An Analysis of Section 195 of the Code of Criminal Procedure, 1973

A Comprehensive Analysis of Section 195 of the Code of Criminal Procedure, 1973: Procedural Mandates for Prosecution

Introduction

Section 195 of the Code of Criminal Procedure, 1973 (CrPC)[11, 13] stands as a crucial procedural provision in Indian criminal law, establishing specific conditions requisite for the initiation of proceedings for certain categories of offences. Its primary objective is to safeguard individuals from vexatious and frivolous prosecutions, protect the lawful authority of public servants, maintain the sanctity of judicial proceedings, and prevent the misuse of the legal process for offences related to false evidence and forged documents used in court.[11] While the legal topic specified for this analysis was "section 195 of ipc," it is pertinent to clarify that Section 195 is a provision within the Code of Criminal Procedure, not the Indian Penal Code, 1860 (IPC). However, Section 195 CrPC directly governs the procedure for taking cognizance of several offences defined under the IPC, including Section 195 IPC (which pertains to giving or fabricating false evidence with intent to procure conviction of certain offences), among many others. This article will, therefore, delve into a comprehensive analysis of Section 195 CrPC, drawing upon the provided reference materials and relevant jurisprudence from Indian courts.

The provision acts as a statutory exception to the general power of Magistrates to take cognizance of offences under Section 190 CrPC.[11, 13] It mandates that for the offences enumerated therein, a court cannot take cognizance unless a complaint in writing is made by the public servant concerned, or by the court in which (or in relation to which) the offence is alleged to have been committed, or by a court to which such court is subordinate. This article will explore the historical context, scope, interpretation, and application of Section 195 CrPC, with particular attention to judicial pronouncements that have shaped its understanding.

Historical Context and Legislative Intent

Section 195 CrPC is located in Chapter XV, Part B, of the Code, under the heading "Conditions requisite for Initiation of Proceedings."[10, 11] This placement itself underscores its role as a gatekeeping mechanism. The legislative intent behind Section 195 CrPC, as discerned from judicial interpretations, is multifaceted. Primarily, it aims to prevent the harassment of individuals through malicious or ill-founded criminal complaints related to their interactions with public authorities or courts.[11] As observed in Patel Laljibhai Somabhai v. State Of Gujarat, the main purpose of Section 190 CrPC is to ensure freedom and safety of the subject by giving him a right to approach the Court, while Section 195 CrPC places some restrictions on this general power.[11]

The provision seeks to ensure that prosecutions for offences affecting the administration of justice or the lawful authority of public servants are initiated only after due consideration by the concerned authority or court, thereby filtering out frivolous claims and protecting the integrity of the judicial process.[8, 4] The Supreme Court in Iqbal Singh Marwah And Another v. Meenakshi Marwah And Another noted that the bar under Section 195 CrPC is intended to control the temptation to launch vexatious criminal proceedings.[8]

Scope and Categorization of Offences under Section 195 CrPC

Section 195(1) CrPC delineates three distinct categories of offences for which its procedural bar applies. This categorization is crucial for understanding the specific requirements for initiating prosecution. As elucidated in K.A Kuttiah v. The Federal Bank Ltd. & Others[12] and Patel Laljibhai Somabhai[11], these are:

Clause (a): Contempt of Lawful Authority of Public Servants

Section 195(1)(a) CrPC pertains to offences punishable under Sections 172 to 188 of the IPC (Chapter X IPC: "Of Contempts of the Lawful Authority of Public Servants"). Cognizance of these offences can only be taken on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. The Supreme Court in C. Muniappan And Others v. State Of Tamil Nadu emphasized the mandatory nature of a written complaint from a competent public servant for offences under Section 188 IPC, although in that specific case, the procedural lapse did not vitiate the entire trial due to overwhelming other evidence for more serious charges.[7] In K. Vengadachalam v. K.C Palanisamy And Others, the Supreme Court clarified that if the complaint does not relate to the falsity or otherwise of a complaint before a public servant (like a Deputy Registrar of Chits in that case) but to distinct offences like forgery, Section 195(1)(a) may not apply.[23]

Clause (b)(i): Offences Against Public Justice

Section 195(1)(b)(i) CrPC covers offences against public justice, specifically those punishable under Sections 193 to 196 (inclusive), 199, 200, 205 to 211 (inclusive), and 228 of the IPC (all falling under Chapter XI IPC: "Of False Evidence and Offences against Public Justice").[12] For these offences, when committed in, or in relation to, any proceeding in any Court, cognizance can be taken only 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 judiciary has consistently held that this provision is vital for maintaining the purity of the judicial process.[15] Offences like perjury (Section 193 IPC)[5, 6, 21] and making a false charge (Section 211 IPC)[1, 2] fall under this category when committed in or in relation to court proceedings. The Supreme Court in Santokh Singh v. Izhar Hussain And Another clarified the distinction between Section 211 IPC (falsely charging to initiate criminal proceedings) and Section 193 IPC (false evidence in court), noting that false evidence in court should be addressed under Sections 193 or 195 IPC, not Section 211 IPC for the purpose of the bar under Section 195 CrPC.[1] The case of Biswanath Bhakta And Others v. State Of West Bengal And Another highlighted that offences under Sections 209 and 210 IPC (dishonestly making false claim in Court and fraudulently obtaining decree for sum not due) have a direct connection with court proceedings and thus require a complaint from the court.[16]

Clause (b)(ii): Offences Relating to Documents Given in Evidence

Section 195(1)(b)(ii) CrPC deals with offences described in Section 463, or punishable under Section 471, Section 475 or Section 476 of the IPC (Chapter XVIII IPC: "Of Offences relating to Documents and to Property Marks"), 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.[12] Similar to clause (b)(i), cognizance requires a complaint in writing from that Court or its authorized officer, or a superior Court.

The interpretation of this clause, particularly the phrase "when such offence is alleged to have been committed in respect of a document produced or given in evidence," has been a subject of considerable judicial scrutiny, culminating in the Constitution Bench decision in Iqbal Singh Marwah And Another v. Meenakshi Marwah And Another.[8]

The Bar on Cognizance and the Requirement of a Complaint

The core of Section 195 CrPC is the imposition of a bar on the court's power to take cognizance of the specified offences unless the procedural requirement of a formal written complaint by the designated authority or court is met.[14, 22] This requirement is mandatory, and non-compliance can vitiate the proceedings.[7, 14] As stated in RAJESH S/O SHRI PRAHLAD B/C BRAHMIN v. STATE OF RAJASTHAN, the condition of a written complaint by the concerned public servant (for offences under S.195(1)(a)) or court (for offences under S.195(1)(b)) must be strictly complied with, and an order of cognizance passed without such a complaint is not legally sustainable.[14]

The term "complaint" here has a specific meaning, distinct from a complaint filed by a private individual under Section 2(d) CrPC. It refers to a formal accusation made in writing by the public servant or court itself. The procedure for courts to make such complaints is detailed in Section 340 CrPC.[9]

Interpretation of Key Phrases

"In or in relation to any proceeding in any Court" and "Committed in respect of a document produced or given in evidence"

A significant line of cases has dealt with whether the bar under Section 195(1)(b)(ii) CrPC applies if the offence (e.g., forgery) was committed *before* the document was produced in court, or only if it was committed *while* the document was in custodia legis (in the custody of the court).

The Supreme Court in Sachida Nand Singh And Another v. State Of Bihar And Another[4] adopted a narrow interpretation, holding that the bar under Section 195(1)(b)(ii) applies only when the offence is committed concerning a document *during* its custody in court, not when the forgery occurs prior to its presentation in court. This view was affirmed and definitively settled by the Constitution Bench in Iqbal Singh Marwah And Another v. Meenakshi Marwah And Another.[8] The Court held:

"In view of the language used in Section 195(1)(b)(ii) CrPC read with Section 340 CrPC, the bar would be attracted only when the offences enumerated in the said provision have been committed with respect to a document *after it had been produced or given in evidence in a proceeding in any Court*, i.e., during the time when the document was in custodia legis."[8, 23]

Thus, if a document is forged *before* its production in court, a private complaint is maintainable, and the bar under Section 195(1)(b)(ii) CrPC does not apply.[3, 16, 27] This interpretation prevents the anomalous situation where a party who has forged a document could subsequently use the court proceedings as a shield against prosecution by simply producing the forged document in court.[4, 8] The decision in Surjit Singh And Others v. Balbir Singh also indicated that Section 195 applies when the original forged document is produced, not merely a copy, and that cognizance taken before the document was produced in a separate civil proceeding was valid.[3]

However, it is important to distinguish this from situations where the offence itself is intrinsically linked to the court proceeding, such as giving false evidence (Section 193 IPC) or making a false claim in court (Section 209 IPC). For these, the bar under Section 195(1)(b)(i) CrPC would apply irrespective of when the intent was formed, as the offence crystallizes within the judicial proceeding.[16] The Supreme Court in State Of Karnataka v. Hemareddy Alias Vemareddy And Another observed that if the facts constitute an offence of fabricating false evidence (S.193 IPC), which is covered by S.195(1)(b) CrPC, a private person cannot evade this bar by prosecuting for a more general offence like forgery if the core allegation is fabrication of evidence for court use.[20] This needs to be read harmoniously with Iqbal Singh Marwah, which specifically addresses pre-existing forgeries under S.195(1)(b)(ii).

What Constitutes a "Court"?

Section 195(3) CrPC clarifies that the term "Court" in clause (b) of sub-section (1) includes a Civil, Revenue or Criminal Court, and also 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.

In Lalji Haridas v. State Of Maharashtra And Another, the Supreme Court held that while proceedings before an Income-Tax Officer under the Income-tax Act, 1922, were deemed "judicial proceedings" for the purpose of Section 193 IPC, the Income-Tax Officer was not a "Court" within the meaning of Section 195(1)(b) CrPC.[5] Therefore, a complaint by the Income-Tax Officer was not a prerequisite for prosecuting a person for giving false evidence before him. Conversely, in Chandrapal Singh And Others v. Maharaj Singh And Another, a Rent Control Officer was held to be a "civil court" for the purposes of Section 193 IPC due to specific provisions in the relevant Rent Act, thus necessitating a complaint from that officer for prosecution under Section 193 IPC.[21] The Madras High Court in Ace Investments Ltd. v. Settlement Commission noted that proceedings before the Settlement Commission under the Income Tax Act were deemed judicial proceedings for Sections 193 and 228 IPC and for Section 196 CrPC (likely a typo in the source, meaning Section 195 CrPC).[19]

Procedure under Section 340 CrPC

Section 340 CrPC lays down the procedure to be followed when a court, upon an application made to it or otherwise, is of the opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195(1)(b) CrPC, 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.[9, 15]

The court is required to:

  1. Hold a preliminary inquiry as it thinks necessary (or if an application is made, give the opposite party an opportunity of being heard).
  2. Record a finding to that effect.
  3. Make a complaint thereof in writing.
  4. Send it to a Magistrate of the first class having jurisdiction.

The Supreme Court in M.S Ahlawat v. State Of Haryana And Another, citing Chajoo Ram v. Radhey Shyam, emphasized that prosecution for perjury should be sanctioned only where it appears to be deliberate and conscious, and conviction is reasonably probable.[6, 14] The court is not bound to make a complaint; it must form an opinion that it is "expedient in the interests of justice" to do so.[15, 25] This involves a careful exercise of judicial discretion. The High Court of Kerala in K.K.KRISHNAN v. STATE OF KERALA, referencing Iqbal Singh Marwah, reiterated that the court is not bound to make a complaint but must determine if such prosecution is necessary in the interest of justice.[15]

In Perumal v. Janaki, the Supreme Court highlighted the High Court's supervisory powers under Article 227 of the Constitution and CrPC provisions to intervene where public justice is at stake, even if there are procedural bars like Section 195 CrPC, and remitted the matter for appropriate action against the respondent who allegedly filed a false charge-sheet.[2]

Judicial Pronouncements and Key Developments

The jurisprudence surrounding Section 195 CrPC has evolved significantly. The distinction between Sections 195(1)(b)(i) and (ii) is clear: the former relates to false evidence and offences against public justice generally in court proceedings, while the latter specifically concerns offences related to documents produced or given in evidence.[9]

The most impactful development has been the clarification by the Constitution Bench in Iqbal Singh Marwah[8] regarding Section 195(1)(b)(ii). By holding that the bar applies only when forgery is committed concerning a document already in custodia legis, it resolved conflicting views and ensured that the provision is not misused to shield offenders who forge documents before bringing them to court. This principle has been consistently followed.[23, 27]

Cases like Ram Dhan v. State Of Uttar Pradesh And Another[22] reiterate that an FIR alleging offences covered by Section 195 CrPC (such as giving false information to police leading to wrongful conviction, potentially implicating IPC sections covered by S.195(1)(b)(i) CrPC) is not maintainable, and the procedure under Section 340 CrPC must be followed. The summary of MAYURI SURESH BAMNE v. STATE OF MAHARASHTRA[26] mentions Ram Dhan for the proposition that fabrication of false evidence for S.195 IPC can be outside court if used in court, but this should be understood in the context that S.195 CrPC would still govern the initiation of proceedings if such evidence is used in court.

Conclusion

Section 195 of the Code of Criminal Procedure, 1973, serves as a vital safeguard in the Indian criminal justice system. It balances the right of individuals to seek justice with the need to protect public servants and the judicial process from abuse. Its provisions, particularly the mandatory requirement of a written complaint from the specified authority or court, ensure that prosecutions for sensitive offences impacting the administration of justice are initiated with due deliberation and responsibility.

The judiciary, through landmark pronouncements like Patel Laljibhai Somabhai, Sachida Nand Singh, and especially the Constitution Bench decision in Iqbal Singh Marwah, has meticulously interpreted the scope and application of Section 195 CrPC. These interpretations have clarified ambiguities, particularly concerning offences related to documents, and have reinforced the legislative intent to prevent vexatious litigation while ensuring that genuine offenders do not escape justice through procedural technicalities. The interplay between Section 195 CrPC and Section 340 CrPC provides a structured mechanism for courts to address offences committed in or in relation to their proceedings, emphasizing the expediency in the interest of justice. Adherence to the mandates of Section 195 CrPC remains paramount for the fair and orderly administration of criminal justice in India.

References