Report No. 41
15.91. Revised section relating to public servants.-
The first section may be as follows.-
"194. Prosecution for contempts of lawful authority of public servants.- (1) No Court shall take cognizanc.-
(a) of any offence punishable under sections 172 to 188 of the Indian Penal Code, or
(b) of any abetment of, or attempt to commit such offence, or
(c) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is subordinate.
(2) Where a complaint has been made by a public servant under su.-section (1), any authority to which he is subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the court no further proceedings shall be taken on the complaint."
15.92. Section 195(1), clauses (b) and (c).-
Under clauses (b) and (c) of section 195(1), the complaint of the civil, revenue or criminal court concerned is necessary for any criminal court to take cognizance of certain offences against public justice or certain offences relating to documents given in evidence. As observed in a Madras case,1 "this salutary rule of law is founded on common sense. The dignity and prestige of Courts of law must be upheld by their presiding officers, and it would never do to leave it to parties aggrieved to achieve in one prosecution gratification of personal revenge and vindication of a Court's honour and prestige. To allow this would be to sacrifice deliberately the dispassionate and impartial calm of tribunals and to allow a Court's prestige to be the sport of personal passions"
1. Ramaswamy v. P. Mudaliar, AIR 1938 Mad 173 (174).
15.93. Clause (c) should apply to witnesses also.-
It will be noticed that while clause (b) applies when any of the specified offences is committed in, or in relation to, any proceeding in any Court, clause (c) applies only when the offence of forgery etc. is alleged to have been committed by a party to any proceeding in court in respect of a document produced or given in evidence in such proceeding". An important point that has to be considered here is whether the restriction of the application of the section to a party to the proceeding should be retained.
The purpose of the section is to bar private prosecutions where the course of justice is sought to be perverted, leaving it to the Court itself to uphold its dignity and prestige. On principle, there is no reason why the safeguard in clause (c) should not apply to offences committed by witnesses1 also. Witnesses need as much protection against vexatious prosecutions as parties and the Court should have as much control over the acts of witnesses that enter as a component of a judicial proceeding, as over the acts of parties. If, therefore, the provisions of clause (c) are extended to witnesses, the extension would be in conformity with the broad principle which forms the basis of section 195.
1. An illustration of forgery by a witness is furnished by the facts in Dr. S. Dutt v. State of Uttar Pradesh, AIR 1966 SC 523.
15.94. Applicability to abetments.-
Another question which arises in this connection is whether persons who abetted the offence but are not parties to the proceeding come within the purview of clause (c). It would seem that their case is covered by su.-section (4) by which the provisions of su.-section (1) are made applicable to abetment.
In an old case,1 the Bombay High Court took the view that if a criminal court were to try the abettors it would in fact be taking cognizance of the principal offence committed by the party without a complaint from the court which is specifically forbidden by section 195(1)(c). They also observed that su.-section (4) of section 195 "appeared to lend countenance" to this view.
Many High Courts, however, have taken the contrary view that in the case of persons who are not parties to the proceeding and are alleged to have abetted the commission of forgery by a party, a complaint by the court is not necessary for prosecuting them. This leads to the somewhat incongruous situation that while the main offender could not be prosecuted without sanction, any minor aiders, or abettors or accessories of his could be so prosecuted.
1. Narayam Dhonddev Rishud (in re), (1910) 12 Bom LR 383.
15.95. When offence is committed by several persons.-
Another controversial point is, where an offence specified in clause (c) is alleged to have been committed by several persons of whom only one is a party to the court proceeding, can the others be prosecuted without a complaint from the court, and also, can the court make a complaint against those persons who are not parties? Different views have been expressed by the High Courts on both these questions.
15.96. Scope of clause (c) to be enlarged.-
Taking an ove.-all view of the matter and keeping in mind the object of the section, we consider that the scope of clause (c) should not be restricted to offences committed by parties to the court proceeding. The clause should apply when any of the specified offence is alleged to have been committed by any person in respect of a document produced or given in evidence in any proceeding. It should also apply, as provided in su.-section (4), to criminal conspiracies, abetments and attempts to commit any such offence in respect of any such document.
15.97. "Produced or given in evidence".-
Though the question has occasionally arisen whether and when a particular impugned document was actually "produced or given in evidence in such proceeding", the expression is clear enough and we do not consider it necessary to alter it.
15.98. Distinction between courts and quas.-Judicial tribunals.-
Su.-section (2) of section 195 defines the term "court" where it occurs in clauses (b) and (c) of su.-section (1) as including a civil, revenue or criminal court but not including a registrar or su.-registrar under the Indian Registration Act, 1877. (This reference is now to be read as a reference to the Indian Registration Act, 1908). In the Code as enacted in 1898, the definition used the word "means" instead of "includes". The latter word was substituted by the Amending Act of 1923. This naturally raises the question what else, besides civil, revenue and criminal courts, is covered by the generic term "court". As observed by the Supreme Court in Virinder Kumar Satyawadi v. State of Punjab, (1955) 2 SCR 1013 (1018).-
"It is familiar feature of modern legislation to set up bodies and tribunals and to entrust to them work of a judicial character but they are not courts in the accepted sense of that term. It may be stated broadly that what distinguishes a Court from a quas.-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it.
And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quas.-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court."
15.99. Recommendation regarding tribunals.-
In any concrete case this question is bound to raise difficult and complex issues. Consequently, we have a long series of cases over the years deciding what tribunals and officers acting in a judicial capacity should be regarded as courts and what should not be so regarded. The substitution of "includes" for "means" in the definition has, if anything, added to the difficulties of the problem. We consider that for the purpose of clauses (b) and (c), "court" should mean a civil court or a revenue court or a criminal court properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if it is declared by that Act to be a court for the purposes of this section.
This would make the position clear to all concerned, and particularly to criminal courts when required to take cognizance of offences falling within the scope of clause (c). They would then be left with the comparatively easy question whether the judicial body or authority before which the document was produced or given in evidence was a civil court or a revenue court or a criminal court.
15.100. Exclusion of registrars and su.-registrars.-
The present definition of "court" specifically excludes registrars and su.-registrars functioning under the Indian Registration Act. This appears to have been done in 1898 in order to settle controversy as to whether these officers when acting in a quas.-judicial manner in connection with the registration of documents should be regarded as courts for the purposes of section 195(1) of the Code.
The view of the Bombay High Court1 was that they were not courts since section 84 of the Indian Registration Act did not mention section 195 of the Code while declaring for what purposes they should be deemed to be public servants and the proceedings before them should be deemed to be judicial proceedings. A full bench of the Madras High Court2 held the contrary that the registrar who has the power under section 75 of the Act to summon and enforce the attendance of witnesses and to compel them to give evidence "as if he were a civil court" is in all essentials a court. The Allahabad High Court dissented from this view and observed3.-
"The word "court" must be taken in its ordinary sense, and the word would not in ordinary language be one used of the Registrar. Throughout the Indian Registration Act, the Registrar is described as an officer and his place of business as an office. When it is necessary to invest him with the powers of a court the language used is language which clearly implies that he is not a court. Section 75 of Act III of 1877 makes use of the expression 'as if he were a civil court'. In section 483 of the Code of Criminal Procedure he is to be deemed a civil court for special purposes."
We consider that the specific exclusion of registrars and su.-registrars is unnecessary, as they cannot be regarded as civil courts for the purposes of section 195.
"In clauses (a) and (b) of su.-section (1), the term 'court' means a civil, revenue or criminal court, and includes a tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a court for the purposes of this section."
1. Q.E. v. Tulja, ILR 12 Bom 36.
2. Atchayya v. Cangayya, ILR 15 Mad 138.
3. Q.E. v. Ram La!, ILR 15 All 141 (143).