of
the nature of this Application, the contents of both these sections 340 and 195 is reproduced.

Section 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, 1860 (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, 1860 (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 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.

SECTION 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 for 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;
141
[(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.

Application under this Section 340 may be taken out in any Court, Civil, Criminal or Revenue Courts, or in a Statutory Tribunal, which is declared as a Court by that
Act to be a Court for the purposes of Section 195. [Section 195(3)]

The Application may be taken in the form of a Notice of Motion / Misc. Application, duly verified by the Applicant. No particular form appears to have been
prescribed for this Application.

A broad approach to drafting of any case may be undertaken in three chronological “Heads” –
1. Reliefs prayed for / claimed;
2. Grounds for Reliefs prayed for / claimed; (both factual and legal);
3. Narration of facts substantiating the said grounds.
4. Further, there may be narration of such facts in the beginning of the draft, which would lay foundation for “material facts of the case”.

Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts; and (b) other legal provisions which supports the reliefs prayed for /
claimed.
The Prayers in this Application may be –
a) To initiate Inquiry by the concerned Court; and
b) Thereafter may pleased to make a complaint in writing; and send it to a Magistrate of the first class having jurisdiction;
c) And take sufficient security for the appearance for 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.

STEPS AFTER INSTITUTION OF APPLICATION

Will be added in some time.

When a false charge is made to the Police and not to a court, no sanction u/s 195(b)(i) is needed.
Bakshi versus Crown – AIR 1924 All 187;
Dujai versus State – (1962) 1 CrLJ 627.

False Information

Daulat Ram versus State of Punjab AIR 1962 SC 1206.

Section 340 prescribe the procedure to adopt proceedings in respect of offences barred under Section 195. The section provides that there is no necessity for
issuance of notice or opportunity of hearing to the party against whom the said proceedings are intended to be initiated – AIR 2002 SC 236;

Sections 340, 195 r/w Sections 192, 193 of IPC – (2011) 12 SCC 640

Sections 211 and 500 of IPC r/w Sections 340 and 195 CrPC – (2011) 10 SCC 696 – Paras 23 to 26

Sections 195, 340 – Iqbal Singh Narang versus Veeran Narang – AIR 2012 SC 466 – Private complaint maintainable before competent magistrates court if false
evidence were tendered before quasi judicial authorities – also – AIR 2010 SC 3791 – AIR 2003 SC 4591 – Ishwarchand Gupta versus Chandershekhar – [(2001) 1
RCR Criminal 171]

Section 195 – tendering of false evidence – AIR 2012 SC 466 – Para 14.

BAR UNDER SECTION 195 OF CRPC

State of UP versus Mata Bhikh – 1994 SCC (Cri) 831 (834).
Maniklal Bhagat versus State – 1982 CrLJ 1473 (Cal)
Binapani Ghosh versus State – 1983 (2) Crimes 901, 903 (Cal) (DB).
Phoolchand Jan versus State – 1987 (1) Crimes 567 (Del).

Section 340 CrPC

N Natarajan vs B K Subbarao AIR 2003 SC 541
St of AP vs V Sarma Rao & Ors Etc AIR 2007 SC 137
(2007) 12 SCC 611
AIR 1945 P 362
2008 CrLJ 4532 (4536) (Ori)
2004 CrLJ 822 (SC)
2006 CrLJ 3541 (3545) (Ker)
(2005) 4 SCC 370
AIR 2002 SC 236
2003 CrLJ 4094
AIR 1973 SC 2190

CrPC Section 195 read with Section 340 read with Section 195 IPC – (2012) 5 SCC 536, Para 10 *****

Sanction for prosecution –

AIR 2012 SC 1185(J) – 18, 52, 37, 26, 35, 27, 31, 19, 40, 43, 33, 34, 36, 39, 45, 54, 55, 56

CrPC Section 195(1)(b)(i) read with Section 199 of IPC does not create bar to file complaint u/s 200 or to file application u/s 156(3) before competent magistrates
court.

Section 195(3) – Tribunals are Courts only when declared by the Statute.

Legal Prescriptions (Index)

http://thepracticeoflawjalan.blogspot.in/2012/04/legal-options.html

Sentence of Caution
http://thepracticeoflawjalan.blogspot.in/2012/11/sentence-of-caution.html

http://legaldraftsjalan.blogspot.in/2015/02/drafting-institution-of-application-us.html

AIR 2002 SC 236

Para 7: Shri V.A. Mohta, learned senior counsel for the appellant contended that the basic principle of natural justice is violated when the reference court ordered
prosecution against the appellant without affording him an opportunity of being heard. In elaborating the said point learned senior counsel submitted that the scheme
of Sections 340 to 344 of the Code contains an in-built safety for the persons sought to be proceeded against, by obliging the court to afford an opportunity of being
heard to them.

Para 8: Chapter XXVI of the Code contains provisions "as to offences affecting the administration of justice". Among the 12 sections subsumed therein we need
consider only three. Section 340 consists of four sub-sections of which only the first sub-sec. is relevant for the purpose of this case. Hence the said sub-sec. is
extracted below:

"When upon an application made to it in this behalf or otherwise, any court is of opinion that it is expedient in the interest of justice that an inquiry should be made
into any offence referred to in clause (b) of sub-sec. (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."

Para 9: Reading of the sub-sec. makes it clear that the hub of this provision is formation of an opinion by the court (before which proceedings were to be held) that it
is expedient in the interest of justice that an inquiry should be made into an offence which appears to have been committed. In order to form such opinion the court is
empowered to hold a preliminary inquiry. It is not peremptory that such preliminary inquiry should be held. Even without such preliminary inquiry the court can form
such an opinion when it appears to the court that an offence has been committed in relation to a proceeding in that court. It is important to notice that even when the
court forms such an opinion it is not mandatory that the court should make a complaint. This sub-sec. has conferred a power on the court to do so. It does not mean
that the court should, as a matter of course, make a complaint. But once the court decides to do so, then the court should make a finding to the effect that on the fact
situation it is expedient in the interest of justice that the offence should further be probed into. If the court finds it necessary to conduct a preliminary inquiry to reach
such a finding it is always open to the court to do so, though absence of any such preliminary inquiry would not vitiate a finding reached by the court regarding its
opinion. It should again be remembered that the preliminary inquiry contemplated in the sub-sec. is not for finding whether any particular person is guilty or not. Far
from that, the purpose of preliminary inquiry, even if the court opts to conduct it, is only to decide whether it is expedient in the interest of justice to inquire into the
offence which appears to have been committed.

Para 10: "Inquiry" is defined in Section 2(g) of the Code as "every inquiry, other than a trial, conducted under this Code by a magistrate or court." It refers to the pre
trial inquiry, and in the present context it means the inquiry to be conducted by the magistrate. Once the court which forms an opinion, whether it is after conducting
the preliminary inquiry or not, that it is expedient in the interest of justice that an inquiry should be made into any offence the said court has to make a complaint in
writing to the magistrate of first class concerned. As the offences involved are all falling within the purview of "warrant case" [as defined in Sec. 2 (x)] of the Code the
magistrate concerned has to follow the procedure prescribed in Chapter XIX of the Code. In this context we may point out that Section 343 of the Code specifies that
the magistrate to whom the complaint is made under Section 340 shall proceed to deal with the case as if it were instituted on a police report, That being the position,
the magistrate on receiving the complaint shall proceed under Section 238 to Section 243 of the Code.

Para 11: Section 238 of the Code says that the magistrate shall at the outset satisfy that copies of all the relevant documents have been supplied to the accused.
Section 239 enjoins on the magistrate to consider the complaint and the documents sent with it. He may also make such examination of the accused, as he thinks
necessary. Then the magistrate has to hear both the prosecution and the accused to consider whether the allegations against the accused are groundless. If he finds the
allegations to be groundless he has to discharge the accused at that stage by recording his reasons thereof. Section 240 of the Code says that if the magistrate is of
opinion, in the aforesaid inquiry, that there is ground for presuming that the accused has committed the offence he has to frame a charge in writing against the accused.
Such charge shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or not. If he pleads not guilty then
the magistrate has to proceed to conduct the trial. Until then the inquiry continues before the magistrate.

Para 12: Thus, the person against whom the complaint is made has a legal right to be heard whether he should be tried for the offence or not, but such a legal right is
envisaged only when the magistrate calls the accused to appear before him. The person concerned has then the right to participate in the pre-trial inquiry envisaged in
Section 239 of the Code. It is open to him to satisfy the magistrate that the allegations against him are groundless and that he is entitled to be discharged.

Para 13: The scheme delineated above would clearly show that there is no statutory requirement to afford an opportunity of hearing to the persons against whom that
court might file a complaint before the magistrate for initiating prosecution proceedings. Learned counsel for the appellant contended that even if there is no specific
statutory provision for affording such an opportunity during the preliminary inquiry stage, the fact that an appeal is provided in Section 341 of the Code, to any person
aggrieved by the order, is indicative of his right to participate in such preliminary inquiry.

Para 14: Section 341 of the Code confers a power on the party on whose application the court has decided or not decided to make a comp laint, as well as the party
against whom it is decided to make such complaint, to file an appeal to the court to which the former court is subordinate. But the mere fact that such an appeal is
provided, it is not a premise for concluding that the court is under a legal obligation to afford an opportunity (to the persons against whom the complaint would be
made) to be heard prior to making the complaint. There are other provisions in the Code for reaching conclusions whether a person should be arrayed as accused in
criminal proceedings or not, but in most of those proceedings there is no legal obligation cast on the court or the authorities concerned, to afford an opportunity of
hearing to the would be accused. In any event appellant has already availed of the opportunity of the provisions of section 341 of the Code by filing the appeal before
the High Court as stated earlier.

Para 15: Once the prosecution proceedings commence the person against whom the accusation is made has a legal right to be heard. Such a legal protection is
incorporated in the scheme of the Code. Principles of natural justice would not be hampered by not hearing the person concerned at the stage of deciding whether such
person should be proceeded against or not.

Para 16: Be it noted that the court at the stage envisaged in Section 340 of the Code is not deciding the guilt or innocence of the party against whom proceedings are
to be taken before the magistrate. At that stage the court only considers whether it is expedient in the interest of justice that an inquiry should be made into any offence
affecting administration of justice. In M.S. Sheriff and anr. V/s. State of Madras and ors. a Constitution Bench of this Court cautioned that no expression on the guilt
or innocence of the persons should be made by the court while passing an order under Section 340 of the Code. An exercise of the court at that stage is not for finding
whether any offence was committed or who committed the same. The scope is confined to see whether the court could then decide on the materials available that the
matter requires inquiry by a criminal court and that it is expedient in the interest of justice to have it inquired into