JASHWANTLAL BAPALAL Vs. NAVINCHANDRA CHANDULAL

JUDGEMENT

(1.) THE question referred to the full bench relates to the interpretation of Section 195(1)(c), Criminal Procedure Code. Sub -section (1) of Section 195 runs as follows; (1) No Court shall take cognizance - (a) of any offence punishable under Sections 172 to 188 of the Indian Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate; (b) of any offence punishable under any of the following sections of the same Code, namely, Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, except on the complaint in writing of such Court or of some other Court to which such Court is subordinate; or (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. The marginal notes to these three Clauses (a), (b) and (d) are 'prosecution for contempt of lawful authority of public servants,' 'prosecution for certain offences against public justice,' and 'prosecution for certain offences relating to documents given in evidence,' respectively. Sub -section (4) of this section states that the provisions of Sub -section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit them.

(2.) TWO views have been taken with regard to Clause (c) in Sub -section (1) of Section 195. Inre Narayan, Dhonddev (1910) 12 Bom. L.R. 383. it was held that the word 'offence' occurring as the third word in this clause is designedly used in a somewhat abstract manner and it is the offence in itself, not any particular offender's offence, which the section aims at. It was observed that this view was in accordance with Section 40, Indian Penal Code, where 'offence' is defined as a thing made punishable by the Code and that the clause deals with a case where there is a substantive offence committed by a party to a proceeding in any Court. At p. 385 it was observed:.This reading of the section appears to us to involve no undue straining of the language and to give a more reasonable interpretation than is arrived at by the rival construction; for, upon that construction while the prosecution of the main offender could not be instituted without a sanction, any minor aiders or abettors or accessories of his could be prosecuted without a sanction. That, we think, is hardly a result likely to have been contemplated. A different view has been taken by some other High Courts in certain cases, to which I will refer later. The question referred to the Full Bench is whether the decision in Narayan Dhonddev 's case lays down the correct law.

(3.) SUB -section (4) makes the provisions of Sub -section (1) applicable to conspiracies to commit offences named in Sub -section (1). For an offence of conspiracy there must be at least two persons. If, therefore, the offence, which is committed in relation to a proceeding in any Court, is that of conspiracy to commit an offence of the kind referred to in Clause (c), say, that of forgery, and if only one of the conspirators was a party to the proceeding before the Court, then an anomalous situation will arise, if it is held that a complaint of the Court is required only for prosecuting the conspirator who was a party to the proceeding in the Court and not for the other co -conspirator, who may have played only a minor part in the offence. The offence committed by both the conspirators is the same and there is no reason why the Legislature should have tried to draw a distinction between the two, requiring the complaint of the Court in one case and allowing a private party to prosecute in the other case. The better view, in our opinion, therefore, appears to be that where an offence of the kind referred to in Clause (c) has been jointly committed by several persons, only one of whom was a party to a proceeding in a Court, then the complaint of the Court will also be necessary in order to prosecute the other persons, who had jointly committed the offence, even though they were not parties to the proceeding before it.