IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 Coram: THE HONOURABLE MR.JUSTICE K.N.BASHA CRL.RC.No.233/2011 1.V.Lawrence 2.A.Mahendran .. Petitioners -Vs- The State represented by The Inspector of Police Pollachi East Police Station Coimbatore District. .. Respondent (Cr.No.392 of 2002) Revision filed under Sections 397 read with 401 Cr.P.C., to set aside the judgment in CC.No.453/2002 by the learned Judicial Magistrate No.1, Pollachi by an order dated 16.12.2002 on the file of the learned Judicial Magistrate No.1, Pollachi. For Petitioners : Mr.P.Saravanan For Respondent : Mr.V.R.Balasubramaniam,APP O R D E R 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 under Section.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. 2.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 under Section 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]. https://hcservices.ecourts.gov.in/hcservices/ 3.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 r/w 109 IPC as against A1 and under Section 205 IPC as against A2. Both the accused have been furnished the copies as per the provision under Section.207 Cr.P.C. 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. 4.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 under Section 195[1][b][i] Cr.P.C., the learned Magistrate ought to have followed the procedure contemplated under Section 340 Cr.P.C. It is pointed out that as per Section 195[1][b][i] Cr.P.C., the offence under Section 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 under Section 205 IPC and such being the position, the procedure to be adopted is only as contemplated under Section 340 Cr.P.C. It is further contended that as per the provision under Section.340[3][b] Cr.P.C., 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 under Section 340(3)(b) of Cr.P.C. 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 https://hcservices.ecourts.gov.in/hcservices/ in respect of the pending proceedings and as such, Section 195 (1)(b) (i) and 340 of Cr.P.C., 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 r/w 109 IPC against A1 and under Section 205 IPC against A2 and the said offences are included under Section 195(1)(b)(i) of Cr.P.C. It is submitted that in view of the above said illegality, the entire proceedings is vitiated. 5. 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 SARDUT SINGH Vs. STATE OF HARYANA reported in 1992 Crl.L.J. 354. 6.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 r/w 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 under Section 195[1][b][i] Cr.P.C. 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 under Section 195[1][b] [i] Cr.P.C., and Section 340 Cr.P.C., would vitiate the entire proceedings. 7. 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. 8. 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 r/w 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 r/w 109 IPC against A1 and under Section 205 IPC against A2. In view of the https://hcservices.ecourts.gov.in/hcservices/ specific allegation contained in the complaint constituting the offence under Section 205 IPC, in respect of the pending proceedings before the Magistrate Court, the investigation by the respondent police is barred as per the provision under Section 195 [1][b][i] of Cr.P.C. The procedure contemplated under Sections 195 and 340 Cr.P.C. 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 Cr.P.C. 9.1. Section 195[1][b][i] [iii] of Cr.P.C., reads as hereunder:- "195.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 under Section 205 IPC is included as per the provision under Section 195[1][b][i] of Cr.P.C., 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 under Section 340 Cr.P.C. in respect of the provisions as to offences affecting the administration of justice which reads as hereunder:- https://hcservices.ecourts.gov.in/hcservices/ "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 ; .... [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 Cr.P.C., 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 Cr.P.C., 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. 10. 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 under Section 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 https://hcservices.ecourts.gov.in/hcservices/ procedure contemplated under Section 340[3][b] Cr.P.C. 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] Cr.P.C., 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. 11. 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 Cr.P.C. Therefore, this court is of the considered view that even taking cognizance in the instant case is also vitiated by the above said illegality. 12. 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 reported in 1992 Crl. L. J. 354 wherein the Punjab & Haryana High Court, in a similar case, has held as here under:- "................ 6.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. https://hcservices.ecourts.gov.in/hcservices/ 7.A Full Bench of this court comprising of three Judges in Harbans Singh V. State, AIR 1987 Punjab and Haryana 19: [1986 Crl. L. J. 1834] after elaborate discussion had held that the bar enacted in S.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 Vs. 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 S.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/Ss.467, 468 and 471 are overlapping each other and form part of the same transaction. Thus, by necessary implication, the provisions of S.195[1] [b][ii] would be applicable to these offences also. 8.The matter does not rest here as the provisions of S.340 Cr.P.C., prescribing procedure in cases mentioned in S.195 Cr.P.C. 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 despatch 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 S.195 coupled with the procedure prescribed in S.340 C.P.C., absolutely leave no doubt https://hcservices.ecourts.gov.in/hcservices/ 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 S.340 of the Criminal Procedure Code." 13. It is relevant to refer a Division Bench decision of Orissa High Court in Laxminarayan Deepak Ranjan Das Vs. K.K.Jha reported in 1999 CRI.L.J. 4200, in respect of scope of the provision under Sections 340 and 195 Cr.P.C. The Division Bench in the said decision held as hereunder : "3. 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 476-A 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) .... https://hcservices.ecourts.gov.in/hcservices/ (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. 4. 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 under Section 195 when it is not so open under Section 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." 14. 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 Cr.P.C. 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 https://hcservices.ecourts.gov.in/hcservices/ the order of the Court. 15. At this juncture, it is relevant to note that as per Section 340 Cr.P.C., 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. 16. 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C. is not a mere irregularity, but a serious illegality vitiating the entire proceedings right from the registration of the