The Supreme Court of India on the 26th of February 2020 passed as an order which raises considerable doubts. The case is in relation to section 420, 467, 468 and 471 of the Indian penal code 1860 with allegations that the accused had forged and fabricated documents in the course of the legal proceedings before the revenue court in connivance with the officials. For the purpose of brevity, I do not wish to elaborate on the factual aspect of the case, except that the with the above allegations, a FIR came to be registered at the instance of the Sub-Divisional Magistrate, which culminated into a charge-sheet.
Proceedings at High Court: The matter went to the Punjab and Haryana High Court, at the instance of the accused, which quashed the proceeding on the ground that the Deputy Commissioner-cum-Chief Sales Commissioner had neither held an inquiry nor had he directed the subordinate authority to hold any such inquiry against the accused, in terms of Section 340 read with Section 195 of the CrPC. Thus, the FIR was hit by non-compliance of these two provisions and therefore quashed.
Relevant Provisions: For the purpose of convenience, the provisions are extracted hereunder:
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 (45 of 1860), or
(ii) of any abetment of, or 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 (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 1[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:
(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.
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 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.
Proceedings at the Supreme Court: The State had come on appeal against the said decision of the High Court on the primary ground that it is not mandatory on the part of the Court to make a preliminary inquiry under Section 340 before filing a complaint under Section 195; the Court is not required to afford an opportunity of hearing to the person against whom a complaint is filed before the Magistrate for initiating prosecution proceedings; and that Section 340 does not indicate that such person has any right to participate in the preliminary inquiry. The counsel for the accused supported the decision of the High Court.
In Para 10 of the decision, it was stated: “10. In the instant case, it is not in dispute that the Deputy Commissioner-cum-Chief Sales Commissioner, as well as the Sales Commissioner, Patti were discharging their duties as Revenue Courts. It is further not in dispute that the criminal proceedings instituted against the Respondent fell within the scope of Section 195(1)(b)(ii), as they pertained to offences under Sections 420, 467, 468 and 471 of the IPC. Essentially then, the controversy pertains to compliance with Section 340 of the CrPC, which lays down the procedure to be followed while making a complaint with respect to an offence as mentioned in Section 195.”
The Supreme Court then proceeded to view the various decisions whether the preliminary inquiry of the accused is a must for initiating proceedings under Section 340 Cr.P.C. In the case of Pritish v. State of Maharashtra, (2002) 1 SCC 253, decided by a three-Judge Bench of this Court, and of a two-Judge Bench in Amarsang Nathaji v. Hardik Harshadbhai Patel, (2017) 1 SCC 113, the opinion of the Apex Court was that it is open for the Court to conduct (or not to conduct) a preliminary inquiry into the matter before lodging a complaint in respect of an offence mentioned in Section 195(1)(b). However, in a subsequent decision in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, a three-Judge Bench of the Apex Court held that the preliminary enquiry as contemplated under Section 340 CrPC is mandatory and the accused must also be heard. For these reasons, the matter was referred to a larger bench.
Opinion: The Supreme Court lost sight of one important aspect in the case on hand. Under Section 195 Cr.P.C., the provision starts with a negative covenant that “No Court shall take cognizance” and ends with “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.” The words “or by such officer of the Court as that Court may authorise in writing in this behalf” had been incorporated by way of an amendment in the year 2006. Thus, it is clear that the complaint must be a private complaint the complainant must be a court. No charge sheet under Section 173(2) can be filed where there is a specific bar under Section 195.
It may releavant to look into the decision of the Apex court in State of Punjab v. Raj Singh, (1998) 2 SCC 391 : 1998 SCC (Cri) 642 at page 391:
State of Punjab v. Raj Singh, (1998) 2 SCC 391 : 1998 SCC (Cri) 642 at page 391
2. We are unable to sustain the impugned order of the High Court quashing the FIR lodged against the respondents alleging commission of offences under Sections 419, 420, 467 and 468 IPC by them in course of the proceeding of a civil suit, on the ground that Section 195(1)(b)(ii) CrPC prohibited entertainment of and investigation into the same by the police. From a plain reading of Section 195 CrPC it is manifest that it comes into operation at the stage when the court intends to take cognizance of an offence under Section 190(1) CrPC; and it has nothing to do with the statutory power of the police to investigate into an FIR which discloses a cognizable offence, in accordance with Chapter XII of the Code even if the offence is alleged to have been committed in, or in relation to, any proceeding in court. In other words, the statutory power of the police to investigate under the Code is not in any way controlled or circumscribed by Section 195 CrPC. It is of course true that upon the charge-sheet (challan), if any, filed on completion of the investigation into such an offence the court would not be competent to take cognizance thereof in view of the embargo of Section 195(1)(b) CrPC, but nothing therein deters the court from filing a complaint for the offence on the basis of the FIR (filed by the aggrieved private party) and the materials collected during investigation, provided it forms the requisite opinion and follows the procedure laid down in Section 340 CrPC. The judgment of this Court in Gopalakrishna Menon v. D. Raja Reddy [(1983) 4 SCC 240 : 1983 SCC (Cri) 822 : AIR 1983 SC 1053] on which the High Court relied, has no manner of application to the facts of the instant case for there cognizance was taken on a private complaint even though the offence of forgery was committed in respect of a money receipt produced in the civil court and hence it was held that the court could not take cognizance on such a complaint in view of Section 195 CrPC.
In the above decision, it was held that the FIR may be filed for the purpose of investigation into the offence, however, no charge-sheet may be filed. The complaint for offences covered under Section 195 Cr.P.C can be filed by the appropriate court or the public servant concerned. Thus, in the case on hand, the chargesheet ought to be quashed either way. However, this issue was neither raised in the High Court or in the Apex Court.