The legal conundrum to be resolved in this case is whether on an application for initiating action under section 340 of the Code of Criminal Procedure (for short 'Cr.P.C') in relation to an offence punishable under section 205 of the Indian Penal Code allegedly committed in, or in relation to, any proceeding in any court a Magistrate could order for an investigation under section 156(3) Cr.P.C? If the answer is in the negative, then the question is in what manner a final report filed after the investigation of a crime registered pursuant to the receipt such an order under section 156 (3), Cr.P.C has to be dealt with? The said questions arise for consideration in the conspectus of the following facts and legal provisions:- Indisputably, a competent court could initiate proceedings under section 340 of the Code of Criminal Procedure for the offences mentioned in section 195 Cr.P.C and at the same time section 340 Cr.P.C. which is intended to be complimentary to section 195 Cr.P.C. creates a bar on complaint by anybody other than the court concerned. The petitioner filed Annexure-II application viz., Crl.M.P.No.2355/2007 with a prayer to conduct an enquiry as contemplated under section 340 Cr.P.C, before the Court of the Judicial First Class Magistrate, Muvattupuzha. It is apposite to refer to the contentions of the petitioner regarding the circumstances that constrained him to file the same. The second respondent herein was booked for the offences under sections 184 and 185 of the Motor Vehicles Act based on an allegation of drunken driving. He was arrested by the police and according to the petitioner upon his arrest he impersonated the petitioner and introduced himself and revealed his identity as that of the petitioner and thereby caused implication of the petitioner as the second accused in S.T.No.2689/2004. Thereafter, he managed to obtain the summons issued in the name of the petitioner and appeared before the court. In the summary trial of S.T.2689/2004 the particulars of the offences were read out and explained to the second respondent herein treating him as the petitioner herein and thereupon he pleaded not guilty and claimed to be tried. The prosecution evidence was subsequently let in and after its closure the second respondent herein was examined under section 313, Cr.P.C. During the examination under section 313, Cr.P.C he pleaded guilty. Owing to the subsequent absence of the second respondent in court, warrant was issued. Later, the 7th respondent herein (who is no more) who was appearing for the second respondent herein in S.T.No.2689/2004 issued a letter in the address of the second accused in S.T.No.2689/2004. In view of the impersonation allegedly committed by the second petitioner that letter reached petitioner and according to the petitioner he came to know about the impersonation and the consequential proceedings only on receipt of Annexure-I letter. It is the further case of the petitioner that soon thereafter, he rushed to the 7th respondent and divulged the actual facts to him and consequently the 7th respondent relinquished the vakalath of the second respondent. Immediately, the petitioner filed Annexure-II viz., Crl.M.P.No.2355/2007 before the learned magistrate stating that the accused therein impersonated him and therefore, appropriate action shall be initiated against the person who committed that offence, in accordance with law. While that application was pending before the court S.T.No.2689/2004 was posted and the petitioner found the second respondent herein before the court during the roll call session and thereafter he disappeared from there. Subsequently, on Annexure II treating it as a complaint the learned magistrate forwarded the same for investigation under section 156(3) Cr.P.C. On receipt of the Anexure II for investigation crime No.1392/2007 was registered at Muvattupuzha police station for offeces punishable under section 205 r/w section 34 of the Indian Penal Code against the second respondent and the 7th respondent. After completing the investigation Annexure III final report was filed before the Judicial First Class Magistrate Court, Muvattupuzha. The captioned criminal miscellaneous case has been filed in the circumstances by the petitioner contending that no cognizance could be taken on Annexure III by the learned Magistrate in view of the bar under section 195 (1) (b)(i), Cr.P.C and seeking a direction to the court of Judicial First Class Magistrate, Muvattupuzha to conduct an enquiry under section 340 Cr.P.C and file a complaint against the accused. It is to be noted that in the final report filed in Crime No.1392/2007 of Muvattupuzha police station the second respondent was made as an accused for committing an offence under section 205, IPC. The contention of the petitioner is that in the light of the provisions under section 191 and 195 (1)(b)(i) Cr.P.C no court could take cognizance on a complaint for an offence under section 205, IPC allegedly committed in, or in relation to, any proceeding in any court except on a complaint in writing of that court or by such officer of the Court as that Court may or such officer of that Court may authorise in writing on that behalf. The captioned criminal miscellaneous case has been filed originally only with the state as the respondent. Based on the order of this Court on 19.8.2011 in Crl.M.A.No.5354/2011 respondent 2 to 7 were impleaded as additional respondents. Despite the service of notice respondents 3 to 5 and 7 have not chosen to enter appearance.
2. I have heard the learned counsel on both sides as also the learned Public Prosecutor.
3. As noticed hereinbefore, the case of the petitioner is that the second respondent herein while being booked for the offences under sections 184 and 185 of the Motor Vehicles Act and at the time of his arrest in connection with the said offence misguided the police by impersonating himself as the petitioner. It is the further allegation that subsequently he managed to obtain the summons and thereafter appeared before the court and participated in the trial personating himself as the person by name Biju (the petitioner herein) and pleaded not guilty and thereafter during the examination under section 313, Cr.P.C. pleaded guilty. The fact that the second respondent pleaded guilty was not within the knowledge of the petitioner at that time of filing Annexure II and at the time his complaint the position in S.T.No.2689/2004 was that by impersonation and the subsequent abscondence after pleading guilty the second respondent caused issuance of a warrant against the petitioner herein. It was that incident which was sought to be enquired into by the petitioner by filing Annexure II application. Going by Rule 66 of the Criminal Rules of Practice every application under section 340 of the Code of Criminal Procedure shall be registered as a Criminal Miscellaneous Petition. As stated earlier, the learned magistrate forwarded the application for enquiry under section 156(3) Cr.P.C and thereafter Crime No. 1392/2007 was registered at Muvattupuzha police station. After investigation Annexure III final report was laid charging the petitioner for the offence under section 205, IPC.
4. In the contextual situation it is only apposite to refer to sections 195, 340 Cr.P.C. and section 205, IPC. Section 195 Cr.P.C.
in so far as it is relevant to the case on hand, reads thus:-
“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-
xxxxx (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 proceedings in any Court, or xxxxx [except on the complaint in writing of that Court 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]”
Section 340 Cr.P.C. reads thus:-
“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 interest of justice that an enquiry should be made into any offence referred to in clause (b) 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;
(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.”
Section 205 IPC read thus:-
“205, False personation for purpose of act or proceeding in suit or prosecution.- Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
5. A perusal of section 195, Cr.P.C would reveal that in respect of offences included thereunder the Court concerned or such officer of that Court authorised in writing in that behalf alone could file a complaint and cognizance could be taken by the competent court only on such a complaint. A perusal of the aforesaid section would reveal that section 205, IPC is an offence included thereunder. As noticed hereinbefore, section 340, Cr.P.C is intended to be complimentary to section 195, Cr.P.C. Indisputably, a competent court could initiate proceedings under section 340 of the Code of Criminal Procedure for the offences mentioned in section 195, Cr.P.C and at the same time section 340, IPC creates a bar on complaint by anybody other than the court concerned. Though, the petitioner had not specifically alleged in Annexure II that the second respondent herein has committed an offence under section 205, IPC his allegation is one of commission of that offence and that fact is very much discernible from Annexure II itself. There is no mandate that in a complaint the complainant should specifically state the relevant provision regarding the offence. What is bound to be set out in a complaint is only the set of facts constituting the offence. Evidently, Annexure II contained such allegations necessary to constitute an offence and a bare reading of the same would suggest that the allegation therein is one of impersonation rather, that the second respondent had falsely personated him before that court as well and then pleaded guilty and then remaining as an abscondee. Such an allegation would only constitute an offence under section 205, IPC. When that be the position the question is that whether in view of the bar under section 195 (1)(b)(i) Cr.P.C the learned magistrate could have forwarded Annexure II application for investigation under section 156(3) Cr.P.C instead of following the procedures contemplated under section 340, Cr.P.C. to ascertain whether in the interest of administrative justice conduct of a preliminary enquiry to arrive at the conclusion whether making of the complaint is expedient in the interest of justice.
6. The Hon'ble Apex Court had occasion to consider the question whether section 195 and 340 of Cr.P.C would affect the power of the police to investigate to a cognizable offence in the decision in State of Punjab v. Raj Singh [1998(2)SCC 391]. It was held by the Hon'ble Apex Court that the power of the police to investigate into a cognizable offence is not controlled by section 195, Cr.P.C. However, it was further held that a court is not competent to take cognizance on a charge sheet filed by the police in respect of any offence covered by section 195 (1)(b)(i) Cr.P.C and which would hit by the bar under section 195 (1)(b)(i), Cr.P.C. Even in such cases, it was found that the court is not debarred from filing a complaint based on the FIR and other materials collected during investigation provided the court also forms the requisite opinion that it is expedient in the interest of justice to give a complaint and follows the procedures laid down in section 340, Cr.P.C. Before lodging a complaint as provided under section 340, Cr.P.C the court concerned has to adopt a very cautious approach and initiation of prosecution proceedings is required only when the court found it is expedient in the interest of justice to do so. In otherwords, before lodging a complaint the court concerned has to record a finding as to the existence of a prima facie case and deliberate falsehood on a matter of substance, reasonable foundation for the charge and above all, as to whether it is expedient in the interest of justice to file a complaint (see the decisions of the Hon'ble Apex Court in Chajoo Ram v Radhey Shyam reported in AIR 1971 SC 1367 and Kapil Corepacks Pvt. Ltd v Harbans Lal reported in AIR 2010 SC 2809).The contention of the petitioner is that the scope of ordering for an investigation is available only in a case where the offence is allegedly committed outside the court and not within the court and it is the precise contention of the petitioner that once the allegation is one of commission of an offence within the court the procedure to be followed is one contemplated under section 340, Cr.P.C. To buttress the said contention the learned counsel relied on a decision of a Constitution Bench of the Hon'ble Apex Court in Iqbal Singh Marwah and another v. Meenakshi Marva and another (AIR 2005 SC 2119). In the said decision the Hon'ble Apex Court held that for attracting section 195(1)(b)(ii), Cr.P.C. offences enumerated in the said section must be committed during the time document was in custodia legis and that section 195, Cr.P.C is not a penal provision. A perusal of Annexure II would reveal that the complaint of the petitioner was not one with respect to the commission of an offence with respect to a document in custodia legis whilst his allegation is one of impersonation which would attract an offence under section 205, IPC. The learned counsel for the party respondents attempted to canvass the position that even going by the allegation of the petitioner the very genesis is outside the court as according to the petitioner the second respondent on his arrest for the commission of offences under sections 184 and 185 of the M.V.Act instead of giving his rightful name falsely personated the petitioner. At the same time, a perusal of Annexure II would reveal that the petitioner specifically alleged that the second respondent appeared before the court in S.T.No2689/2004 and applied and obtained bail with the identity of the petitioner and also participated in trial personating himself as the petitioner. Even thereafter, the second respondent personating himself as the petitioner pleaded guilty during the examination under section 313, Cr.P.C and subsequently he has caused issuance of warrant in the name of the petitioner owing to such impersonation. Therefore, how it can be said that the offence alleged against the second respondent is not one alleged by the petitioner for commission of acts in, or not in relation to any proceeding in any court. Merely because allegedly, there was impersonation at the time of booking the second respondent for the traffic offence cannot and will not, take away the bar in respect of the commission of acts in, or in relation to any proceeding in the court. Certainly, in such circumstances whether in respect of those accusation the bar created by section 195(1) (b) (i), Cr.P.C for taking cognizance otherwise than on a complaint filed in writing in terms of the provisions thereunder, ought to be examined. In such circumstances, on receipt of Annexure II the learned magistrate ought to have considered the question whether the allegations therein if taken on its entirety as true and correct would constitute any offence which is included under section 195(1)(b)(i), Cr.P.C. Needless to say that if it falls under any of the offences mentioned thereunder instead of treating it as a complaint and then forwarding it for an investigation under section 156(3) Cr.P.C a preliminary enquiry as contemplated under section 340, Cr.P.C should have been conducted by the court of the Judicial First Class Magistrate, Muvattupuzha in view of the specific bar under section 195, Cr.P.C. There cannot be any doubt with respect to the position that the bar under section 195, Cr.P.C would attract in respect of an offence under section 205, IPC and also that the allegations in Annexure II if taken on its entirely as true and correct would constitute an offence under section 205, IPC committed in court or committed in relation to any proceeding in a court. If on the application of the petitioner the court of Judicial First Class Magistrate, Muvattupuzha refused to make a complaint under sub-section (1) or sub-section (2) of section 340, Cr.PC it could have been said that the remedy of the revision petitioner is to file an appeal under section 341, Cr.P.C. As noticed hereinbefore, in this case on Annexure-II, though styled as complaint, the court has not refused to make a complaint either under sub-section (1) or sub-section (2) of section 340, Cr.P.C. though the learned magistrate, in the circumstances, ought to have conducted an enquiry as contemplated under section 340, Cr.P.C to decide whether it is expedient in the interest of justice to file a complaint. As stated earlier, instead of doing so, the court forwarded the same for investigation under section 156(3) Cr.P.C. Obviously, pursuant to its receipt Crime No. 1392/2007 of Muvattupuzha police station was registered for offence under section 205 and r/w section 34, IPC. After the investigation Annexure III final report was filed against the second respondent herein for an offence under section 205 IPC. I have already referred to the decision of the Hon'ble Apex Court in State of Punjab v. Raj Singh. In that case, the Apex Court held that though a court is not competent to take cognizance on a charge sheet filed by the police in respect of any offence covered by section 195(1)(b)(i) Cr.P.C the court is not debarred from filing a complaint based on the FIR and other materials collected during investigation in case the court also forms the requisite opinion that it is expedient in the interest of justice to give a complaint and also follows the procedures laid down in section 340, Cr.P.C. Though, the Hon'ble Apex Court laid down the law taking note of the bar under section 195(1)(b)(ii) I am of the view that the same procedures shall have to be followed in the case on hand which falls under section 195(1) (b)(i) Cr.P.C. In the light of the said decision as also in view of the provision of law creating the bar under section 195(1)(b)(i) Cr.P.C. the learned magistrate could not take cognizance on Annexure III for an offence under section 205, IPC. The object and scope of section 195, Cr.P.C is to protect the persons from being needlessly and unnecessarily harassed by disgruntled litigant and the very object is to prevent improper and reckless prosecution by private persons for offences in connection with administration of public justice and those relating to the contempt of lawful authority of public servants. In relation to crimes enumerated in section 195, Cr.P.C the law limits the locus standi by specific provisions such as section 195 Cr.P.C and provided the procedures to be followed in cases mentioned thereunder. In the decision in C.Muniappan v. State of Tamil Nadu reported in AIR 2010 SC 3718 the Hon'ble Apex Court held that the provisions under section 195, Cr.P.C are mandatory and its non-compliance would vitiate the prosecution. It was also made clear that a court could not take cognizance of an offence enumerated under section 195,Cr.P.C and in respect of which the bar thereunder would apply, otherwise on a complaint made in tune with section 340, Cr.P.C and further that in the absence of such a complaint, the trial and conviction would be void ab initio being without jurisdiction. A close scrutiny of the aforesaid provisions would reveal that what is impermissible in law is taking of cognizance of offence enumerated in section 195, Cr.P.C unless there is a complaint in writing filed after following the procedures under section 340, Cr.P.C. True that, in this case, instead of following the procedures to find whether it is expedient to file a complaint the learned magistrate forwarded Annexure II for investigation under section 156(3) Cr.P.C and after registering a crime and completing the investigation now, Annexure III final report was filed before the court. In the circumstances expatiated above and in view of the bar under section 195(1)(b)(i) the Judicial First Class Magistrate Court, Muvattupuzha is not competent to take cognizance under section 205, IPC based on Annexure III final report. However, in view of the discussion made above it is made clear that the court below is not debarred from looking into the FIR and the other materials collected during the investigation in Crime No.1392/2007 while considering Annexure II complaint. In view of the discussion this criminal miscellaneous case is disposed of with a direction to the learned magistrate to conduct enquiry as contemplated under section 340, Cr.P.C. on Annexure II filed by the petitioner to ascertain whether expedient in the interest of justice to file a complaint and that regard it will be open to the court below to look into the FIR and the other materials collected during the investigation in Crime No.1392/2007 of Muvattupuzha Police Station, after complying with the procedures thereunder and subject to its outcome of decision on that question appropriate orders shall be passed or appropriate action shall be taken, in accordance with law.
Subject to the above this Crl.M.C is disposed of.
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C.T.RAVIKUMAR,JUDGE.
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