Petitioner a Public Servant being a Psychiatrist in service under the State Government has sought for an order quashing Annexure ‘A’ FIR and all proceedings taken pursuant thereto, seeking protection of the inhibition under Section 195(1)(b)(ii) of the Code of Criminal Procedure.

2. The question of legal importance for consideration in the case is as to what is the alternate remedy available to the aggrieved party when the offender seeks shelter from prosecution under the bar provided in Section 195(1)(b)(ii) in the absence of a complaint filed under Section 340 Crl.P.C. by the court concerned.

3. The petitioner is the second accused in Annexure ‘A’ FIR in Crime No.602 of 2002 of Thalassery police station registered for offences under Sections 465, 466, 468 and 471 I.P.C. r/w Section 34 thereof. The investigation in the case is already over and the police have submitted final report also in the case. The case has been registered also on the file of Judicial First Class Magistrate’s Court, Thalassery as C.C.515 of 2002.

4. The final report is extracted below for reference.

5. According to the petitioner the matter could not have been investigated into by the police and final report should not have been submitted before the Magistrate and that in any event the Magistrate should not have taken cognizance of the matter as the offences are alleged to have been committed in relation to documents given in evidence in O.S.232 of 1998 and O.S.336 of 1999 on the file of the Subordinate Judge’s Court, Thalassery.

6. The relevant provisions of Section 195 of the Code of Criminal Procedure reads:-

195(1) No Court shall take cognizance—

(a)(i)

(ii)

(iii)

(b)(i)

(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) except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.”

7. The Sub Judge Thalassery while disposing of the case by a common judgment in both the above suits only observed that Exts.B9, B10 and B11 documents which are prescriptions issued by the petitioner/second accused, a Psychiatrist are prima facie forged and fabricated in collusion with the first accused with a view to furnish false evidence before court to support the claim of the first accused and left the matter observing as follows:-

“It is for the other parties interested to probe deeper and work out the position further and find out what was the corresponding telephone number of DW2 in 1992 and when all that number of 1992 had undergone changes till 2000 and to take appropriate legal action both civil and criminal or otherwise as they choose fit in the matter.”

8. It is probably on account of such an observation in the judgment that the first plaintiff in O.S.232 of 1998 who was the first defendant in O.S.336 of 1999 has given Annexure “A” first information statement and caused the crime registered at the Thalassery police station. It is the contention of the petitioner that in view of the inhibition contained in Section 195(1)(b)(ii) of the Code of Criminal Procedure the Magistrate should not have taken cognizance of the final report submitted before him and that therefore Annexure “A” F.I.R. and proceedings pursuant thereto culminating in Annexure B final report which has been taken cognizance of by the Judicial First Class Magistrate, Thalassery has to be quashed.

9. It is now well settled that Section 195(1)(b) is mandatory Section 195(1)(b) and Section 340 shall be read together. Section 340 lays down the procedure as to how the bar imposed by Section 195(1)(b) is to be removed. The question whether the bar under Section 195(1)(b)(ii) operates in respect of a document forged prior to filing thereof in the court is seen submitted to be placed for consideration before a larger Bench of the Supreme Court vi