This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article provides an understanding of Sections 340 to 352 of the Code of Criminal Procedure, 1973 by means of case laws.
Chapter XXVI of the Code of Criminal Procedure, 1973 lays down provisions as to offences affecting the administration of justice spread over Sections 340 to 352. The major purpose behind the Code of Criminal Procedure, 1973 is to ensure effective administration of justice by means of the procedural code that needs to be adopted by both the executive and the judiciary in order to dispose of criminal cases. Sections 340 to 352 specifically deal with ensuring the fulfilment of the purpose of the Code by means of providing the procedure that needs to be abided by while dealing with a list of offences that are hindrances to appropriate administration of justice. This article helps the readers understand the provisions of Chapter XXVI of the Code by means of notable case laws.
Sections 340 to 352 of the Code of Criminal Procedure, 1973
Before delving into the provisions with the help of landmark decisions, it is necessary to know as to what the Sections deal with;
- Section 340: Procedure in cases mentioned in Section 195;
- Section 341: Appeal;
- Section 342: Power to order costs;
- Section 343: Procedure of magistrates taking cognizance;
- Section 344: Summary procedure for trial for giving false evidence;
- Section 345: Procedure in certain cases of contempt;
- Section 346: Procedure when court considers that case should not be dealt with under Section 345;
- Section 347: When Registrar or Sub-Registrar to be deemed a civil court;
- Section 348: Discharge of offender on submission of apology;
- Section 349: Imprisonment or committal of a person refusing to answer or produce the document;
- Section 350: Summary procedure for punishment for non-attendance by a witness in obedience to summons;
- Section 351: Appeal for convictions under Sections 344, 345, 349 and 350;
- Section 352: Certain judges and magistrates not to try certain offences when committed before themselves.
Jadu Nandan Singh v. Emperor (1910)
The Calcutta High Court while deciding the pre-independence case of Jadunandan Singh v. Emperor (1910) highlighted the importance of a cautious approach that needs to be adopted while setting the criminal law in motion which accompanies a reasonable foundation of the charge in respect of which prosecution is to be directed. Section 340 of the Code of Criminal Procedure, 1973 has laid down the procedure for cases that are mentioned under Section 195 of the Code, and therefore Section 340 sets the criminal law in motion with respect to the offences that affect justice administration. The Hon’ble High Court’s decision, in this case, has been reiterated in the case of Ramautar Mistri v. Rajendra (1961) where the Patna High Court observed that no prosecution must be ordered on any ground if the reasonable probability of conviction was not found by the Court.
Chajoo Ram v. Radhey Shyam (1971)
It is to be noted that when an offence is in relation to a court as under Section 195 (1)(b) of the Code of 1973, the Court’s sanction is to be obtained first. In 1971 the Supreme Court of India upheld the decision made in the two previous cases in the well-known case of Chajoo Ram v. Radhey Shyam (1971). The Apex Court held that such a sanction must be granted in cases where the offence of perjury appears to be of a deliberate and conscious nature, and it must be accompanied by a conviction that is reasonable, and likely. By holding this, the top Court wanted to confer the information on other courts that starting a prosecution for perjury too frequently without due caution, and with reliance on doubtful materials would defeat the purpose of a careful prosecution, and cautious approach by the courts while setting the criminal law in motion thereby affecting proper administration of justice.
Pritish v. State of Maharashtra (2001)
A bench of Justices K.T. Thomas, S.N. Phukan, Y.K. Sabharwal of the Supreme Court of India upheld that the scheme of Sections 340 to 344 of the Code comprises an in-built safety for the individuals sought to be proceeded against, by obliging the court to afford an opportunity of being heard to them, in the case of Pritish v. State of Maharashtra (2001). The Apex Court observed that under Section 340 of the Code of Criminal Procedure,1973, the Court is not bound to conduct a preliminary inquiry. If the Court wishes to do so then, a finding should be made which would showcase that in the interest of justice, a preliminary inquiry is required in the case for the concerning offence. In the latter case, the purpose of such an inquiry is not to conclude whether the accused is guilty or innocent, instead, it is only to decide whether such inquiry is expedient in the interest of justice.
Somabhai Vallavbhai v. Aditibhai Parshottam (1924)
A bench of Justices N Macleod, and Kt. Shah of the Bombay High Court decided on the question as to whether a second appeal will lie before the High Court against an order passed on appeal under Section 341 of the Code of Criminal Procedure, 1973 or not in the case of Somabhai Vallavbhai v. Aditibhai Parshottam (1924). The Hon’ble High Court reasoned that where the first court makes a complaint or refuses to do so, then in such cases the appellate court may withdraw the complaint, or make one by itself. Therefore, no second appeal will lie to the High Court against an order that has been passed on appeal under Section 341 of the Code of 1973.
Amarsang Nathaji v. Hardik Harshadbhai Patel (2016)
The Supreme Court of India in the 2016 case of Amarsang Nathaji v. Hardik Harshadbhai Patel, observed two necessary prerequisites for initiating proceedings under Section 340 of the Code of Criminal Procedure, 1973 which are:
- Materials that have been presented before the court of law must be sufficient enough to make out a prima facie case for a complaint about inquiry purposes referred in clause (b)(i) of sub-section (1) of Section 195 of the Code of Criminal Procedure, 1973.
- Inquiry in the alleged offence in a particular case is necessary for the interest of justice.
The Apex Court went further to state that it has been provided under Section 343 that the magistrate has to deal with the complaint that has been filed under Section 340 of the Code, in the same way as a police report is concerned. The list of offences provided under Section 195 (1)(b)(i) all fall within the ambit of warrant cases, which ipso facto leads the magistrate to follow the procedure provided under Sections 238 to 243 of the Code. The procedure that has been provided under Section 340 needs to be resorted to only when the matter in concern is of a serious nature with caution.
Dwarka Prasad v. State of Madhya Pradesh (2016)
A single bench of the Madhya Pradesh High Court consisting of Justice P S Chouhan while delivering the judgment in the case of Dwarka Prasad v. State of Madhya Pradesh (2016) took into account Section 344 of the Code which provides a summary procedure for trial for giving false evidence. The Hon’ble High Court observed that under Section 344 of the Code, the Court of Session or the first-class magistrate has been empowered to try perjury cases that have been committed before them, and therefore punish the accused in such cases summarily. The two essential conditions that need to be taken care of before this power is exercised are:
- The witness appearing before the court before the latter has delivered the judgment have wilfully provided false evidence with the intention of getting such evidence used in the proceedings.
- The court trying the case must be convinced with the fact that trying the person accused of perjury is necessary for the interest of justice.
Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court (1883)
The scope of Section 345 of the Code of Criminal Procedure, 1973 that deals with the procedure in certain cases of contempt was discussed in the pre-independence case of Surendra Nath Banerjee v. The Chief Justice and Judges of the High Court (1883). It was observed that the contempt cases that are committed in the Court’s presence will be covered within the purview of Section 345. It is necessary to note that prior to the passing of the Contempt of Courts Act, 1971, the High Courts of India possessed similar powers like the English Superior Courts under the common law system which empowered the former to punish all contempt committed in reference to it summarily, just like the latter.
Kuber Nayak v. State (1962)
Section 349 of the Code of Criminal Procedure, 1973 which concerns imprisonment or committal of a person refusing to answer or produce a document, was provided with an interpretation in the case of Kuber Nayak v. State (1962). The Court of law observed that Section 349 of the Code is a special provision in connection with the witness who refuses to answer questions that are required under Section 179 of the Indian Penal Code, 1860. It has always been advised to resort to Section 349 of the Code of Criminal Procedure, 1973 before applying Section 345. But prior to applying Section 349, the three grounds which should satisfy the Court to apply the said provisions are:
- The witness must have been asked to produce a thing before a criminal court.
- The witness has refused to produce the asked thing or document which is in his or her possession.
- The witness has been provided with a reasonable opportunity to produce the asked thing but despite the same, the witness has refused to.
Satchidanand Jena v. State of Orissa (1996)
The Orissa High Court while deciding in the case of Satchidanand Jena v. State of Orissa (1996) took into account Section 350 of the Code which deals with the summary procedure for punishment for non-attendance by a witness in obedience to the summons. The Hon’ble High Court observed that whenever a witness is summoned and he or she fails to appear without a justified reason, the Court may try the witness summarily after giving him or her an opportunity to present his or her defence, followed by which the witness will be sentenced to fine which must not exceed Rs. 100. In this case, the Orissa High Court had quashed proceedings under Section 350 that was taking place against a witness who could not appear on the date that was fixed and provided with a reason for his absence thereby expressing his regret.
The provisions under Chapter XXVI of the Code of Criminal Procedure, 1973 are necessary to be well acknowledged because they take the responsibility of erasing any kind of hindrances that can encroach upon the administration of justice. The case laws that have been discussed in this article provide an explanation of the provisions under this chapter so that the reader can relate to the procedural aspect of the idea underlying beneath this chapter of the Code.
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