Provisions as to Offence Affecting The Administration Of Justice

By | December 7, 2018
The Administration Of Justice

INTRODUCTION

It is a general rule in law that anybody can report an offence and Court takes cognizance of the offence. But due to the nature of certain offences under the Indian Penal Code, the legislature, has restricted this right in respect of certain offences, particularly in section 195 of Cr.p.c., 1973. The Public servants and Courts can therein take cognizance as mentioned in chapter XXVI, section 340 to 352, provisions as to offences affecting the administration of justice.

Section 190 of Cr.p.c. states that – A Court can take cognizance of any offence a) upon receiving a complaint of facts which constitute such offence, b)upon a police report of such facts, c)upon information received from any person other than a police officer, or d)upon his own knowledge, that such offence has been committed. This section empowers the Court to take cognizance of the matter reported to it by any individual.

However, section 195 of Cr.p.c is an exception to this rule. Section 195 of Cr.p.c. provides for the offences against public servants. It also states that the Court is barred from taking cognizance of any offence committed against public servant[1] unless reported by himself. No Court shall take cognizance of:

  1. the offences committed, or abetment to commit or attempt to commit, or criminal conspiracy to commit against a public servant [offence under section 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860)
  2. provides false evidence [ offence under sections 193 to 196 (both included), 199,200,205 to 211 (both inclusive) and 228 of the Indian Penal Code (45 of 1860) ]
  3. forgery [offence under section 463,471,475 or 476 of the Indian Penal Code (45 of 1860) ]

Procedure in cases mentioned in section 195 – Section 340 of Cr.p.c

This section lays down the procedure to be followed in offences mentioned in section 195 of Cr.p.c. When an offence is committed in relation to a public servant [s.195 (1) (a)] the sanction of a public servant should first be obtained. When the offence is in relation to a Court [s.195 (1) (b)] the sanction of the Court should be obtained first.

Any Civil, Criminal, Revenue Court can proceed under this section and hold a preliminary inquiry. It should then record a finding or should itself make a complaint in writing or forward it to the first class Magistrate having jurisdiction. No prosecution should be ordered without a reasonable probability of conviction through the authority taking action should not decide the question of guilt or innocence great care and caution is required before the criminal law is set in motion. There must be a reasonable foundation for the charge in respect of which a prosecution is directed.

*an Arbitrator cannot be termed as a Court within the meaning of this section and section 195. The question of applicability of section 340 to arbitral proceedings does not arise.

Appeal – Section 341 of Cr.p.c.

An appeal under this section from an order passed under section 340 by a Civil Court must be deemed to be a criminal appeal and the provisions of the Court so far as applicable to appeals apply to such an appeal. When an appeal under section 341 can be filed provided the contingencies described therein are present. The first category covers an appeal by a person who had made an application in a Court other than a High Court, praying for a complaint under sub-section (1) (2) of section 340 which has been refused. The other category covers an appeal by a person against whom such a complaint has been made in such Court. In either event concerned person has an option of filing an appeal to the Court to which the formal Court is subordinate within the meaning of sub-section(4) of section 195.

Power to order costs –Section 342 of Cr.p.c.

Any Court which is dealing with an application made to it for filing a complaint under section 340 or an appeal under section 341 has the power to make such order as to costs as may be just.

Power of Magistrate taking cognizance – Section 343 of Cr.p.c.

This section lays down the manner in which the complaints made under section 340 or section 341 are to be dealt with and states that such complaints should as far as may be dealt with as if the same way instituted on a police report under section 19 of the Code.

Summary procedure for trial for giving false evidence – Section 344 of Cr.p.c.

The offence for which a person can be summarily tried under section 344 Cr.p.c. is not the offence under sec 193 IPC. However, in order to make a person liable for perjury, it is necessary that he should have made a statement on oath regarding the facts to which his statement was based and deny this on oath on a subsequent occasion. If both the statements are opposed to each other and cannot be reconciled then the person may be liable to proceed against perjury under section 344 Cr.p.c. or under section 193 of IPC.

Procedure in certain cases of contempt –Section 345 of Cr.p.c.

This section enables a court to preserve its decorum and maintain its dignity. It provides a summary remedy to deal with certain kinds of contempt. It gives special power to a Court to deal with a case of an insult made to the Court in its presence. The Court is not bound to any evidence it can rely on its own opinion of what happened and can detain the offender in custody, take cognizance of the offence and sentence him. All this, however, must be done before the rising on the Court.

Procedure where Court considers that case should not be dealt with under section 345 – Section 346 of Cr.p.c.

When the Court considers that an offence under section 345 cannot be tried summarily by it or requires a heavier sentence it can after recording 1) the facts and  2) the statement of the accused forward him to a Magistrate in the ordinary way as if it were instituted on a police report. The Magistrates is not bound to follow the Special Procedure provided in sect 345[2].

When Registrar or Sub-Registrar to be deemed a court – Section 347 of Cr.p.c.

When the State government directs any Registrar or Sub-Registrar appointed under the Registration Act, 1908 shall be deemed to be a Civil Court within the meaning of sect 345 and sec 346.

Discharge of offender on submission of apology – Section 348 of Cr.p.c.

The offence described in section 345 is curable from satisfactory apology laid to the court under section 345 or section 346 has been followed.

Imprisonment or committal of person refusing to answer or produce the document –Section 349 of Cr.p.c.

This section is a special provision regarding the witness refusing to answer the questions as required by it under section 17 of IPC. If due to the persistence in the refusal, he may be dealt with according to the provision of section 344 or section 346.

Summary procedure for punishment for non-attendance by a witness in obedience to the summons –Section 350 of Cr.p.c.

Under this section, if a summoned fails to appear without just excuse the Court may try him summarily after hearing his defence and sentence him to fine not exceeding one hundred rupees. The Court has to follow the procedure prescribed for summary trials.

Appeals for convictions under sections 344, 345, 349 and 350 –Section 351 of Cr.p.c.

The right of appeal conferred by sub-section (1) is not controlled by any other provision of the Code. Therefore, an appeal against conviction and sentence under section 345, 349 and 350 of the Code under this sub-section even when the fine imposed does not exceed the limit prescribed by section 376.

Certain Judges and Magistrates not to try certain offences when committed before themselves – Section 352 of Cr.p.c.

A Magistrate who refuses to set aside an order sanctioning prosecution on the charge of perjury cannot try the case himself[3] nor can a Sessions Judge try a person whose trial has been directed by him for the offences of giving false evidence committed in the course of judicial proceedings of a criminal nature[4].

By Priyanka Chauhan
Government Law College
[1] Defined in Section 21 of Indian Penal Code, 1860

[2] Bipin Chandra Pal, (1907) 35 Cal 161.

[3] Seshadri Ayyangar, (1896) 20 Mad 383.

[4] Makhdum, (1892) 14 All 354


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