The Supreme Court in Anil Kumar Goel v. Kushan Chand Kabrar explained the position with regard to applicability of the provisions contained in Section 340, Cr. P. C. and held that the provisions of Section 195 (1) (b) (ii) of Cr. P. C. would be attracted only when any offence under that section has been committed and it relates to a document which has been filed before the Court in evidence, that is, it is produced before the Court for being considered as evidence in the case.
In the instant case, the forged document was produced in a Government office and not in a Court; therefore, the provisions of Section 340, Cr. P.C. were not applicable because it was beyond the Court’s jurisdiction. As such, the appeal was dismissed and appellant’s request that the genuineness of the alleged document may be examined by the Court and a complaint be filed by the Court itself the said document was found to be forged, could not be entertained by the Court.
The Supreme Court, in Chajju Ram v. Radhey Shyam,- has observed that sanction to prosecute for offences specified above should be granted in those cases where the perjury appears to be deliberate and conscious and the conviction is reasonably probable. The Court further held that “to start prosecution for perjury too readily and too frequently without due care and caution and on inconclusive and doubtful material defeat its very end.”
Any Court, be it Civil, Revenue or Criminal Court, proceeding under Section 195 (1) (b) should first conduct a preliminary inquiry and record a finding. Thereafter, the Court itself should make a complaint in writing to the Magistrate first class having jurisdiction.
The prosecution should only be ordered when there is reasonable probability of conviction of the person guilty of the offence. The Court should make a complaint and it cannot directly make a complaint and it cannot directly order prosecution under this section. The complaint must set-forth the offence and should contain precise facts on which it is based, and the evidence available for proving the offence.
It must, however, be stated that absence of preliminary inquiry under this section does not per se violate the proceedings where a prima facie case has already been made out in the proceedings in which the offence is alleged to have been committed, or when there is sufficient documentary evidence on record and no oral evidence is called for.
This section requires the Court to make sure that a prima facie case has been made out upon the evidence before it for inquiring further into the question whether the offence alleged has or has not been committed.
The Court should also see that the prosecution has been undertaken in the interest of justice and not for satisfying the personal grudge of the litigant. The Court ordering for a complaint under this section itself should be of the opinion that the prosecution is expedient in the interests of justice.
The Court can direct an inquiry under this section sua motu or at the instance of a private person. A private individual at whose instance the inquiry under this section is made is not a complainant in the case. Where a Court is satisfied that it is expedient in the interest of justice that the offence alleged should be inquired into, it should make the complaint in writing signed by such officer as the Court may appoint, where the Court making complaint is a High Court, and the presiding officer of the Court, in any other case.
Any irregularity in the complaint shall not vitiate the proceedings as it is curable under Section 465 of the Code.
The Court may take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary to do so, send the accused in custody to such Magistrate. According to sub-section (2), a superior Court, to which the Court referred to in sub-section (1) subordinate, is empowered to act where the subordinate Court has neither made a complaint nor rejected an application for such complaint.
Before proceeding under Section 340, the Court must be satisfied that the party sought to be proceeded against committed the offence intentionally and deliberately. An affidavit submitted to the Court which is false, is also covered by this section.
In the case of K. Karunakaran v. E. Warner in a habeas corpus petition, the Home Minister had allegedly filed a false affidavit and the High Court after inquiry under Section 340, sanctioned a complaint for perjury against him. In a special leave petition moved by him to the Supreme Court, the Court held that it would not interfere unless the material produced before the High Court did not make out a prima facie case and it was not expedient in the interest of justice to sanction such prosecution.
Section 340 requires the Court desiring to put the law in motion to prefer a complaint either suo motu or on an application made to it in that behalf. But the section does not make it obligatory upon the Court to make a preliminary inquiry in every case before starting prosecution. The Court will be justified in initiating prosecution where it deems necessary to make inquiry into an offence under Section 19.5 in the interests of justice.
The Supreme Court has reiterated once again in Jay ram Paddickal v. Eachanawarriyar, that it would not interfere in a case where the High Court had directed that the accused be prosecuted under Section 340 of the Code.
In Smt. Krishna Mukerjee v. Narayan Mukherjee, it was alleged by the wife that ex parte divorce decree was obtained by her husband by practising fraud upon Court by furnishing false return of summons. Merely because signature of wife taken in Court did not tally with those appearing in ‘acknowledgement due’ card and return of process server, it cannot be inferred that husband has committed fraud in collusion with the process server. Therefore, this fact by itself could not be a ground for initiating criminal proceedings against the husband under Section 340 of the Code of Criminal Procedure.
In Rugmini Ammal (Dead by LR.) v. Narayna Reddiar and others it was alleged that there was no lease agreement and the respondent (tenant) had made alternations in the building unauthorized on the basis of a forged lease-deed and got the construction legalized by the local authority.
The appellants, therefore, prayed for conduct of an inquiry into the forged document and production of the said document as also filing of complaint. The Court initiated proceedings under Section 340, Cr. P.C. on the basis of document in question which was produced before the Government and not before Court.
Initiation of proceeding under Section 340 by the Court was challenged by respondents and the Division Bench of the Kerala High Court allowed the appeal. Therefore, the appellants moved the Supreme Court against the judgment of the High Court. The Supreme Court dismissed the appeal and held that the initiation of proceedings by the Court under Section 340 was without jurisdiction and therefore, liable to be set aside.