Point of law: A party who is aggrieved by the inaction on the part of the court, where offences enumerated in Clause (b) of Sub Section (1) of Section 195 Cr.P.C. was committed, in initiating action under Section 340 of Cr.P.C., can only move to such court with an application under Section 340(1).

ORDER :

1. Can an aggrieved party directly file a private complaint under Section 200 of Cr.P.C. before the jurisdictional Magistrate in relation to offences enumerated in Clause (b) of Sub Section (1) of Section 195 of Cr.P.C.? This is the short question that falls for consideration in this Crl.M.C.

2. The petitioner claims to be the legally wedded husband of the respondent No.1, which is disputed by the latter. However, the fact that, they were in relationship is not in dispute. A crime was registered by the Payyoli Police Station as Crime No.390/2014 under Section 376(2)(n) of the IPC against the petitioner based on the complaint preferred by the respondent No.1. The allegation was that the petitioner committed rape on the respondent No.1 on false promise of marriage. After investigation, final report was filed and ultimately the petitioner was acquitted, as evident from Annexure 6 judgment. During the pendency of the above case, the petitioner filed original petition as O.P.No.259/2014 at the Family Court, Thalassery (for short, 'the Family Court') against the respondent No.1 for restitution of conjugal rights alleging that, she is his legally wedded wife. In the said proceedings, the petitioner filed Annexure 5 affidavit. In paragraph 3 of the affidavit, it was stated that the petitioner's marriage with the respondent No.1 was solemnized on 22/03/2009 at Perumalpuram Siva Temple, Kozhikode as per the custom prevailed in the Hindu Nambiar Community. Thereafter, the respondent No.1 filed Annexure 1 private complaint at the Judicial First-Class Magistrate Court, Payyoli (for short, 'the Magistrate court') alleging that Annexure 5 affidavit is a false one. It is also alleged in Annexure 1 that, two similar false affidavits had been filed by the petitioner in another two proceedings between the parties at the High Court and at the Sessions Court, Thalassery. However, those affidavits were not produced. According to the respondent No.1, the petitioner committed offences punishable under Sections 499, 196, 199, 200 and 209 of the I.P.C by filing false affidavit at the Court. The learned Magistrate conducted enquiry under Section 202 of Cr.P.C. Four witnesses were examined as PW's 1 to 4. Thereafter, the learned Magistrate took the case on file as C.C.No.380/2018 and issued process to the petitioner under Section 204 of Cr.P.C as per Annexure 2 order which is under challenge in this Crl.M.C.

3. I have heard, Sri.P.C.Anil Kumar, the learned counsel for the petitioner and Smt.S.Rekha, the learned Senior Public Prosecutor. Even though, notice has been served to the respondent No.1, there is no appearance.

4. As per Annexure 2 order, the learned Magistrate took cognizance of the offences under Sections 196, 199, 200 and 209 of the IPC which fall under Clause (b) (i) of Sub Section (1) of Section 195 of Cr.P.C. Those offences relate to false evidence and offences against public justice. The learned counsel for the petitioner submitted that in relation to offences enumerated in Clause (b) of Sub Section (1) of Section 195 of Cr.P.C., a complaint can only be filed by the court concerned as provided in Section 340 of Cr.P.C. and there cannot be a private complaint by the aggrieved party. I find force in the said argument.

5. For easy reference, Sections 195 (1) (b) and 340 of Cr.P.C are extracted below.

“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—

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(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