Report No. 41
Proceedings in The Case of Certain Offences Affecting the Administration of Justice
35.1. Analysis of chapter.-
Chapter 35 of the Code deals with proceedings relating to certain offences affecting the administration of justice. Having already provided that1 a criminal court shall not take cognizance of certain offences except on a complaint made by the court concerned, the Code now lays down what procedure the court concerned should adopt when such on offence appears to have been committed. There are, broadly speaking, three types of procedure provided in the Chapter for these offences.-
(i) complaint by the court concerned, dealt with in sections 476, 476A, 476B, 479A and 482;
(ii)commitment to the High Court or Court of Session, after inquiry by the court concerned, provided in sections 478 and 479; and
(iii) punishment by the Court itself, dealt with in sections 480, 481, 485, 485A and 486.
As regards the last type of procedure, the specific provisions on the subject are followed by a general rule,2 providing that in other cases, no criminal court (other than a Judge of a High Court) shall try any person for any offence referred to in section 195, when such offence is committed before itself or in contempt of its authority or is brought under its notice etc. in the course of a judicial proceeding.
It may also be noted that punishment of the offender is not obligatory, and the court is not bound to carry to its conclusion a proceeding initiated under these types of procedure. In certain cases,3 the court may, in its discretion, discharge the offender or remit the punishment, on his submission to the order or requisition of such court or on apology being made to its satisfaction.
For certain purposes, registering officers appointed under the Indian Registration Act can also be given powers of civil courts4 under the specified sections.
The offences to which the Chapter applies are, broadly speaking, of three type.-(i) perjury; (ii) forgery; and (iii) disobedience to orders of the court or other species of contempt of the authority of the court. Of the three types of procedure which we have mentioned above, the firs.-complaint to a criminal cour.-is permissible in all cases, while the second and third types of procedure are permissible for certain specified offence.-depending upon the gravity of the offence,5 nature of the offenc.-i.e. need for prompt action so as to remove obstructions which hinder the progress of the case6 or the circumstances in which the offence is committed,7 rendering immediate punishment necessary in order to maintain the dignity and prestige of the cour.-for example, where offences constituting certain types of contempt are committed in the view or presence of the court.
Bearing the scheme of the Chapter in mind, we shall now consider the changes needed in each section.
1. Section 195(1), clauses (b) and (c).
2. Section 487.
3. Section 484.
4. Section 483.
5. E.g. section 478, applicable to offences exclusively triable by the High Court or Court of Session.
6. E.g. sections 485 and 485A.
7. Sections 480 and 482.
35.2. Section 476.-
Section 476 is intended to be complementary to section 195. The scope should, therefore, be neither wider nor narrower than that of clauses (b) and (c) of su.-section (1) of section 195. But there is a discrepancy between the wording of section 195 and section 476; and this has led to a controversy as to the exact scope of section 476; and this controversy has given rise to another controversy whether the presiding officer of a court can make a complaint under section 476 in cases not strictly falling within the earlier section. We propose certain verbal changes in section 476 in order to emphasise that this section 476 applies only to the offences to which clause (b) or clause (c) of section 195(1) applies. We also think it desirable that section 476 should specifically cover abetment etc. of those offences, since section 195 applies to them also.1
Section 476 speaks of "a civil, revenue or criminal court", while section 195 uses the expression "court", and defines it.2 We propose to use the expression "court" in section 476 also, and to. provide that it has the same meaning as in section 195.
The last paragraph of section 476(1) provides that for the purposes of sub¬section (1), a Presidency Magistrate shall be deemed to be a Magistrate of the first class. This can be provided for briefly and more directly in the main paragraph. We recommend a drafting change for the purpose.
Under the proviso to section 476(1), the complaint in the case of a High Court is to be signed by such officer as the High Court may appoint. In the case of other courts, the complaint is to be signed by the presiding officer as provided in section 476(1), main paragraph. We wish to deal with both these matters in one su.-section, as they relate to the same subject. We recommend a verbal alteration to achieve this object.
1. See section 195(4).
2. See section 195(2).
35.3. Section 476(2).-
Under section 476(2), the Court to which a complaint is made under section 476 shall proceed "as if upon complaint under section 200". It was suggested during our discussions that since a complaint is made under section 476 by a responsible judicial officer (and after inquiry in most cases), the Court to which the complaint is made need not and should not hold another inquiry under Chapter 16 but should issue process under section 204. It was urged that when a superior Court had made a complaint, it was inappropriate that a Magistrate should again hold an inquiry or dismiss it under section 203. We, however, felt that there was no justification for totally dispensing with an inquiry under section 202.
The Court making the complaint under section 476 may not have made a thorough inquiry, and the Court taking cognizance of the offence under section 195 might like to have more materials before issuing process. The nature of the jurisdiction to be exercised by the Magistrate under sections 202 and 203 is not always similar to the nature of the proceedings held by the complaining Court under section 476. For instance, under section 202, further "Investigation" may be ordered, whereas an "inquiry" under section 476 is of a limited nature. It would not be correct to assume that one will serve the purpose of the other in every case.
35.4. Section 476(3).-
Under section 476(3), the trying Magistrate has a discretion to adjourn the case if there is an appeal in the main case. Some delay is caused by such stay; but we think that the nature of the proceedings under section 476 is such that such delay is inevitable. We do not recommend any change in this respect. It has even been suggested1 to us that stay should be mandatory in case of appeal but we would not like to substitute such a rigid provision either.
1. F. 3(2)/5.-L.C., Pt. XIII, S. No. 808 (Suggestion of a High Court Judge).
35.5. Section 476A.- No change of substance is required in section 476A.
35.6. Section 476.-right of appeal should remain.-
Section 476B provides for an appeal when a court makes or refuses to make a complaint under section 476. It has been suggested1 by a High Court Judge that the right of appeal should be taken away. We are unable to accept the suggestion. We recognise that the existing provision may cause some delay. Nevertheless, it is a salutary one, and should not be disturbed. Abolition of the provision relating to appeal2 may lead to an anomalous position.
If, for example, a court makes a complaint under section 476 to the effect that a document produced in evidence before the court was a forged one, and the appellate court, after hearing the appeal in the main case, comes to the conclusion that it was not a forgery, then the position of the appellate court would be helpless, if its power to direct a withdrawal of the complaint already made under section 476 is taken away (as proposed). Complaint of forgery is an offshoot of the main case, and its fate will in most cases depend on the view taken on the merits in the main case. This position is inescapable.
We are conscious of the fact that where the offence of forgery is alleged to have been committed in a civil suit, that suit may take a decade for its final disposal, and till then the complaint filed after an inquiry under section 476 may have to be kept pending. However unfortunate the effect of prolonged proceedings may be on the effective punishment of the offender, the difficulty is inherent in the nature of the offence and in the procedure contemplated by section 195. The only satisfactory solution seems to be to speed up the hearing of civil appeals and revisions.
1. F. 3(2)/5.-L.C., Pt. II, S. No. 33(a) (Suggestion of a High Court Judge).
2. Section 476B.
35.8. Section 476B and appeals to Supreme Court.-
It has been held by the Supreme Court1 that an appeal lies under section 476B to the Supreme Court from an order of a division bench of the High Court directing a complaint under section 476. In our view, this position should be altered by excluding the High Court from the scope of section 476B. So far as the High Court is concerned, there is no need for an independent right of appeal against its decision to make a complaint.
1. M.S. Sheriff, 1954 SCR 1144 (1147): AIR 1954 SC 397
35.9. Section 476 and revision.-
Orders under sections 476, 476A and 476B are, at present, regarded as subject to revision. In our view, the right of appeal conferred by section 476B is enough, and there should be no further proceeding by way of revision against such orders. An order under section 476 or under section 476A should be final, subject to the appeal provided for by section 476B; and an order under section 476B should be final, being itself an order passed on appeal. It is also necessary to set at rest the controversy as to whether the provisions of the Code of Civil Procedure or of the Code of Criminal Procedure will apply where the order of a Civil Court passed under section 476 is challenged in revision.
35.10. Sections 476, 476A and 476B recast.-
We accordingly propose that sections 476, 476A and 476B should be recast as follows.-
"476. Procedure in cases mentioned in section 195.- (1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in su.-section (1) or su.-section (4) of section 1951 which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessar.-
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is no.-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate;
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by su.-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under su.-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of su.-section (2) of section 195.
(3) 3 A complaint made under this section shall be signe.-
(a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; and
(b) in any other case, by the presiding officer of the Court.
(4) In this section, "Court" has the same meaning as in section 195.
476A. Appeal.- (1)4 Any person on whose application any Court other than a High Court has refused to make a complaint under su.-section (1) or su.-section (2) of section 476 or against whom such a complaint has been made by such Court, may appeal to the Court to which such former Court is subordinate within the meaning of su.-section (2) of section 195, and the superior Court may thereupon, after notice to the parties concerned, direct the withdrawal of the complaint or, as the case may be...make the complaint which such former Court might have made under section 476, and if it makes such complaint, the provisions of that section shall apply accordingly.
(2)5 An order under this section, and subject to any such order, an order under section 476, shall be final, and shall not be subject to revision.
476B. Procedure of Magistrate taking cognizance.- (1)6 A Magistrate to whom a complaint is made under section 476 or section 476A shall proceed to deal with it in the manner provided in Chapter XVI.
(2)7 Where it is brought to the notice of such Magistrate, or of any other Magistrate to whom the case may have been transferred, that an appeal is pending against the decision arrived at in the judicial proceeding out of which the matter has arisen, he may, if he thinks fit, at any stage adjourn the hearing of the case until such appeal is decided."
1. The reference is to the revised section 195; see para. 15.101 above.
2. c f section 476A.
3. c f. proviso to section 476(1).
4. Cf section 476B.
5. New provision.
6. Cf. sections 476(2) and 482(2).
7. Cf. section 476(3).