The civil court does not have inherent power to direct criminal prosecution, and the specific power is given under S.340 of the Code of Criminal Procedure.

P.A. Mohammed, J.

1. This is a case where civil court has initiated criminal prosecution against a party - litigant in a civil litigation. The question raised is whether the civil court has inherent power to initiate criminal proceedings under S.151 of the Code of Civil Procedure.

2. The facts required for the disposal of this case are briefly stated hereunder : The first petitioner who was residing in Bombay had agreed to sell her property through her power of attorney holder, the second petitioner, to the respondent, who had advanced an amount of Rs. 10,000/-. However, the transaction between the petitioners and the respondent did not take place and later it ended in the suit, O.S. No. 197/88 before the Munsiff's Court, Kodungallur. The said suit was filed by the respondent herein for realisation of the money advanced by him to the petitioners. He filed I.A. 664 of 1988 for attachment of plaint schedule property in O. S. No 197/88. In that proceedings, the petitioners took an undertaking before the court that the property would not be sold without obtaining permission from the court. However, the property was sold in violation of the said undertaking. Thereafter the respondent filed a petition for prosecuting the petitioners for violation of the undertaking. It was alleged therein that the petitioners had committed offences under S.193, 196, 199, 200 and 206 IPC. If was therefore prayed that the prosecution shall be initiated under S.340 of the Code of Criminal Procedure. However, the said petition was styled as one under S.151 of the Code of Civil procedure.

3. S.340 of the Code of Criminal Procedure reads thus:

340. Procedure in cases mentioned in S.195.

(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that if is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of sub-s.(1) of S.195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence its a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,

(a) record a finding to that effect:

(b) make complaint thereof in writing;

(c) send it to a Magistrate of the first class having jurisdiction;

(d) 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 so to do, send the accused in custody to such Magistrate; and

(e) bind over any person to appear and give evidence before such Magistrate.

What is contemplated under the above provision is only a preliminary enquiry in order to see whether the person concerned has committed any offence referred to in clause (b) of sub-s.(3) of S.195. The offences referred to in the above provisions are the offences punishable under S.193 to 96, 199, 200, 205 to 211 and 228 of the Indian Penal Code. The position of the court under S.340 of the Code of Criminal Procedure is just like any ether complainant in a criminal case, though the reasons recorded by it are likely to have great bearing and impact on the court trying the criminal prosecution. The accused in such cases shall have all defences as are generally available in criminal prosecutions. What is provided under this Section is only to take a decision by the civil court whether the criminal prosecution is necessary in the facts of the case. The provision contained in clause (a) to sub-s.(1) is meant for only to record a finding as to whether in a given situation the civil prosecution is expedient in the interest of justice.

4. Sri. P. Vijayabhanu, learned counsel appearing for the petitioner contended that the civil court has no inherent power to direct criminal prosecution and that the respondent having specifically filed the petition under S.151 CPC., the impugned order is liable to be set aside. The counsel has brought to my notic