The provisions of these sections are mandatory and a Court has no jurisdiction to take cognizance of any of the offences mentioned therein unless there is a complaint in writing as required by the section concerned. There is absolute bar against the Court taking cognizance of the case under Section 182 of IPC except in the manner provided in Section 195 of Cr.P.C.
Where the complaint is not in conformity with the provisions of this section, the Court has no power even to examine the complainant on oath because such examination could be made only where the Court has taken cognizance of the case. The absence of complaint as required by the section is fatal to the prosecution and it is an illegality which vitiates the trial and conviction.
The Supreme Court, in Bashir-ul-Haq v. State, held that—Section 195 of Cr.P.C. requires that without a written complaint of the public servant concerned no prosecution for an offence under Section 182, IPC can be launched nor any cognizance of the case taken by the Court.
Since Section 195 and the succeeding four sections i.e., Sections 196, 197, 198 & 199 impose restrictions on the power of Magistrate to take cognizance of offence under Section 190, therefore, at the stage of taking cognizance of an offence, the Magistrate should make sure whether his power of taking cognizance of the offence has or has not been taken away by any of the clauses of Sections 195-199 of the Code.
Sub-section 1(a) of Section 195 provides that no Court shall take cognizance of any offence punishable under Sections 172 to 188, IPC or of abetment or attempt or criminal conspiracy to commit such offence.
Sections 172-188, IPC relate to offence of contempt of lawful authority of public servants, for example absconding to avoid service of summons, preventing service of summons, not producing a document when so required by a public servant, knowingly furnishing false information, refusing to take oath etc.
The provision of Section 195 (1) (a) being mandatory, any private prosecution in respect of the said offences is totally barred. Only the concerned public servants can make a complaint and initiate proceedings in respect of these offences.
The power to make the complaint can be exercised only by the public servant who is for the time being holding the office or is a successor-in-office of the public servant whose order is disobeyed or lawful authority disregarded and thus an offence under Sections 172 to 188, IPC has been committed.
The bar or limitation imposed by sub-section 1(a) of Section 195 equally extends to both cognizable as well as non-cognizable offences. It may be noted that all the offences covered by Sections 172 to 188 of IPC except the one under Section 188, are non-cognizable offences.
It may be noted that Section 195 being mandatory taking cognizance of any offence referred to therein without a proper complaint by the concerned public servant would be an illegality which cannot be cured by Section 465 of Cr.P.C.
Where in the course of the same transaction two offences are committed, out of which one falls under Section 195 and the other does not, and the offences are not constituted by the same act of the accused, then clearly a complaint under this section cannot be filed in respect of the offence not falling among the offences enumerated in it. But the provisions of this section cannot be evaded by resorting to devices or camouflages.
Clause (b) of Section 195(1) relates to prosecution for offences against public justice as contained in Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code. No Court shall take cognizance of any such offence or of attempt or abetment or of any criminal conspiracy to commit any such offence, when such offence is alleged to have been committed in, or relation to, any proceeding in any Court, except on a complaint in writing of that Court or of some other Court to which that Court is subordinate.
In the case of Mahesh Chand Sharma v. State of U.P., the appellant filed a complaint alleging that the respondents (accused persons) had fraudulently mutated their names in the land record. The land in question was purchased by the appellant under a registered sale deed.
The accused persons had colluded with the Area Lekhpal and acted behind the back of the appellant. Held, the offence committed did not relate to Court proceedings which is the essential requirement for applicability of Section 195 (1) (b) (ii).
The appellant had lodged the complaint as soon as he came to know about the evil designs of accused persons. The Apex Court ruled that the impugned order quashing taking of cognizance against accused by wrongly applying provision of Section 195 and resorting to Section 340 (which relates to procedure in cases mentioned in Section 195) was not proper.
As provided in sub-section (3); term ‘Court’ for this purpose means a civil, revenue or criminal Court and includes a tribunal constituted by Central or State Act. But it does not include a commission appointed under the Commission of Inquiry Act, 1952.
The Supreme Court, in Santosh Singh v. Izhar Hussain, observed that every incorrect or false statement does not make it incumbent upon the Court to order prosecution. The Court should exercise judicial discretion taking into consideration all the relevant facts and circumstances. It should order prosecution in the larger interest of justice and not gratify the feelings of personal revenge or vindictiveness or serve the ends of a private party.
In the case of R. Ruthinam v. Kamla Vaiduriam, a minor girl was in the custody of a person who was asked to produce the girl before the Madras High Court. The person produced a substitute girl identifying her and asserting her to the same girl. Therefore, the High Court was justified in lodging a complaint against that person for giving false evidence and misleading the Court.
Where a forged agreement of sale was filed before the Deputy Registrar Cooperative Societies (Housing) at Hyderabad, a private complaint for an offence under Section 467, IPC was held to be maintainable, as the cooperative Registrar is not a Court within the meaning of Section 195 of the Code.
In a case where the accused were alleged to have forged certain documents and filed a civil suit on the basis of those forged documents, it was held that procedure contemplated in Section 195 (2) (b) must necessarily be followed because offences under Sections 474 and 474-A of IPC are integral parts of the offences covered by Section 195 of the Code and form the same transaction.
A document is said to be ‘produced in Court’ when it is placed before the Court for the purposes of being tendered in evidence or for some other purpose.
Prosecution of a person for giving false statements, by and large, depends upon the gravity of the false statement and the circumstances under which such statement was made, also the object of making it and the impact it has on administration of justice. It has been held that a person cannot be prosecuted for the offence of perjury unless he has stated on oath, facts on which his first statement was based and then denied those facts on oath subsequently.
There cannot be a prosecution for alleged forgery under Section 195 (1) (b) (ii) where a document alleged to be forged was not itself produced in Court but a copy only of such document was produced.
The Supreme Court in Sachidanand Singh v. State of Bihar, has clarified that a prosecution for the offence of forgery would be possible under Section 195 (1) (b) (ii) only where the forgery was committed while the document was in custody of Court, i.e., custodia legis, but mere production of the document would not attract the bar of this section and in that case prosecution may be launched by any person.
Sub-section (4) deals with subordination of Courts for the purpose of this section. It is different from the subordination of Courts generally for the purpose of Cr.P.C. which is dealt with in Sections 15 and 23 of the Code.
Under this section, the Court to which appeal ordinarily lies from the appealable decrees or sentences of the Court, is the Court to which such Court is subordinate and in case of Civil Court from whose decrees no appeal lies, it is subordinate to the principal Court having ordinarily original Civil jurisdiction, within whose local jurisdiction such Civil Court is situate.
It has been held that the Court of single Judge of the High Court is subordinate to the Division Bench of the High Court which hears appeals from such Court in certain cases.
The two provisos to sub-section (4) deal with (1) subordination of Court whose appeal to more than one Court lies; and (2) subordination when there is dual jurisdiction i.e. where appeals from a Court may in certain cases go to a Civil Court and in other cases to revenue Court. In such cases the subordination must be decided according to the nature of the case in connection with which the offence is alleged to have been committed.
[195A. Procedure for witnesses in case of threatening, etc.—A witness or any other person may file a complaint in relation to an offence under Section 195A of the Indian Penal Code (45 of I860).]