Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence :
Section- 195. (1) No Court shall take cognizance—
| (a) (i) | Â | of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or |
| (ii) | Â | of any abetment of, or attempt to commit, such offence, or |
| (iii) | Â | of any criminal conspiracy to commit such offence, |
| Â | 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) | Â | 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) | Â | 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) | Â | 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), |
| Â | 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) | Â | 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) | Â | 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. |
COMMENTS
Ambit of section – This section deals with prosecution for three different groups of offences, viz., contempt of lawful authority of public servants, certain offences against public justice and certain offences relating to documents given in evidence. The second and third groups are connected in that, both of them affect the administration of justice. The present section substantially corresponds to old section 195. It has been rearranged from the drafting point of view and some modifications have also been made therein :
Old provision – The present sub-section combines the provisions contained in clauses (b) and (c) of section 195(1) of the old Code. Clause (b) applied when any of the specific offences was committed in, or in relation to, any proceedings in any court and clause (c) applied when the offence of forgery, etc., was alleged to have been committed “by a party to any proceeding” in respect of document produced or given in evidence in such proceeding. In connection with this, the following important points were considered by the Law Commission :
| 1. | Â | Protection to witnesses – An important point that has to be considered here is whether the restriction of the application of the section to a party to the proceeding should be retained. The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the court itself to uphold its dignity and prestige. On principle, there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses also. Witnesses need as much protection against vexatious prosecutions as parties and the court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of section 195. |
| 2. | Â | Abettors of the offence – Whether persons who abetted the offence but were not parties to the proceedings came within the purview of (old) clause (c) ? Many High Courts held the view that in such a case a complaint by the court was not necessary for prosecuting them. This led to somewhat incongruous situation that while the main offender could not be prosecuted without sanction, any minor aiders, or abettors or accessories of his could be so prosecuted. |
| 3. | Â | Prosecution of others not a party to proceeding – Different views had also been taken by the High Courts on the question : where an offence specified in (old) clause (c) was allege to have been committed by several persons of whom only one was a party to the court proceedings, (a) could others be prosecuted without a complaint from the court ? (b) could the court make a complaint against those persons who were not parties ? |
The Law Commission, therefore, taking the overall view of the matter and keeping in mind the object of the section recommended that the scope of the clause should not be restricted to offences committed by parties to court proceedings. It should apply to an offence and criminal conspiracies, etc., in respect of documents, etc. Hence the words “by a party to any proceeding” have been omitted from sub-section (1)(b)(ii).
Proviso to sub-section (2) – The proviso has been added to make it clear that the power to withdraw the complaint conferred on the superior authority should not be exercised if the trial has concluded.
Nature of public servant’s subordination – The word “subordinate” in sub-section (1)(a) has been qualified by the word “administratively” to clarify the nature of subordination of the public servant.
LAW COMMISSION’S OBSERVATIONS
Offences against public justice – Under clauses (i) and (ii) of section 195 (1)(b) the complaint of the civil, revenue or criminal court concerned is necessary for any criminal court to take cognizance of certain offences against public justice or certain offences relating to documents given in evidence. As observed in a Madras case [K. Ramaswami Iyengar v. K.V. Panduranga Mudaliar AIR 1938 Mad. 173, 174] ” this salutary rule of law is founded on common sense. The dignity and prestige of courts of law must be upheld by their presiding officers, and it would never do to leave it to parties aggrieved to achieve in one prosecution gratification of personal revenge and vindication of a court’s honour and prestige. To allow this would be to sacrifice deliberately the dispassionate and impartial claim of tribunals and to allow a court’s prestige to be the sport of personal passions”.
Court – Meaning of
Supreme Court’s observations – The old definition of the “court” was :
” ‘Court’ includes Civil, Revenue or Criminal Court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act.”
The word “includes” in the above-quoted old Explanation was substituted by the Amending Act of 1923 for the word “means” used in the original Code. The Supreme Court in Virender Kumar Satyawadi v. State of Punjab [1955] 2 SCR 1013 observed :
“It is familiar feature of modern legislation to set up bodies and tribunals and to entrust to them work of a judicial character but they are not courts in the accepted sense of that term. It may be stated broadly that what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.”
Law Commission’s observations – “In any concrete case this question is bound to raise difficult and complex issues. Consequently we have a long series of cases over the years deciding what tribunals and officers acting in a judicial capacity should be regarded as courts and what should not be so regarded. The substitution of ‘includes’ for ‘means’ in the definition has, if anything, added to the difficulties of the problem. We consider that for the purpose of clauses (b) and (c), ‘court’ should mean a civil court or a revenue court or a criminal court properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if it is declared by that Act to be a court for the purposes of this section. This would make the position clear to all concerned, and particularly to criminal courts when required to take cognizance of offences falling within the scope of clause (c). They would then be left with the comparatively easy question whether the judicial body or authority before which the document was produced or given in evidence was a civil court or a revenue court or a criminal court.”
Registrar’s court excluded – As regards the exclusion of the courts of Registrars and Sub-Registrars, the Law Commission held the view that they could not be regarded as civil courts for the purpose of section 195 and their specific exclusion was therefore unnecessary.
In view of what has been stated above, sub-section (3) now omits a reference to Registrars and Sub-Registrars and includes an omnibus expression “Tribunal” with the qualifying attribute that it should have been declared to be a court for the purposes of section 195 by the relevant statute.
Income-tax Officer – Whether court – An Income-tax Officer can be said to be a court only when it is a Tribunal constituted by an Act and if that Act declares the said Tribunal to be a court for the purpose of this section. There is no Act which has done so. The Income-tax Officer is therefore not a court within section 195(1)(b) – Balkrishna, Managing Director v. ITO 1976 Mad. LJ (Cr.) 531. See also Friends Union Oil Mills v. ITO [1975] KLJ 596.