Professional Documents
Culture Documents
to be adopted and trial of cases under
chap XI of Indian Penal Code read with Code of
Criminal Procedure
Prepared by,
Smt. S.S.Pansare, Jt.C.J.J.D & J.M.F.C. Solapur,
approved by the Workshop Committee, Solapur.
Manu samhita stanza 14 reads as
न तेन च
ततरततर् धररर्मो हधरर्मेत सत्थथं ततरततररानत
5
a person who is legally bound by an oath or an express
provision of law to state the truth or bound by law to
make a declaration upon any subject makes a statement,
which he knows or believes to be false is said to give false
evidence.
Various forms of false evidence
Forged Evidence
An item or information manufactured or
altered to support some agenda
Planted evidence
An item or information which has been moved or
planted at scene to seem related to accused party.
Tainted Evidence
Tainted evidence where the origin of the evidence
is untruthfully represented, preventing discussion
of whether it was legally obtained or not.
Parallel construction
Tainted evidence where the origin of the evidence
is untruthfully represented, preventing discussion
of whether it was legally obtained or not.
Suppressed evidence
An item or information which a court has ruled as
inadmissible is forbidden to be presented in a
court.
In the case of State of Maharashtra and others v. Manohar
Yashwant Patil and others reported in 1997 Criminal Law
journal 3114 hon'ble Bombay High Court has held that:
It is wellsettled that a notice of perjury should only be issued
if it is warranted in the interests of justice and the person
against whom it is issued is palpably shown to be a liar.
....While issuing notices of perjury the Court has to exercise a delicate
balance between two extremes; One being that people giving perjured
evidence should not be allowed to go Scottfree for that would be giving a
licence to persons to give perjured evidence. On the other hand, the Court
has to equally bear in mind that being very sensitive on this issue and
approaching evidence scathingly and easily jumping to the conclusion
that witnesses are liars would result in people shying from giving evidence
in Courts; a tendency which is on the increase in our country.
PROSECUTION FOR OFFENCE AGAINST PUBLIC
JUSTICE AND OFFENCE RELATING TO EVIDENCE
Section 195 (1)(b)(i) of the Cr.P.C. provides that no Court shall
take cognizance of following offences when those offences are
alleged to have been committed in, or in relation to, any
proceeding in any Court, 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 by some other Court to
which that Court is subordinate.
Thus, section 195 provides an exception to the
general provision under section 190 regarding
cognizance of offences by Magistrates. It creates
an embargo upon the power of the Court to take
cognizance of certain types of offences
enumerated therein.
Object
to provide safeguard against irresponsible and reckless
prosecutions by private individuals in respect of offences
which relate to the administration of justice and contempt of
lawful authority.
In M. S. Ahlawat v/s. State of Haryana AIR 2000 SC 168, it has been
held that,
“Provisions of S. 195 are mandatory and no Court has jurisdiction
to take cognizance of any of the offences mentioned therein unless there
is complaint in writing as required under that S.. It is settled law that
every incorrect or false statement does not make it incumbent upon the
Court to order prosecution, but requires the Court to exercise judicial
discretion to order prosecution only in the larger interest of the
administration of justice, S. 340 Cr. P. C. prescribes the procedure as to
how a complaint may be preferred u/s. 195 Cr. P. C. A complaint outside
the provisions of S. 340 Cr. P. C. can not be filed by any civil, revenue or
criminal Court under its inherent jurisdiction”.
Procedure
Chapter XXVI of the
Code of Criminal
Procedure deals with
provisions as to offences
affecting administration
of justice.
18
Section 340 provides procedure in cases
mentioned in Section 195
●
Upon an application
or
●
Suo moto
Only requirement is
Court must be of the opinion that it is expedient in the interest of
justice that an enquiry should be made
If offence appears to have committed court may held
preliminary enquiry, shall adopt following procedure:
(i) Record finding to that effect.
(ii)Make a complaint thereof in writing.
(iii)Send it to the Magistrate having jurisdiction.
Complaint has to be signed by such officer of that Court
as the court may appoint.
Any other court
Presiding officer of that Court or by such officer of
the court as the court may authorize in writing in
his behalf.
Whether stranger can lodge the complaint
In N. Natrajan Vs. B. K. Subbarao reported in
AIR 2003 SC 541 Hon'ble Supreme Court has
held that a complaint in respect of the offences
affecting the administration of justice can be
lodged by stranger to the proceeding.
Amendment – S. 195 A Cr. P. C.
The object of this Section is to ensure prosecution only
after consideration by the appropriate authority so that
frivolous or needless, prosecution are avoided.
Section 197
This section is intended to guard against vexatious proceedings against
Judges, Magistrates, public servants, not removable from offence except
with or by the sanction of the Government, and members of the Armed
Forces without the sanction of higher authorities.
S. 197 A of Cr. P. C. (Maharashtra Amendment) protects Court
Commissioners and Court Receivers appointed under the
provisions of Code of Civil Procedure from prosecution, when the
act alleged was committed while acting in that capacity or
purporting to be in connection with said capacity. Previous
sanction of the Court is necessary, without which cognizance can
not be taken.
S. 198, 198A, 199 Cr. P. C. prescribe that unless the
complaint is filed by particular person, cognizance
of the offences mentioned in those sections can not
be taken.
S. 198, 198A, 199 Cr. P. C. prescribe that unless the
complaint is filed by particular person, cognizance
of the offences mentioned in those sections can not
be taken.
Preliminary inquiry and right of participation :
The Court is not bound to make a preliminary inquiry,
but, if it decides to do so, it should make a finding as to
whether on facts it is expedient in the interest of justice
that the offence should be further probed. The purpose is
not to find out whether a person is guilty or not but, is
only to decide whether it is expedient in the interest of
justice to inquire into the offence.
In Prem Sagar Manocha vs State (Nct Of Delhi) reported in (2016) 4 SCC 571
Hon'ble Supreme Court has observed that
'Section 340 of Cr.P.C, prior to amendment in 1973, was Section 479A in the
1898 Code and it was mandatory under the preamended provision to record a finding after
the preliminary inquiry regarding the commission of offence; whereas in the 1973 Code, the
expression ‘shall’ has been substituted by ‘may’ meaning thereby that under 1973 Code, it is
not mandatory that the court should record a finding. What is now required is only
recording the finding of the preliminary inquiry which is meant only to form an opinion of
the court, and that too, opinion on an offence ‘which appears to have been committed’, as to
whether the same should be duly inquired into'.
OBJECT OF SECTION 340
(a) To protect persons from criminal prosecutions by persons, actuated by
personal malice or illwill.
(c) To protect persons from prosecutions on insufficient grounds and to
ensure prosecution only when the Court, after due consideration is
satisfied that there is a proper case to put a party on his trial.
(d) To afford reasonable opportunity with a view to follow principles of
natural justice being proceeding is of penal nature.
(e) To find out as to whether it is expedient in the interest of justice that an
enquiry should be made before filing a complaint.
(f) To give an opportunity to file appeal against the findings recorded on
reasoned, just, valid order in respect of filing of the complaint.
(h) To prescribe procedure to be followed while filing the complaint with a
view to give clear picture to both victim and accused.
Right of proposed
accused of hearing
So far as right of proposed accused of hearing during the preliminary
enquiry is concerned, the Hon'ble Supreme Court in the case of Prithish
V State of Maharashtra, reported in AIR 2002 SC 236, held that the
stage envisaged in Section 340 is not deciding the guilt or innocence of
the party against whom proceedings are to be taken before the Magistrate.
At that stage the Court only considers whether it is expedient in the
interest of justice that an inquiry should be held into any offence
affecting administration of justice. The presence of the would be accused
is not necessary for the Court to decide the question of expediency in the
interest of justice. The persons against whom proceeding were instituted
had no right to participate in the preliminary inquiry.
APPEAL
Section 341 of the Code provides the remedy of appeal to an
aggrieved person from the orders passed under section 340. Such
appeal has to be filed before a Court to which such former court is
subordinate. In appellate court both the parties get right of hearing.
The appellate court may direct withdrawal of the complaint or as
the case may be, making of the complaint which the subordinate
court might have made under section 340 of Cr.P.C.
Section 343 provides for procedure to be
followed by magistrate taking cognizance.
Procedure under Section 344
Summary procedure is provided for trial for giving
false evidence. Section 344 empowers the court of
Session or Magistrate of the First Class to try cases
of perjury committed before them and punish the
offenders summarily.
Condition precedents
(i)The expression of opinion by the court at the time of delivery
judgment or final order that the witnesses appearing before it had
knowingly or willfully given false evidence or has fabricated false
evidence with the intention that such evidence should be used in
such proceeding.