(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.
As per Section 195(2) of the Code of Criminal Procedure, where a complaint has been made by a public servant, 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. However, no such withdrawal shall be ordered if the trial in the court of first instance has been concluded. The object of this provision is to protect persons from being needlessly harassed by rash, baseless or vexatious prosecution at the instance of private individuals for the offences specified; to protect persons from criminal prosecution instituted upon insufficient grounds by persons actuated by malice, ill will or frivolity of disposition; to prevent innocent persons being put on trial at the instance of persons likely to be moved by motives of revenge and not to protect guilty persons from the penalty of their crimes, and to save the time of criminal courts from being wasted by endless prosecutions without convictions. Section 195 of the Code applies only to the offences mentioned therein and not to any other offences, and it does not bar the trial of an accused person for a distinct offence disclosed by the same fact, and which is not within the ambit of that Section. Provisions of Section 195 of the Code are mandatory and the Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is complaint in writing as required by this section.
Prosecution for offences against public justice and for offences relating to documents given in evidence: According to Section 195(l) (b) of the Code of Criminal Procedure, no Court shall take cognizance— (1) Of any offence punishable under any of the Sections of the Indian Penal Code, namely, Sections 193 to 196, 199, 200, 205 to 211 and 228 which relate to giving or fabricating false evidence, false statement made in any declaration, using as true a false declaration, false personation, fraudulent removal or concealment, etc. of property to prevent its seizure in legal process, claiming property without right to prevent its seizure, etc., when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court; or (2) Of any offence of forgery described in Section 463, or punishable under Section 471, Section 475 or Section 476 of the Indian Penal 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 (3) 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 by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. As per Section 195(3) of the Code of Criminal Procedure, 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 Section 195 of the Code. According to Section 195(4) of the Code of Criminal Procedure, 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. However, (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. The purpose of Section 195(1) (b) of the Code 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. The offence must have been committed ‘in or in relation to, any proceeding in any Court’.
It is indispensable that the offence committed must have affected the proceedings or had been designed to affect them. The document must be produced or given in evidence in a proceeding in any Court. Even in cases of any criminal conspiracy to commit or attempt to commit or abetment of such offences (i.e.
, offences mentioned in sections 463, 471, 475 or 476 of the Indian Penal Code) the provisions of this sub-section of Section 195 of the Code are attracted. A complaint by the Court is required where the offence is of forging or of using as genuine any document which is known or believed to be a forged document when such document is produced or given in evidence in Court. Where, what is produced before the Court is not the forged document itself, Section 195(l) (b) of the Code will not apply on its terms. Section 195(l)(b)(ii) of the Code can be confined to forgeries committed in respect of a document during its custody by the court or its fabrication in the course of the proceedings itself.
When a document is forged and then produced in a Court, the complaint as regards the offence of forgery can be lodged by anyone and no formal complaint by the Court, where the forged document is filed or introduced, is necessary. A complaint by a Court is necessary only when forgery in respect of a document is committed after the document has already produced in the Court or introduced in evidence. When the document was alleged to have already been forged before the same was introduced into evidence, the question of any formal complaint being lodged by the Court, wherein the alleged forged sale deed was filed, does not arise at all. Any person whose application to the Court to make a complaint has been refused by the Court, or any person against whom such a complaint has been made by such Court, has a right to appeal under Section 341 of the Code and Section 343 prescribes procedure for taking cognizance by a Magistrate on a complaint made to him under Section 341. In such a case the Magistrate can proceed directly as if in a case instituted on police report. The principle underlying Section 195 of the Code is that where an act to the offence of contempt of the lawful authority of public servants, or to an offence against public justice, such as, giving false evidence or to an offence relating to documents actually used in a Court private prosecutions are barred absolutely and only the Court in relation to which the offence was committed may initiate proceedings. Complaint for offence of giving false information through public servant by whom should be filed: Complaint for offence of giving false information to public servant should be filed by public servant to whom false information was given.
Complaint filed by his subordinate would be improper. Protection against prosecution for statement made to Commission: Section 6 of the Commissions of Inquiry Act guarantees immunity to a witness. It clearly stipulates that a person making a statement in course of examination before the Commission enjoys certain protection, inasmuch as no statement made by a person in course of giving evidence before the Commission shall subject him to, or be used against him, in a civil or criminal proceeding. This protection is guaranteed in order to create confidence on the person to speak truth, nothing but the truth before the Commission and not hide anything. At the same time, the person is also cautioned that taking advantage of such immunity if he makes a false statement before the Commission he would be prosecuted. The “Statement” as per Section 6 of the Act is explained to be a “statement” made in reply to a question which he is required by the Commission to answer Perusal of Sections 145, 155 and 157 of the Evidence Act clearly indicates that a previous statement can only be used for contradiction or for corroboration. The restrictions imposed under Section 6 of the Commission of Inquiry Act stipulating that a statement made by a person before the Commission cannot be used either for the purpose of contradiction in cross-examination of the said witness or for the purpose of impeaching his credibility, is aimed to protect the witness and to provide immunity to the said person.