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4.Mr.P.Saravanan, learned counsel for the revision petitioners, mainly contended that since the offences are said to have been committed in relation to a proceeding pending in the Magistrate court and particularly, in respect of the offences referred under Section 195[1][b][i] Cr.P.C., the learned Magistrate ought to have followed the procedure contemplated under Section 340 Cr.P.C. It is pointed out that as per Section 195[1][b][i] Cr.P.C., the offence under Section 205 IPC is also mentioned apart from the other offences and as far as the case on hand is concerned, the revision petitioners have been implicated mainly for the offence under Section 205 IPC and such being the position, the procedure to be adopted is only as contemplated under Section 340 Cr.P.C. It is further contended that as per the provision under Section.340[3][b] Cr.P.C., such a complaint is to be preferred and signed by the Presiding Officer of the court or by such officer of the court as the court may authorise in writing in this behalf. The learned counsel for the revision petitioner would contend that the procedure contemplated under Section 340(3)(b) of Cr.P.C. is not at all followed in the instant case and a complaint was preferred by the Head Clerk of Judicial Magistrate Court No.II, Pollachi, and the First Information Report was registered only for the offence under Sections 419 and 420 IPC. It is pointed out by the learned counsel for the revision petitioner that even in the said complaint it was specifically alleged that the offences alleged against the revision petitioners have been committed in respect of the pending proceedings and as such, Section 195 (1)(b)(i) and 340 of Cr.P.C., are attracted and therefore, there is a specific bar for investigation to be conducted by the police and the Court also cannot take cognizance for such offence committed during the pendency of legal proceedings. The learned counsel for the revision petitioner would further contend that even the prosecution has filed the charge sheet for the offences under Sections 205 r/w 109 IPC against A1 and under Section 205 IPC against A2 and the said offences are included under Section 195(1)(b)(i) of Cr.P.C. It is submitted that in view of the above said illegality, the entire proceedings is vitiated.

5. The learned counsel for the revision petitioners, in support of his contention, placed reliance on the Judgment of the Punjab and Haryana High Court in SARDUT SINGH Vs. STATE OF HARYANA reported in 1992 Crl.L.J. 354.

6.Heard the learned Additional Public Prosecutor on the submissions of the learned counsel for the revision petitioners. It is submitted by the learned Additional Public Prosecutor that a complaint was preferred by the Head Clerk of the Magistrate Court and on receipt of the said complaint, the respondent police has registered a case for the offences under Sections 419 and 420 IPC. It is further submitted that after the investigation, a charge sheet was filed for the offence under Sections 205 r/w 109 IPC against A1 and 205 IPC against A2. It is fairly submitted by the learned Additional Public Prosecutor that Section 205 IPC is included as one of the offences under Section 195[1][b][i] Cr.P.C. The learned Additional Public Prosecutor would further contend that since the conviction was on the plea of guilty made by the accused, it is not open for them, at this stage, to challenge the conviction on the plea that non-following of the procedure contained under Section 195[1][b][i] Cr.P.C., and Section 340 Cr.P.C., would vitiate the entire proceedings.

8.The matter does not rest here as the provisions of S.340 Cr.P.C., prescribing procedure in cases mentioned in S.195 Cr.P.C. further make it clear that the court where such offences mentioned in Sc.195 are committed shall suo motu or on the application of the aggrieved party shall record a finding regarding the forgery of any document or giving a false evidence and thereafter, make a complaint thereof in writing and despatch the same to the Magistrate 1st class having jurisdiction to take cognizance of such offences. It is further provided that the court shall take sufficient security for the appearance of the accused before such Magistrate, and bind over any person to appear and give evidence before such Magistrate. The reading of the above referred provisions of S.195 coupled with the procedure prescribed in S.340 C.P.C., absolutely leave no doubt that not only cognizance of such offences without the complaint in writing of the court concerned is barred but also the investigation into such offences because that will amount to taking over the function of the Court where forgery was committed by the investigating agency which is against the mandate of S.340 of the Criminal Procedure Code."

16. The principles laid down by the Punjab and Haryana High Court and the Division Bench of the Orissa High Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this case also, the learned Judicial Magistrate No.II, Pollachi, has ignored and overlooked the mandatory provisions under Sections 340 and 195 Cr.P.C. in respect of the offences said to have been committed by the revision petitioners relating to a pending proceedings. This Court is of the considered view that the non-compliance of the mandatory provisions under Sections 340 and 195 Cr.P.C. not only has caused serious prejudice to the accused, but also resulted in grave miscarriage of justice. The above said lapse on the part of the learned Magistrate by not preferring the complaint in writing in respect of the offences alleged to have been committed relating to a pending proceeding after recording the finding that it is expedient in the interest of justice to enquire into the offence as per provisions under Sections 340 and 195 Cr.P.C. is not a mere irregularity, but a serious illegality vitiating the entire proceedings right from the registration of the First Information Report culminating into filing of the charge sheet resulting in the conviction and sentence on the revision petitioners. This Court is also constrained to state that in view of the non-compliance of the procedure contemplated under Section 340 Cr.P.C., the revision petitioners also deprived of their opportunity to challenge the action of preferring the complaint against them, as per provision under Section 341 Cr.P.C. which would amount to failure of justice. As this Court has come to the conclusion, in view of the reasons stated earlier to the effect that the entire proceedings is vitiated, the plea of guilty by the revision petitioners for the alleged offence is immaterial.