Pratap Kumar Ray, J. - (1.) The Judgment of the Court was as follows : Heard the learned Advocates appearing for the parties.
(2.) This is an application under Section 482 of the Code of Criminal Procedure, 1973 assailing the order dated 5th September, 2005 passed by the learned Judicial Magistrate, 1st Class-ll, Port Blair, District-Andaman in C.R. No. 58/2005 whereby and whereunder the learned Court below issued the process against the present petitioner herein for allegedly committing an offence punishable under Section 182/191/193/200 of Indian Penal Code on the basis of the petition of complaint as filed under Section 200 of the Code of Criminal Procedure by the complainant therein alleging inter alia about filing of a false affidavit in a civil proceeding with reference to a Money Suit in connection with a partnership business which was being run by the present petitioner and the respondent-complainant herein under the name and style "Kim Beauty Parlour". The only point has been urged before this Court about jurisdiction of the learned Magistrate below to entertain the complaint filed by the complainant with reference to an issue namely the filing of an affidavit before the civil Court. To address this question, the statutory provision should be looked into first. Section 195 of the Code of Criminal Procedure, 1973 for brevity referred to as Cr.P.C. hereinafter, provides a statutory embargo of taking cognizance of any offence as detailed thereto until and unless a complaint in writing is filed by the public servant and/or the Court concerned as the case may be in terms of the alleged commission of offence under the Indian Penal Code as mentioned thereto. To appreciate the issue Section 195 of Cr.P.C. is set out herein below in extenso : - "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance - (a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) 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 administratively subordinate ; (b) (i) of any offence punishable under any of the following Sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding, in any Court, or (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate. (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively 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 : Provided that no such withdrawal shall he ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under a Central, Provincial or Slate Act if declared by that Act to be a Court for the purposes of this section. (4) For the purposes of clause (b) of sub-section (I), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate ; Provided that - (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate ; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
(3.) Learned Court below issued the process by taking cognizance of the offence under Sections 182, 191, 193 and 200 of the Indian Penal Code. Amongst those offences cognizance of which was taken. Section 182 of the Indian Penal Code has been mentioned in Section 195 (a)(i) of the Code of Criminal Procedure, 1973 which provides an embargo that except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate no Court should take cognizance of the said offence. Section 182 of the I.P.C. relates to an offence on false information with intent to cause public servant to use his lawful power to the injury of another person.;