Justice V.

Ramkumar
Former Judge, High Court of
Kerala

P ROSECUTION FOR OFFENCES INCLUDING “PERJURY” COVERED

B Y SECTION 195 Cr.P.C.

Q.1 Which are the offences pertaining to contempt of lawful

authority of “public servants” covered by Section 195 (1) (a)
Cr.P.C?

Ans. The offences pertaining to contempt of lawful authority of

“public servants” are those enumerated under Section 195(1)
(a) Cr.P.C. Those offences are :-

i) Offences punishable under Sections 172 to 188 (both

inclusive) and Section 174 A of IPC, or
ii) Any abetment of, or attempt to commit, the above
offences, or
iii) Any criminal conspiracy to commit the above offences.

Q.2 An order passed by a Sub-Divisional Magistrate (SDM) under

Section 133 Cr.P.C is made absolute under Section 138 Cr.P.C
after conducting an inquiry. Which is the forum for
challenging that final order?

Ans. The forum is either the Sessions Court or the High Court
exercising their revisional jurisdiction under Section 397 Cr.P.C.
An Executive Magistrate is deemed to be an inferior criminal
Court for the purpose of Section 397 Cr.P.C by virtue of
Explanation to Section 397 (1) Cr.P.C.
 Justice V. Ramkumar
2 Former Judge, High Court of
Kerala

Q.3 A party furnishes false information before the SDM in a

proceeding under Section 133 Cr.P.C. The conduct of the
party amounts to an offence punishable under Section 177
IPC. Aggrieved by the refusal on the part of the SDM to file a
complaint, the opposite party approaches the Sessions Judge
under Section 397 Cr.P.C for prosecuting the erring party.
Will he succeed?

Ans. No. The remedy of the opposite party is to move the District
Magistrate (District Collector) to whom the SDM is
administratively subordinate. What is provided under Section
195 (1) (a) is administrative subordination and not judicial
subordination. (vide The State v. Sudhir Ruhidas AIR 1959
Cal 450 = 1959 Cri.L.J 833).

Q.4 Is the Magistrate debarred from taking cognizance of an

offence enumerated under Section 195(1)(a) Cr.P.C on a
compliant preferred by a private person ?

Ans. Yes. (Vide State of U.P v. Mata Bhikh – (1994) 4 SCC 95).

Q.5 Is the provision for making of a complaint by the public

servant mandatory and will a complaint by a private party
render the trial and conviction void?

Ans. Yes. In the absence of a complaint by the “public servant”, the

trial and conviction, if any, made will be void ab initio being
without jurisdiction. (Vide Para 33 of C. Muniappan v. State
of T.N – (2010) 9 SCC 567 = AIR 2010 SC 3718).
Q.6 Whether the trial of an offence falling under Section 195(1)
(a) should be “summons trial’ or “warrant trial”?

Ans. It will depend upon the punishment prescribed for the offence.
With regard to the offences punishable under Section 174 A
and 181 IPC, the procedure will have necessarily to be warrant
procedure since those offences are punishable with
imprisonment for a term exceeding 2 years.

Q.7 Where a public servant has made a complaint under Section

195(1)(a) Cr.P.C, has the superior authority to whom such
public servant is administratively subordinate, got any
power with regard to such complaint ?

Ans. Yes. Such administrative superior can order withdrawal of the

complaint if the trial on such complaint has not been concluded
and upon withdrawal of such complaint the administrative
superior should send a copy of the order to the Court and
thereupon no further proceedings shall be taken on the
complaint. (Vide Section 195(2) and its proviso).

Q.8 It is alleged that on 25-03-2020 the accused pedestrian on a

public road at Kozhikode disobeyed an order (not referable to
a promulgated order) given by a Public Servant attached to
the Health Department and on duty and when objected to by
the Public Servant the accused caused hurt punishable under
Section 323 IPC to the Public Servant. On reporting the
matter an FIR was registered by the police for an offence
 punishable under Section 3 of the Epidemic Diseases Act,
1897(Central Act 3 of 1897) read with Section 188 IPC and
Section 323 IPC. After investigation the police filed a charge
sheet before the Magistrate having jurisdiction for the
aforementioned offences. On a doubt raised by the
Magistrate, it is argued by the Asst. Public Prosecutor that as
per the Cr.P.C, the offence under Section 188 IPC is a
cognizable offence and Section 188 IPC and Section 323 IPC
(Non-cognizable) together constitute a “cognizable case”
within the meaning of Section 155 (4) Cr.P.C and, therefore,
the police had the jurisdiction to register a crime, investigate
the same and file a charge sheet. What is your opinion about
this case?

Ans. Even though an offence punishable under Section 188 IPC is a

cognizable offence, cognizance of the said offence can be taken
only on the complaint of the Public Servant concerned in view
of Section 195 (1) (a) Cr.P.C. If the police had no jurisdiction to
register an FIR, they had no authority to investigate the non-
cognizable offence punishable under Section 323 IPC without
the order of the Magistrate under Section 155 (2) Cr.P.C.
Therefore, the Magistrate will be justified in not taking
cognizance of the offence on the “police report”. Hence, it was
impermissible for the police to treat the case as a “cognizable
case” and register an FIR and investigate the case and charge
sheet the accused.
 Moreover, an offence under Section 188 IPC will be
attracted only if the direction was in compliance of a
promulgated order. That is also absent in the case. In a recent
decision dated 26-06-2020 by a learned single Judge of
Madras High Court in CRL.O.P.No. 9487 of 2020 and
CRL.M.P.Nos. 4258 & 4259 of 2020 it has been held that the
police shall not register an FIR for any of the offences falling
under Sections 172 to 188 of IPC. Further directions have been
issued as to when an offence under Section 188 IPC can be said
to have been made out.

NOTE:- It may also be noted that under Section 3 of the Epidemic

Diseases Act, 1897 any person who disobeys an order made
under the Act is deemed to have committed an offence
under Section 188 IPC.

Q.9 Is it not correct to say that the procedure under Section 340
Cr.P.C. is applicable in respect of the offences enumerated
both under Clauses (a) and (b) of Section 195 (1) Cr.P.C?

Ans. No. The procedure under Section 340 Cr.P.C. is applicable only
with regard to the offences covered by Clause (b) of Section
195
(1) Cr.P.C and committed in relation to proceedings in any
Court. The said procedure has no application in respect of the
offences covered by Clause (a) of Section 195 (1) Cr.P.C
committed before Public Servants.
Q.10 Which are the offences against “public justice” and offences
relating to “documents given in evidence” covered by
Section 195 (1) (b) Cr.P.C.?

Ans. The offences against public justice are covered by Clause (i)
of Section 195 (1) (b) Cr.P.C. which are those punishable under
Sections 193 to 196 (both inclusive), 195 A, 199, 200, 205 to
211 (both inclusive) and 228 IPC, all committed in relation to
any proceeding in a “Court” as defined under Section 195 (3)
Cr.P.C. Clause (iii) thereof also seeks to cover any criminal
conspiracy or attempt to commit or abetment of those offences.

The offences relating to documents given in evidence are

covered by Clause (ii) of Section 195 (1) (b) Cr.P.C. which are
those described in Section 463 IPC and those punishable under
Sections 471, 475 or 476 IPC. Clause (iii) thereof seeks to cover
any criminal conspiracy or attempt to commit or abetment of
those offences.

Q.11 During the trial of a civil case, the plaintiff files a petition
before the learned Munsiff requesting to hold a preliminary
inquiry under Section 340 Cr.P.C alleging that a document
produced by the defendant and attempted to be used as
genuine is a forged document falling under Section 195 (1)
(b) (ii) Cr.P.C. The Court refuses to entertain the application
on the ground that the plaintiff’s case is that the document
that was produced in Court was already a forged document.
Is the view taken by the Court legally sustainable?
Ans. Yes. Even though there was a conflict of view by 2 three-Judge
Benches of the Supreme Court regarding the question, the
matter has been laid at rest by a Constitution Bench decision of
the Apex Court in Iqbal Singh Marwah v. Meenakshi
Marwah (2005) 4 SCC 370 = AIR 2005 SC 2119. The 5
Judge
Bench has held that Section 195 (1) (b) (ii) Cr.P.C will be
attracted only if the document was forged after its production
before Court. In other words, the forgery should have been
committed when the document was in “custodia legis”.
Fabrication of false evidence for the purpose of being used in
any stage of judicial proceeding, is covered by Section 193 IPC.
(vide Vishnu Chandru Gaonkar v. N.M.Dessai (2018) 5 SCC
422).
NOTE:- Is it necessary for using a forged document as genuine
within the meaning of Section 471 IPC, that the forgery
also should have been committed after the production of
the document in Court?
Q12. Is preliminary inquiry under Section 340(1) Cr.P.C a must
with regard to an offence falling under Section 195 (1) (b)
Cr.P.C ?

Ans. No. The wording of Section 340(1) “such Court may after such
preliminary inquiry, if any, as it thinks necessary” itself
indicates that preliminary inquiry is not a must. If the Court is
otherwise satisfied that it is expedient in the interest of
justice that the offence should be further probed by filing a
complaint, it can do so even without a preliminary inquiry.
(Vide Paragraphs 16 and 18 of Pritish v. State of
Maharashtra – (2002) 1 SCC 253 = AIR 2002 SC 236).
Q.13 Which are the Courts before which a prosecution under
Section 195 (1) (b) can be launched by filing a compliant in
writing?

Ans. Section 195 (3) Cr.P.C. defines the term “Court” for the purpose
of Section 195 (1) (b) Cr.P.C. The word “Court” includes a Civil,
Revenue or Criminal Court and includes a Tribunal constituted
by or under a Central or State Act if declared by the Act to be a
Court for the purposes of Section 195 (1) (b) Cr.P.C. (vide
Keshab Narayan Banarjee v. State of Bihar (2000) 1 SCC
607 = AIR 2000 SC 485).

Q.14 Is it not permissible for the Magistrate to take cognizance of

an offence punishable under Section 193 IPC covered by
Section 195 (1) (b) Cr.P.C on the basis of a private complaint?

Ans. No. (vide Narendra Kumar Srivastava v. State of Bihar

(2019) 3 SCC 318 = AIR 2019 SC 2675).

Q.15 Is it correct to say that if the offence under Section 193 IPC is
not committed in a judicial proceeding, then it will fall
outside Section 195 (1) (b) Cr.P.C?

Ans. Yes. (vide Virinder Kumar Satyawadi v. State of Punjab AIR

1956 SC 153 – 3 Judges).

Q.16 Are the “Tribunal” and “Appellate Tribunal” under the

Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 Courts for the purpose of Section 195 (1) (b)
Cr.P.C.?
Ans. Yes. They have been deemed to be Courts for the purpose of
Section 195 (1) (b) Cr.P.C. as per Section 22 (3) of the Recovery
of Debts Due to Banks and Financial Institutions Act, 1993 .

Q.17 Is the “Income Tax Authority” under the Income Tax Act,
1961 a “Court” for the purpose of Section 195 (1) (b) Cr.P.C.?

Ans. Yes. Section 136 of the Income Tax Act, 1961 contains a
declaration to that effect.

Q.18 Alleging that an assessee under the Income Tax Act, 1961
committed an offence falling under Section 195 (1)(b) Cr.P.C
before the Income Tax Officer (“ITO” for short) during a
search under Section 132 of the Income Tax Act, 1961 the
Deputy Director of Income Tax (Investigation) files a
complaint before the Deputy Director, Income Tax
(Investigation) under Section 195 (1)(b) Cr.P.C on the ground
that the complainant is an authority to whom the ITO is
administratively subordinate. The accused challenges the
competency of the complainant. Will the accused succeed ?

Ans. Yes. What is required for an offence under Section 195 (1) (b)
Cr.P.C. is not administrative subordination but “judicial
subordination” as envisaged under Section 195 (4) Cr.P.C. The
authority to whom the ITO is subordinate within the meaning
of Section 195 (4) Cr.P.C. is the Deputy Commissioner (Appeals)
who is the appropriate Appellate Authority to which appeals
would ordinarily lie within the meaning of Section 195(4)
 Justice V. Ramkumar
10 Former Judge, High Court of
Kerala

Cr.P.C. (Vide Babita Lila and Another v. Union of India –

(2016) 9 SCC 647 = AIR 2016 SC 4061).

Q.19 Is the “Claims Tribunal” under the Motor Vehicles Act, 1988,
a “Court” for the purpose of Section 195 (1) (b) read with
Section 340 Cr.P.C. ?

Ans. Yes. Section 169 (2) of the Motor Vehicles Act, 1988 contains a
declaration to that effect.

Q.20 Is the “District Forum” under the Consumer Protection Act,

1986 a “Court” for the purpose of Section 195 (1) (b) read
with Section 340 Cr.P.C.?

Ans. Yes. Section 13 (5) of the Consumer Protection Act, 1986

contains a declaration to that effect.

Q.21 Is the “Commission” under the Monopolies and Restrictive

Trade Practices Act, 1969, a “Court” for the purposes of
Section 195 (1) (b) read with Section 340 Cr.P.C.?

Ans. Yes. Section 12 (2) of the Monopolies and Restrictive Trade

Practices Act, 1969 contains a declaration to that effect.
Q.22 Is an “Arbitrator” under the Arbitration and Conciliation Act,
1996, a “Court” for the purpose of Section 195 (1) (b) read
with Section 340 Cr.P.C.?

Ans. No. An “Arbitrator” under the Arbitration and Conciliation

Act, 1996 is not a Court and hence the question of applying
Section 340 Cr.P.C. to arbitral proceedings does not arise. (vide
Manohar Lal v. Vineesh Anand (2001) 5 SCC 407 = AIR
2001 SC 1820).

Q.23 Is a “Sales Tax Officer” a “Court” for the purpose of Section

195 (1) (b) read with Section 340 Cr.P.C.?

Ans. No. Merely because certain instrumentalities of the State have

to perform certain quasi-judicial functions, they are not treated
as “Courts”. (vide Jagannath Prasad v. State of U.P. AIR
1963 SC 416).

Q.24 Is a “Sub-Registrar” acting under the provisions of the Indian

Registration Act, 1908, a “Court” for the purpose of Section
195 (1) (b) Cr.P.C.?

Ans. No. He is not a Civil or Criminal or Revenue Court nor a

Tribunal of the nature mentioned in Section 195 (3) Cr.P.C.
(vide Ajoy Kumar v. Raj Ballav 1978 Cri.L.J. 1502
(Calcutta).
Q.25 A prosecution witness during the trial of a case before a
Judicial Magistrate of First Class (JMFC) refused to answer a
question put to him by the defense counsel. The accused
thereupon filed a petition for conducting a preliminary
inquiry under Section 340 Cr.P.C for prosecuting the witness
for an offence punishable under Section 179 IPC. JMFC
dismissed the petition. The accused filed an appeal before
the Sessions Court under Section 341 Cr.P.C. The Sessions
Judge allowed the appeal and directed the JMFC to make a
complaint before the Magistrate concerned. Is there any
defect in the procedure?

Ans. Yes. The offence punishable under Section 179 IPC is one falling
under Section 195 (1) (a) Cr.P.C committed before a Public
Servant. JMFC is also a Public Servant as per Section 21 of IPC.
But, when the Public Servant refuses to make a complaint, the
authority who can be moved is the administrative superior
who is the CJM. An appeal under Section 341 Cr.P.C will lie only
when there is refusal by the original Court to file a complaint in
respect of an offence falling under Section 195 (1) (b) Cr.P.C
and not under Section 195 (1) (a) Cr.P.C. So the appeal was
also incompetent.

Q.26 Is it not sufficient under Section 195 (1) (b) Cr.P.C. that “the
some other Court” to which the original Court is subordinate,
can be the Court to which the original Court is either
administratively or judicially subordinate?
Ans. No. The some other Court should be one to which the original
Court is judicially subordinate within the meaning of Section
195 (4) Cr.P.C. The administrative hierarchy should not be
applied for finding out which is the “some other Court”.

Q.27 If the offences enumerated under Section 195 (1) (b) Cr.P.C.
are committed before an Additional Munsiff, is it not
permissible for the Principal Munsiff or, the Sub-Judge or the
Additional Sub-Judge or the Additional District-Judge to file a
complaint in case the Additional Munsiff does not file or
refuses to file a complaint?

Ans. No. All those judicial officers may be administratively superior

to the Additional Munsiff. But, it is the “District Judge” who is
the Court to whom the Additional Munsiff is judicially
subordinate and to whom appeals ordinarily lie. (vide the
criterion laid down by the Constitution Bench of the Supreme
Court in Kuldip Singh v. State of Punjab AIR 1956 SC 391 – 5
Judges).

Q.28 If the offences enumerated under Section 195 (1) (b) Cr.P.C.
are committed before a Sub-Judge in Kerala, which Court will
be the some other Court which is superior to the Sub-Judge?
Is it the District Court or the High Court?

Ans. It will depend upon the valuation in the case as provided under
Section 13 of the Kerala Civil Courts Act, 1957. (vide
 Palakkatumala Devaswom v. Pylee 1969 KLT 275 (FB);
Jose Joseph v. Syndicate Bank 1997 (1) KLT 320 (DB).

Q.29 If the offences enumerated under Section 195 (1) (b) Cr.P.C.
are committed before a Sub-Court (“Reference Court”) under
the Land Acquisition Act, 1894 whether it will be the District
Court or the High Court which can initiate action under
Section 195 (1) (b) read with Section 340 (1) Cr.P.C.?

Ans. High Court. Since under the Land Acquisition Act an appeal
from the order passed by the Sub-Court lies only to the High
Court and not to the District Court, the High Court alone can
initiate action as a Court to which the Sub-Court is
subordinate. (vide State of A.P. v. Sarma Rao (2007) 2 SCC
159 = AIR 2007 SC 137).

Q.30 If the offences enumerated under Section 195 (1) (b) Cr.P.C.
are committed before a Division Bench of the High Court,
which is the original Court and the superior Court which can
initiate action?

Ans. The Original Court will be the Division Bench and the superior
Court would be the Supreme Court. (vide M.S. Sheriff v. State
of Madras AIR 1954 SC 397).
Q.31 Which among the following Courts

i. Court of the Addl. Sub-Judge

ii. Court of the Sub-Judge
iii. Court of the Addl. District Judge
iv. Court of the District Judge
v. Court of the Sessions Judge
vi. Court of the Addl. Sessions Judge
vii. Court of the Chief Judicial Magistrate
can initiate action as a “some other Court” if the offences
enumerated under Section 195 (1) (b) Cr.P.C. have been
committed before a judicial Magistrate of the first class?
Ans. The Court of the Sessions Judge is the Court to which appeals
ordinarily lie from sentences passed by the judicial Magistrate
of the first class within the meaning of Section 195 (4) Cr.P.C.
Hence the Court of the Sessions Judge is the superior Court
which can initiate action over and above the judicial
Magistrate of the first class before whom the offences were
committed. The other Courts may be Courts to which the
Magistrate may be administratively subordinate.
Section 195 (4) Cr.P.C must, however, be understood also in the
context of Article 227 of the Constitution of India, as per which
the High Court has superintendence over all Courts and
Tribunals throughout its territories. (vide Paras 24 to 26 of
Perumal v. Janaki (2014) 5 SCC 377 = 2014 Cri.L.J. 1454).
Q.32 Is there any distinction between the powers of a “public
servant” to whom the original public servant is
administratively subordinate with regard to offences covered
by Section 195 (1) (a) Cr.P.C. and the powers of the “some
other Court” to which the original Court is subordinate with
 regard to offences covered by Section 195 (1) (b) Cr.P.C., and
if so, what is such distinction?
Ans. Yes, there is a distinction. In the case of a superior public
servant, he can under Section 195 (2) Cr.P.C., order withdrawal
of the complaint preferred under Section 195 (1) (a) by the
original public servant, subject of course to the proviso
thereunder as per which the trial before the Magistrate should
not have been concluded. The superior public servant has no
appellate powers and the appeal under Section 341 Cr.P.C. does
not cover an offence falling under Section 195 (1) (a) Cr.P.C.
But in the case of a superior Court with regard to an offence
falling under Section 195 (1) (b) Cr.P.C., the power of
withdrawal of the complaint can be exercised by the Superior
Court only in an appeal as provided under Section 341 Cr.P.C.

Q.33 Which are the powers which a superior Court can exercise
under Section 340 Cr.P.C. with regard to any of the offences
covered by Section 195 (1) (b) Cr.P.C.?
Ans. The following are the powers of the superior Court:-
i. To make a complaint under Section 340 (2) Cr.P.C. to
the appropriate judicial Magistrate in a case where the
original Court has not either made a complaint or has
rejected a complaint under Section 340 (1) Cr.P.C., or
ii. To deal with under Section 340 (2) Cr.P.C., an
application filed by a person requesting to make a
complaint before the appropriate Magistrate, or
iii. To take suo motu action either under Section 340 (2)
Cr.P.C. or under Section 340 (1) Cr.P.C.
 In Perumal v. Janaki (2014) 5 SCC 377 the Supreme Court
has held that in appropriate cases the superior Court to which
the original Court is subordinate is under a duty to exercise its
powers under Section 195 Cr.P.C. even suo motu to maintain
purity of the legal system.
Q.34 Should not the application under Section 340 (1) Cr.P.C. be
filed by a party to the proceedings before the Court
concerned? Can a stranger to the proceedings make an
application under Section 340 (1) Cr.P.C.?
Ans. The application contemplated by Section 340 (1) Cr.P.C. can be
made by any person and it is not necessary that such person
must be a party to the original proceedings. (vide Murali
Krishna Das v. Inspector General of Police 1978 KLT 292
(kerala); R. Natarajan v. B.K. Subba Rao (2003) 2 SCC 76 =
AIR 2003 SC 541).
Q.35 Is the person against whom the Court might file a complaint
entitled to be afforded an opportunity of hearing?
Ans. No. The Court is not required to afford an opportunity of
hearing to the person. (vide paras 13 to 15 and 19 of
Prithish
v. State of Maharashtra (2002) 1 SCC 253 = AIR 2002 SC
236).
But in para 42 of State(Govt of NCT of Delhi) v. Pankaj
Chaudhary AIR 2018 SC 5412, the direction given by the
Delhi High Court to the Registrar General to lodge a complaint
without affording an opportunity of being heard to the persons
concerned, was set aside.
 In the State of Kerala Form No. 33 of Appendix 1 to the Kerala
Criminal Rules of Practice, suggests a notice is to be issued to
the person proceeded against under Section 195 (1) (b) Cr.P.C.
so as to give him an opportunity of being heard.

Q.36 Where the Court decides to proceed against the person, what
are the pre-requisites to be followed?
Ans. The pre-requisites under Section 340 (1) read with Section 195
(1) (b) are:
a. record a finding to the effect that it is expedient in the
interests of justice that an inquiry should be made into
an offence under Section ……… IPC which appears to have
been committed in / in relation to a proceeding in that
Court
or
record a finding to the effect that it is expedient in the
interest of justice that an inquiry should be made into an
offence under Section ……… IPC which appears to have
been committed in respect of a document produced or
given in evidence in the proceedings in that Court.

b. prepare a complaint in writing concerning the

aforementioned offence. (such complaint shall be signed either
by the presiding officer of the Court or by such officer as the Court
may authorise in writing in that behalf as provided under Section
340 (3) (b).
If the complaint is made by the High Court, it shall be
signed by such officer of the Court as the High Court may
appoint under Section 340 (3) (a).

c. the Court may authorise in writing an officer of the Court

or some other subordinate Court to make the complaint
as provided under the latter part of 195 (1) (b) Cr.P.C.
after Clauses (i) to (iii).

d. send the complaint to the Magistrate of the first class

having jurisdiction.
 e. take sufficient security for the appearance of the accused
before such Magistrate, or if the alleged offence is non-
bailable, send the accused in custody to the said
Magistrate, and

f. bind over any person to appear and give evidence before

such Magistrate.
(vide para 21 of Perumal v. Janaki (2014) 5 SCC 377 =
2014 Cri.L.J. 1454).

Q.37 When a complaint under Section 340 (1) Cr.P.C. has been
made to a Magistrate by the Court in respect of an offence
covered by Section 195 (1) (b) Cr.P.C., is not the Magistrate
entitled to try the case as one instituted on a complaint by
recourse to Chapter XV Cr.P.C. ?
Ans. No. The Magistrate to whom a complaint has been filed has to
try the case as if it were instituted on a Police Report in view of
Section 343 (1) Cr.P.C.

Q.38 Who are the persons entitled to file an appeal under Section
341 Cr.P.C. ?
Ans. Any person on whose application any Court (other than the
High Court), has refused to make a complaint under Section
340 (1) or Section 340 (2) Cr.P.C. can file an appeal. Likewise,
any person against whom a complaint has been filed by a Court
can also file an appeal.

Q.39 Which is the forum for appeal under Section 341 Cr.P.C.?
Ans. Appeal is to be filed before the Court to which the original
Court is subordinate within the meaning of Section 195 (4)
 Justice V. Ramkumar
20 Former Judge, High Court of
Kerala

Cr.P.C. If action is taken by the superior Court under Section

340 (2) Cr.P.C., then the appeal will lie to that superior Court to
which the Court taking action is subordinate within the
meaning of Section 195 (4) Cr.P.C. The forum for appeal under
Section 341 Cr.P.C. will have to be determined with reference to
the nature of the main proceedings before the Court which
initiated action under Section 340 (1) Cr.P.C. Thus, if the
offences were allegedly committed before a Munsiff, then the
forum for appeal is the District Court (to which appeals
ordinarily lie from decrees passed by such Munsiff) and not to
the Sessions Court even if it is the same Judge (District and
Sessions Judge) who hears appeals from both on the civil and
criminal side.

Q.40 What are the powers of the appellate Court under Section
341 Cr.P.C.?
Ans. The appellate Court may, after notice to the parties concerned,
direct the withdrawal of the complaint already made or may
direct the making of a complaint. (vide Section 341 (1) Cr.P.C.).

Q.41 Will not a revision lie against the original order under Section
340 (1) Cr.P.C. or against an appellate order under Section
341 (1) Cr.P.C.?
Ans. No. A revision is barred by Section 341 (2) Cr.P.C.

Q.42 Can the original Court under Section 340 (1) Cr.P.C. and the
appellate Court under Section 341 (1) Cr.P.C. order costs?
Ans. Yes. Section 342 Cr.P.C. confers such a power.

Q.43 Has the original Court the power to adjourn the hearing of
the case until the disposal of the appeal?
Ans. Yes. Section 343 (2) Cr.P.C. enables such a course in the
discretion of the Magistrate.
Q.44 What will be the nature of the appeal under Section 341
Cr.P.C. if the action taken either under Section 340 (1) Cr.P.C.
or under Section 340 (2) Cr.P.C. is by a civil Court or a
criminal Court?
Ans. If the action taken under Section 340 Cr.P.C was by a Civil Court,
then the appeal under Section 341 will lie to the Civil
Appellate Court as provided under Section 195 (4) Cr.P.C and
if the action taken under Section 340 Cr.P.C was by a Criminal
Court, then the appeal under Section 341 will lie to the
Criminal Appellate Court as provided under Section 195 (4)
Cr.P.C. Such appeal will have to be numbered and dealt with as
a criminal appeal. Recently, a Division Bench of the High Court
of Kerala in Lakshmi v. santha 2020 (2) KLT 843 = 2020 (3)
KHC 247 (Kerala DB) held that an appeal under Section 341
Cr.P.C whether arising from a Civil Court or Criminal Court has
to be registered as a Criminal Appeal. However, the forum for
appeal with reference to Section 195 (4) Cr.P.C was not dealt
with in the said decision. The Division Bench did not also
consider an earlier decision in Shibu George v. Jijimon
2019
(1) KLT 241. In Shibu George the proceedings under Section
340 Cr.P.C arose before a Sub-Court. The appeal was filed
 before the District Court. Pending appeal, the
appellant/plaintiff died and his son filed a petition before the
District Court for leave to continue the appeal. No orders were
passed on that petition. Later on, the appeal itself was
dismissed as abated. The above decision of the District Judge
was assailed before the High Court by the plaintiff’s son by
filing a Criminal Miscellaneous Case under Section 482 Cr.P.C.
The Registry of the High Court raised an objection about the
maintainability of the Crl.M.C. before the High Court against
the decision of the Civil Court. The matter was taken up on the
judicial side and the learned Judge upheld the objection of the
High Court Registry and also upheld the decision of the District
Court. The High Court, however, gave the son of the plaintiff
an opportunity to file applications before the District Court for
impleadment, for setting aside abatement and for condoning
the delay, which is the remedy available under Order XXII of
the Code of Civil Procedure, 1908 (“CPC” for short) to an
appellant in a civil appeal.
NOTE:- With due respect, the appeal under Section 341 Cr.P.C
should not have been treated as a civil appeal.

C ONCLUSION
In a prosecution of an offender for any of the offences
enumerated under Clause (a) or Clause (b) of Section 195 (1)
Cr.P.C., the following points to be borne in mind :-
S ECTION 195 (1)
(a)
a) Prosecution of offences covered by Clause (a) of Section 195
(1) Cr.P.C., if committed before a public servant can be
 launched in the form of a written complaint before the
appropriate Judicial Magistrate having jurisdiction to try
those offences, filed only by such public servant or by some
other public servant to whom he is administratively
subordinate.

b) The public servant who is administratively superior to the

public servant concerned can also launch the prosecution as
above and in that event, he can direct the withdrawal of a
complaint already made by the public servant concerned
provided the trial of the case has not concluded before the
Judicial Magistrate concerned.

c) The procedure under Section 340 Cr.P.C. is not applicable to

such complaints to be made by the public servant

d) Besides the power of withdrawal given to the superior public

servant, there is no appeal provided for against the exercise of
power under Section 195 (1) (a) Cr.P.C.

S ECTION 195 (1)

(b)

a) The combined effect of Section 195 (1) (b) and Section 340
Cr.P.C. is that in respect of the offences specified in sub-clauses
(i) to (iii) of Section 195 (1) (b) Cr.P.C., if committed in or in
relation to any proceeding before any “Court” (as defined u/s
195 (3) Cr.P.C.), the said Court or its superior Court within
the meaning of Section 195 (4) Cr.P.C., alone can file a
complaint in writing before the appropriate Judicial
Magistrate having jurisdiction to try those offences.

b) For the purpose of considering whether an inquiry into any of

those offences should be conducted or not before making the
aforesaid complaint in writing, such Court, either suo motu or
an application by any person (who need not necessarily be a
party to the proceedings before the Court) may or may not
conduct a preliminary inquiry under Section 340 Cr.P.C. If the
Court is of opinion that it is expedient in the interests of
justice to do so, it may make a complaint in the manner
provided u/s 340 (1) Cr.P.C by taking the measures
enumerated as (a) to (e ) in the answer to Question No.34
above.
 c) In appropriate cases the superior Court (to which the original
Court is subordinate within the meaning of Section 195 (4)
Cr.P.C.) is under a duty to exercise the powers under Section
195 Cr.P.C. even suo motu to maintain the purity of the legal
system.

d) The forum for appeal u/s 341 Cr.P.C. will have to be decided
depending on the nature of the proceeding before the original
Court in accordance with Section 195 (4) Cr.P.C. If the original
Court before which the offences enumerated under Section 195
(1) (b) Cr.P.C. have been committed, is a civil Court, the appeal
under Section 341 Cr.P.C. will lie before the civil appellate
Court within the meaning of Section 195 (4) Cr.P.C. If the
original Court is a criminal Court, the appeal therefrom under
Section 341 Cr.P.C. will lie before the criminal appellate court
within the meaning of Section 195 (4) Cr.P.C.

e) Whichever may be the appellate forum (whether Civil or

Criminal) since the appeal under Section 341 Cr.P.C. partakes
the character of a criminal appeal, it will have to be registered
and disposed of as a criminal appeal. On the death of any of the
parties to such appeal, if the death does not render the appeal
infructuous, it shall be disposed of on merits ignoring the
factum of death.

JUSTICE V. RAMKUMAR
Kochi, Former Judge,
09-07-2020 High Court of Kerala