JUDGMENT
Pratap Kumar Ray, J.
1. Heard the learned advocates appearing for the parties.
2. This is an application under Section 482 of the Code of Criminal Procedure. 1973 assailing the order dated 5th September, 2005 passed by the learned Judicial Magistrate. 1st Class-II. Port Blair, District Andaman in C.R. No 58/2005 whereby and whereunder the learned Court below issued the process against the present petitioner herein for allegedly committing an offence punishable under Sections 182/191/193/200 of Indian Penal Code on the basis of the petition of complaint as filed under Section 200 of the Code of Criminal Procedure by the complainant therein alleging inter alia about filing of a false affidavit in a civil proceeding with reference to a Money Suit in connection with a partnership business which was being run by the present petitioner and the respondent-complainant herein under the name and style “Kim Beauty Parlour”. The only point has been urged before this Court about jurisdiction of the learned Magistrate below to entertain the complaint filed by the complainant with reference to an issue namely the filing of an affidavit before the Civil Court. To address this question, the statutory provision should be looked into first. Section 195 of the Code of Criminal Procedure, 1973 for brevity referred to as Cr. PC hereinafter, provides a statutory embargo of taking cognizance of any offence as detailed thereto until and unless a complaint in writing is filed by the public servant and/or the Court concerned as the case may be in terms of the alleged commission of offence under the Indian Penal code as mentioned thereto. To appreciate the issue, Section 195 of Cr.PC is set out herein below in extenso:
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, 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.
3. Learned Court below issued the process by taking cognizance of the offence under Sections 182, 191, 193 and 200 of the Indian Penal Code. Amongst those offences cognizance of which was taken. Section 182 of the Indian Penal Code has been mentioned in Section 195(a)(i) of the Code of Criminal Procedure, 1973 which provides an embargo that except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate no Court should take cognizance of the said offence Section 182 of the IPC relates to an offence on false information with intent to cause public servant to use his lawful power to the injury of another person.
4. The Section 191 of the Indian Penal Code is not a penal provision but a definition of the words of “Giving false evidence” for the purpose of suffering a punishment under Section 192 and/or Section 193. Section 193 is a section for punishment of giving such false evidence.
5. Hence, cognizance of an offence under Section 193 and Section 200 IPC could be taken by the competent Court of Criminal Jurisdiction on the basis of a complaint in writing of that Court or some other Court to which that Court is subordinate wherein such particular false evidence was adduced and/or wherein any declaration was made knowing it false, as true. Under Section 195(a)(i) and Section 195(b}(i) of Cr. PC there is no scope of an individual litigant in any civil proceeding and/or criminal proceeding and/or quasi-criminal proceedings; wherein the alleged offences were committed to launch a criminal prosecution by filing an application under Section 200 of the Criminal Procedure Code, as it requires a complaint in writing by the public servant in respect of alleged commission of offences under Sections 172 and 188 of the IPC and in respect of the offences under Sections 193 to 196, 199 to 200, 205 to 211 and 228 by the concerned Court.
6. In the instant case, admittedly there was no complaint filed either by any public servant or by the Court with reference to the alleged offences in respect of which cognizance was taken by the learned Court below.
7. Furthermore, it appears that under Section 340 of the Criminal Procedure Code procedural steps having been formulated by the legislators for holding an enquiry as to whether prima facie case made out on offences as are mentioned in the Section 105 of the Criminal Procedure Code for the purpose of lodging a formal complaint by the concerned Court to the competent Court of criminal jurisdiction. Section 340 of the Code of Criminal Procedure provides a procedural set up for an enquiry to identify prima facie case. The Section 340 Cr.PC is nothing but a supplementary provision of Section 195 Cr. PC and both should be taken into account conjointly for the purpose of launching a complaint for alleged commission of offences as mentioned in Clause (b) of Sub-section (i) of Section 195 Cr. PC by a Court concerned to a competent criminal Court having jurisdiction to entertain the matter. This view was long back expressed by the Court in the case of Jadunandan reported in ILR 37 Cal 250.
8. On a bare reading of Section 340 Cr. PC, it appears that for the purpose of conclusion that a particular person committed the offences, as are mentioned in Section 195(i)(b) of the Code of Criminal Procedure, an in-depth enquiry is required to be done and a clear finding is necessary by the Court that a prima facie case exist and in the interest of justice a criminal prosecution should be launched by filing a written complaint to the appropriate forum i.e. the Court of criminal jurisdiction. Section 340 of Cr. PC reads to this effect:
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.
(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.
(4) In this section, “Court” has the same meaning in Section 195.
9. Statute further has provided another safeguard of appellate provision under Section 341 of the Criminal Procedure Code assailing decision of the concerned Court with reference to the finding that a case was made out prima facie for launching a criminal prosecution. Section 341 Cr. PC reads such:
341. Appeal.-(1) Any person on whose application any Court other than a High Court has refused to make a complaint under Sub-section (1) or Sub-section (2) of Section 340, or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint, or, as the case may be, making of the complaint which such former Court might have made under Section 340, and, if it makes such complaint, the provisions of that section shall apply accordingly.
(2) An order under this section, and subject to any such order, an order under Section 340 shall be final and shall hot be subject to revision.
10. Hence, it appears that care and caution is required to be taken for the purpose of launching a criminal prosecution with reference to the offences of giving false evidence and/or giving a false declaration in a litigation either in civil and/or criminal or in a quasi criminal/civil forum. The Apex Court accordingly considered that aspect and held in many cases that the care should be taken to launch a criminal prosecution and Court should exercise such provision cautiously by filing a written complaint for criminal prosecution only when Court is satisfied with prima facie case by holding that there are materials to that effect. Reliance may be placed to the judgment passed in the case of Har Govind and Ors. v. State of Haryana wherein the Apex Court highlighted the point that for the interest of justice before a criminal prosecution is launched there must be a clear finding of Court prima facie that alleged offence was committed by the accused. In the case of K. Karunakaran v. T.V. Eachara Warrier and Anr. , wherein the Apex Court has determined the issue by holding that whether a prima facie case has been made out or not it should be considered in the angle that if it is unrebutted, may have a reasonable likelihood to establish specific offence and also whether it is expedient for the interest of justice to take such action. Same view was reiterated by the Apex Court subsequently in the case of K.T.M.S. Mohd. and Anr. v. Union of India by holding that word of caution is inbuilt in the provision itself and utmost care and due consideration should be taken to pass any order of prosecution. Even the Apex Court has gone to this extent in that case that mere fact of contrary statement at different stages in a judicial proceeding is not by itself always be sufficient to justify a prosecution of perjury under Section 193 of the IPC. In the case of Bibhuti Bhusan Basu v. Corporation of Calcutta and Ors. reported in 1982 Cri. LJ 909(Cal), the Calcutta High Court also considered this aspect while dealing with the issue as to whether any affidavit filed by the executive officer of the Calcutta Corporation which subsequently established as false affidavit on perusal of the record would justify launching of criminal prosecution when it came to light that the executive officer was advised wrongly by the concerned clerk. Court held that there should not be any initiation of criminal proceeding.
11. Having regard to that legal position as already discussed, this Court is of the view that initiation of a criminal prosecution on an application under Section 200 of the Code of Criminal Procedure filed by a litigant with reference to an affidavit as used in civil suit as was proceeding in between the parties viz. the complainant and the alleged accused petitioner herein was itself of without jurisdiction in terms of Section 195 Cr. PC and furthermore learned Court below also had no jurisdiction to take cognizance of the offence as there was no complaint in writing filed by the private servant and/or by concerned Court upon holding enquiry to that effect and upon being prima facie satisfied that for the ends of justice a criminal prosecution should be launched.
12. Considering the legal position as answered by this Court, this impugned order dated 05.9.2005 passed by learned Judicial Magistrate, First Class-II, Port Blair in C.R. No. 58/2005 of this application accordingly is not legally sustainable due to lack of jurisdiction and hence it is set aside and quashed.
This application accordingly stands allowed.