Section 340 Cr.P.C. requires a prima facie Section 195 offence and recorded expediency in the interests of justice.

FIR No. 31 dated 28.03.2015 was registered at Police Station Dhand, Kaithal, under Sections 307 IPC and 25 of the Arms Act concerning a firing incident at a marriage function.

During investigation, Shivam alias Saurabh and Gaurav alias Sonu were allegedly produced before the police on 31.03.2015, arrested, entered in DDR No. 35 at Police Station Dhand, and taken to CIA Staff, Kaithal.

In a habeas corpus proceeding, a Warrant Officer visited CIA Staff on 31.03.2015 and found both persons there, but noted that no corresponding entry appeared in the CIA Roznamcha; they were consequently released.

While recording the acquittal, the Sessions Court directed a preliminary inquiry under Section 340 Cr.P.C. into whether the FIR was ante-dated, whether the accused had been formally arrested on 31.03.2015, and whether they had been lawfully taken to CIA Staff.

After the inquiry, the Sessions Court, by order dated 12.09.2017, directed that the order itself be treated as a complaint and initiated proceedings against the appellants for alleged offences under Sections 166, 167, 195, 196, 211, 220, 346, 465, 471 and 120-B IPC.

Whether the material before the Sessions Court satisfied the statutory requirements for invoking Sections 195 and 340 Cr.P.C., including the requirement that prosecution be expedient in the interests of justice.

Whether the alleged discrepancies in the arrest and custody records disclosed a prima facie case of an offence covered by Section 195(1)(b) Cr.P.C.

Whether the Sessions Court could direct that its order dated 12.09.2017 itself be treated as a complaint under Section 340 Cr.P.C.

Section 195(1)(b) Cr.P.C. bars cognizance of specified offences relating to false evidence, false charges and documents produced in evidence, except upon a written complaint by the concerned Court or a superior Court; Section 340 Cr.P.C. prescribes the procedure and requires the Court to form an opinion that it is expedient in the interests of justice to make such a complaint.

The power is discretionary and is not to be exercised merely because an offence appears to have been committed; the Court must consider the effect of the alleged act on the administration of justice.

Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, limits Section 195(1)(b)(ii) to the requisite offences concerning documents produced or given in evidence and emphasises the administration-of-justice test.

Pritish v. State of Maharashtra, (2002) 1 SCC 253, holds that a preliminary inquiry under Section 340 is only to assist the Court in deciding whether a complaint is warranted and is not a determination of guilt.

Under Chajoo Ram v. Radhey Shyam, AIR 1971 SC 1367, and the related principles in K. Karunakaran v. T.V. Eachara Warrier, AIR 1978 SC 290, and Dr. S.P. Kohli v. High Court of Punjab and Haryana, AIR 1978 SC 1753, prosecution for perjury or fabrication should be initiated cautiously, only where there is a reasonable foundation for deliberate and conscious falsehood.

The offences under Sections 166, 167, 220 and 346 IPC are not offences specified in Section 195(1)(b), and Section 465 IPC, by itself, does not fall within Section 195(1)(b)(ii).

The Court held that the Sessions Court relied principally on the Warrant Officer’s report, the absence of a CIA Roznamcha entry, and discrepancies in the police records.

These circumstances could create suspicion regarding the manner of arrest and custody and might justify departmental or administrative scrutiny, but they did not by themselves establish a prima facie case of deliberate fabrication or identify any specific statement or document knowingly fabricated for misleading the Court.

The Sessions Court also failed to analyse the ingredients of the particular IPC offences and did not distinguish between offences covered and not covered by Section 195(1)(b) Cr.P.C.

Further, the alleged manipulation occurred during investigation and the relevant documents were later placed before the trial Court; there was no finding that the documents were fabricated after being produced in Court, a distinction material under Iqbal Singh Marwah.

Most importantly, the acquittal resulted from the prosecution witnesses’ failure to identify the accused, not from reliance upon or rejection of the allegedly manipulated arrest records or ante-dated FIR.

The Sessions Court therefore failed to explain how the alleged irregularities had a direct and substantial impact on the administration of justice or why prosecution was expedient in the interests of justice.

It also adopted an improper procedure by directing that the impugned order itself be treated as the complaint instead of making a proper written complaint under Section 340 Cr.P.C.

The High Court set aside the order dated 12.09.2017 and the complaint/proceedings initiated under Section 340 Cr.P.C. against the appellants.

It held that the Sessions Court had not adequately satisfied the requirements of Sections 195(1)(b) and 340 Cr.P.C., particularly the existence of a clear prima facie offence within Section 195(1)(b) and the expediency of prosecution in the interests of justice.

The Court clarified that it expressed no opinion on the truth of the allegations concerning the appellants’ arrest, custody or preparation of police records, or on the permissibility of any departmental or other action in accordance with law.